Spengler v. Brand Energy Solutions, LLC, No. 2:2018cv00790 - Document 35 (W.D. Wash. 2019)
Court Description: ORDER granting defendant's 22 Motion to Compel Mental and Physical Examinations Pursuant to Fed. R. Civ. P. 35. Signed by Judge Thomas S. Zilly. (SWT)
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Spengler v. Brand Energy Solutions, LLC Doc. 35 1 HONORABLE THOMAS S. ZILLY 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON AT SEATTLE 9 10 GEORGE SPENGLER, an individual, 11 Plaintiff, vs. 12 BRAND ENERGY SOLUTIONS LLC, a Corporation, Defendant. 13 14 15 16 ) ) ) ) ) ) ) ) ) ) ) ) ) No. 2:18-cv-00790-TSZ ORDER GRANTING DEFENDANT’S MOTION TO COMPEL MENTAL AND PHYSICAL EXAMINATIONS PURSUANT TO FED. R. CIV. P. 35 THIS MATTER having been before the Court upon Defendant’s Motion to Compel 17 Mental and Physical Examinations Pursuant to Fed. R. Civ. P. 35, docket no. 22, the Court 18 having reviewed the records and the files herein, including the motion and supporting 19 declaration, response and supporting materials, reply and supporting materials, and the 20 pleadings and records on file herein; and the Court deeming itself fully advised; now therefore it 21 is hereby ORDERED that Defendant’s Motion is GRANTED as follows: 22 1. 23 24 Dr. Elizabeth Ziegler is permitted to perform a neuropsychological interview and examination of Plaintiff George Spengler as part of his Fed. R. Civ. P. 35 mental ORDER GRANTING DEFENDANT’S MOTION TO COMPEL FRCP 35 EXAMINATION - 1 25 FPDOCS 36063398.2 FISHER & PHILLIPS LLP 1201 Third Avenue, Suite 2750 Seattle, WA 98101 (206) 682-2308 Dockets.Justia.com 1 (neuropsychological) examination associated with this lawsuit, with the following 2 restrictions: 3 a. The examination will be done in Everett, Washington on or before October 31, 2019, at a mutually agreeable date and time. 4 b. 5 6 Plaintiff will appear at the examination and submit to the examination as set forth herein without cost to the Plaintiff. c. The Defendant shall be responsible for providing to Dr. Ziegler any background materials that she may rely upon in conducting her examination and this 7 information shall be provided to Plaintiff. 8 d. The examination shall last no longer than 6 hours with necessary breaks (restroom, 9 coffee, etc.). If desired, Plaintiff can arrange to have the examination scheduled to 10 11 take place over two half days (3 hours each, with breaks) instead of one full day. e. In the event that any problems arise during the course of the examination, Dr. 12 Ziegler will attempt to contact both attorneys for Plaintiff and Defendant in an 13 effort to promptly resolve any such disputes. 14 f. Dr. Ziegler will provide a list of her entire proposed collection of neuropsychological tests she proposes to give to Plaintiff at least one week in 15 16 advance of testing and will only select tests included in this list for her exam. g. The scope of the examination shall be a forensic neuropsychological examination of 17 the Plaintiff, consisting of an interview and standard neuropsychological tests and 18 assessments. Dr. Ziegler will not be performing a problem-focused physical examination. No x-rays, MRI’s, CT scans, nor any other invasive procedures are 19 permitted. 20 h. 21 22 Plaintiff shall not complete any medical history forms, pain diagrams, or intake forms related to the examination. Plaintiff shall complete testing forms provided by the examiner, if any. 23 24 ORDER GRANTING DEFENDANT’S MOTION TO COMPEL FRCP 35 EXAMINATION - 2 25 FPDOCS 36063398.2 FISHER & PHILLIPS LLP 1201 Third Avenue, Suite 2750 Seattle, WA 98101 (206) 682-2308 1 i. Upon request, Defendant will provide to Plaintiff’s expert, Dr. Vandenbelt, a complete copy of Dr. Ziegler's file and all raw MMPI testing data (if any), including 2 her entire written report, within thirty (30) days of the completion of the 3 examination. 4 j. 5 notes taken by the examiner, with the exception of raw testing data, to Plaintiff’s 6 7 Counsel for Defendant shall send a copy of the report, together with a copy of all counsel within five (5) business days after receipt by defense counsel. k. The report of the examiner shall be detailed and set forth separately all information the examiner has reviewed and relied upon to render opinions in this case; and this 8 shall include, but not be limited to, all of the medical information in this case and 9 any and all research and studies on which she may rely and all: 10 11 12 13 i. The examiner’s findings; ii. The results of all tests given; iii. The examiner’s diagnoses; and iv. The examiner’s conclusions and all facts and information reviewed and 14 15 relied upon to support each opinion. l. Dr. Ziegler agrees to appear for deposition at a time and place in the Seattle area 16 and agrees that $500 per hour is a reasonable hourly rate for time spent during the 17 deposition for billing by her to Plaintiff’s lawyer for her deposition time, and that the expert fee for the deposition shall start when she is sworn in and the deposition 18 starts and billing shall stop accruing when questioning ends at the deposition. There 19 shall be no prepayment requirements or minimum charges. Plaintiff’s counsel 20 21 22 agrees to pay Dr. Ziegler's bill within 14 days. m. No person, other than Dr. Ziegler, shall participate in any way in the examination and evaluation in this case (except her administrative / technical staff). 23 24 ORDER GRANTING DEFENDANT’S MOTION TO COMPEL FRCP 35 EXAMINATION - 3 25 FPDOCS 36063398.2 FISHER & PHILLIPS LLP 1201 Third Avenue, Suite 2750 Seattle, WA 98101 (206) 682-2308 1 n. Defendant's attorneys shall be responsible for providing a copy of this Order to Dr. Ziegler, at least twenty-four (24) hours before the scheduled examination. 