Opinion
20-cv-2172-MMA-RBB
09-03-2021
BRETT GARDNER, Plaintiff, v. CARLOS DEL TORO, SECRETARY, DEPARTMENT OF THE NAVY, [1] Defendant.
ORDER GRANTING JOINT MOTION FOR RULE 35 EXAMINATION OF PLAINTIFF BY DR. DOMINICK ADDARIO
Hon. Ruben B. Brooks United States Magistrate Judge.
Before the Court is the parties' Joint Motion for Order Authorizing Rule 35 Examination of Plaintiff by Dr. Dominick Addario. [Doc. No. 19.] Good cause appearing, the parties' Joint Motion is GRANTED.
IT IS SO ORDERED THAT:
1. Plaintiff shall make himself available for an examination by Dr. Dominick Addario, which shall include a face-to-face interview, a mental status evaluation, and psychological testing. The examination will be conducted pursuant to and under the authority of Federal Rule of Civil Procedure 35, and will take place on September 7, 2021, at 10:00 a.m., at 3010 First Avenue, San Diego, California 92103.
2. The examination is expected to last four to six hours, excluding breaks. There will be no invasive testing. The scope of the examination will include an interview and testing. The examination will consider all mental health issues before, during, and after Plaintiff's employment with Defendant. The examination may be audio recorded by Dr. Addario. If so, a copy of that audio recording will be provided to Plaintiff's attorney within 24 hours of the examination. Plaintiff may audio record the entire proceedings or parts thereof as Plaintiff wants.
3. Plaintiff shall answer all questions submitted by Dr. Addario that are properly incident to the examination. Plaintiff shall otherwise cooperate with Dr. Addario so that the examination can be properly conducted, and Plaintiff can be fully and accurately evaluated.
4. Only Plaintiff and Dr. Addario (including his staff) shall be present in the examination room during the examination. Plaintiff's attorneys and legal representatives, Defendant's attorneys and legal representatives, and all other third parties shall not attend, participate, or otherwise be present in the examination room after the examination begins or while it is underway.
5. Plaintiff agrees that Defendant may provide Dr. Addario with copies of any records pertaining to Plaintiff that are in Defendant's possession or under Defendant's control and relate to Plaintiff's claims herein, including without limitation records that may be contained in a [system of records] as that terms is defined in the Privacy Act of 1974, 5 U.S.C. § 552a. Plaintiff hereby waives and releases any Privacy Act protection with respect to the release of the records or the disclosure of information, as specified herein.
6. Defendant shall pay for Dr. Addario's fee associated with the examination. If, however, Plaintiff fails to appear at the scheduled examination without good cause, Plaintiff will be responsible for a reasonable non-appearance fee.
7. Defendant shall serve a copy of Dr. Addario's report on Plaintiff in accordance with Federal Rule of Civil Procedure 26(a)(2) and the operative Scheduling Order. Defendant shall pay for such copy. Plaintiff shall be allowed to take the deposition of Dr. Addario prior to trial, provided the deposition is properly noticed and taken during the expert discovery period set forth in the operative Scheduling Order.
8. The parties agree that the psychiatric/medical examination of Plaintiff shall not be referred to in this litigation, to the jury or otherwise, as an “independent” medical or mental examination.
The psychological testing may include, but is not limited to, the following tests: MMPI-2; Millon Clinical Multiaxial Inventory; Wahler Physical Symptoms Inventory Test; Shipley Intellectual Assessment Test; The Measurement of Depression Test of Zung's; Beck Depression Inventory Test; and Beck Anxiety Inventory Test.
IT IS SO ORDERED.