2 o. 3 Unless otherwise ordered by the Court, this examination shall constitute Defendant’s single neuropsychological Fed. R. Civ. Pro 35 testing of Plaintiff for 4 this litigation by Defendant and Defendant shall have one other FRCP 35 5 examination regarding Plaintiff’s claimed orthopedic injuries, for which the parties 6 7 8 shall enter a separate Stipulation and Order. 2. Dr. John Burns is permitted to perform a physical interview and examination of Plaintiff George Spengler as part of his Fed. R. Civ. P. 35 physical (orthopedic) examination associated with this lawsuit, with the following restrictions: 9 a. 10 11 The examination will be done in Seattle, Washington on or before October 31, 2019 at a mutually agreeable date and time. b. Defendant shall be responsible for providing to Dr. Burns any background 12 materials that he may rely upon in conducting his examination and this 13 information shall be provided to Plaintiff. 14 c. The examination shall last no longer than 2 hours with necessary breaks (restroom, coffee, lunch, etc.). 15 d. In the event that any problems arise during the course of the examination, Dr. Burns 16 will attempt to contact both attorneys for Plaintiff and Defendant in an effort to 17 promptly resolve any such disputes. 18 e. The scope of the examination and questions shall include obtaining a medical history, performing a records review of all records and opinions in this case and 19 performing a problem-focused physical examination. No x-rays, MRI’s, CT scans, 20 nor any invasive procedures or tests are permitted. 21 22 f. The examiner shall submit the entire written report within thirty (30) days of the completion of the examination. 23 24 ORDER GRANTING DEFENDANT’S MOTION TO COMPEL FRCP 35 EXAMINATION - 4 25 FPDOCS 36063398.2 FISHER & PHILLIPS LLP 1201 Third Avenue, Suite 2750 Seattle, WA 98101 (206) 682-2308 1 g. Counsel for Defendant shall send a copy of the report, together with a copy of all notes taken by the examiner, to Plaintiff’s counsel within five (5) business days 2 after receipt by Defendant’s counsel. 3 h. Unless otherwise ordered by the Court, this examination shall constitute 4 Defendant’s single physical Fed. R. Civ. P. 35 examination of Plaintiff for this 5 6 litigation by Defendant. i. The examiner shall limit questions during this examination to facts which are relevant to the Plaintiff’s physical exam and prognosis. 7 8 j. The report of the examiner shall be detailed and set forth separately all information the examiner has reviewed and relied upon to render opinions in this case; and this 9 shall be limited to the medical information in this case and/or any/all research and 10 studies on which he may rely, all of which shall be stated in his report along with: 11 i. The examiner’s findings; 12 ii. The results of all tests given; 13 iii. The examiner’s diagnoses; and 14 iv. The examiner’s conclusions and all facts and information reviewed and relied upon to support each opinion. 15 k. 16 l. Plaintiff shall not complete any written forms related to the examination. Defendant's attorneys shall be responsible for providing a copy of this Order to Dr. 17 Burns at least twenty-four (24) hours before the scheduled examination. 18 m. 19 20 21 Defendant and Defendant’s attorney shall keep the doctor’s reports confidential except for purposes of this case. n. Dr. Burns agrees to appear for deposition at a mutually agreeable time and place in the Seattle area. The parties understand that Dr. Burns charges $900 per hour for his deposition, but Plaintiff does not necessarily agree that this is a reasonable 22 hourly rate for time spent to take his deposition. This issue may be explored further 23 24 ORDER GRANTING DEFENDANT’S MOTION TO COMPEL FRCP 35 EXAMINATION - 5 25 FPDOCS 36063398.2 FISHER & PHILLIPS LLP 1201 Third Avenue, Suite 2750 Seattle, WA 98101 (206) 682-2308 1 at a later date. The expert fee for the deposition shall start when the deposition 2 begins and shall stop accruing when questioning at the deposition ends. A true and correct copy of Dr. Burns’ fee schedule is attached hereto as Exhibit A. Plaintiff’s 3 counsel agrees to pay Dr. Burns’ bill within 14 days once they agree on what is a 4 reasonable hourly rate for deposition in this case. 5 3. Plaintiff is prohibited from having any third-party observer attend either the mental 6 (neuropsychological) examination with Dr. Ziegler or the physical (orthopedic) 7 examination with Dr. Burns. The Plaintiff may have a third-party nearby (but not in the exam room), and may visit with that person on breaks. 8 4. Plaintiff is prohibited from recording (video or audio) either the mental 9 (neuropsychological) examination with Dr. Ziegler or the physical (orthopedic) 10 11 examination with Dr. Burns. DATED this 1st day of October, 2019. 12 A 13 Thomas S. Zilly United States District Judge 14 15 16 Presented by: FISHER & PHILLIPS, LLP 17 18 19 20 21 22 23 24 By: ____________________________ Suzanne Kelly Michael, WSBA #14072 Matthew J. Macario, WSBA #26522 Fisher & Phillips, LLP 1201 Third Avenue, Suite 2750 Seattle, WA 98101 Phone: (206) 682-2308 Facsimile: (206) 682-7908 Email: smichael@fisherphillips.com Email: mmacario@fisherphillips.com Attorneys for Defendant ORDER GRANTING DEFENDANT’S MOTION TO COMPEL FRCP 35 EXAMINATION - 6 25 FPDOCS 36063398.2 FISHER & PHILLIPS LLP 1201 Third Avenue, Suite 2750 Seattle, WA 98101 (206) 682-2308
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