Huang v. Wing et al, No. 2:2022cv00449 - Document 27 (W.D. Wash. 2023)
Court Description: ORDER granting 26 Stipulated MOTION and Order Regarding FRCP35. Plaintiff Junxiong Huang shall attend an FRCP 35 examination by Dr. Leah Keylard, a clinical audiologist hired by the attorneys for the Defendants, pursuant to the terms and conditions set forth in the Stipulation attached to this Order. Signed by Judge Tana Lin. (MJV)
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Huang v. Wing et al Doc. 27 1 2 THE HONORABLE TANA LIN 3 4 5 6 7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 8 9 JUNXIONG HUANG, an individual, No. 2:22-CV-00449-TL 10 Plaintiff, 11 v. 12 13 14 KENNETH WING and JANE DOE WING, husband and wife, and the marital community comprised thereof; and STATE FARM FIRE AND CASUALTY COMPANY, a foreign corporation, 15 STIPULATION AND ORDER REGARDING FRCP 35 EXAMINATION BY DR. LEAH KEYLARD, AuD. Defendants. 16 17 18 I. BACKGROUND INFORMATION The above action is one for personal injury caused by a motor vehicle collision. Plaintiff 19 Junxiong Huang (“Plaintiff”) alleges that he sustained injuries as a result of the negligent conduct 20 of Defendants Kenneth Wing and Jane Doe Wing (“Defendant”), (collectively referred to as “the 21 Parties”), and specifically that he has temporary and/or permanent partial hearing loss. Pursuant 22 to Fed. R. Civ. P. 35 and for good cause, Defendant has requested a diagnostic audiogram of 23 Plaintiff. A requirement of this Rule is that there be a mental or physical condition “in 24 controversy.” Fed. R. Civ. P. 35(a)(1). The parties wish to stipulate to the following without the 25 need for a motion, a defense showing of good cause, or a formal hearing. STIPULATION AND ORDER REGARDING FRCP 35 EXAMINATION BY LEAH KEYLARD, AUD (CAUSE NO. 2:22-CV-00449-TL) - 1 Dockets.Justia.com 1 II. STIPULATION 2 THE PARTIES, by and through their respective counsel of record, Meredith A. Sawyer 3 and Natalia Bendis, counsel for Defendant, and Anthony Marsh and Xi “Cissy” Wang, counsel 4 for Plaintiff, stipulate that: 5 1. 6 7 The examiner shall be Dr. Leah Keylard, AuD (“Examiner”). The examination shall occur on _September 25th, 2023_ at _9:00_ a.m. The examination shall take place at Key 8 Hearing Audiology and Vestibular Balance, 4300 Talbot Rd S Suite 313, Renton, WA 98055, or 9 at another location as arranged by the Parties. 2. 10 The examination to be conducted is a diagnostic audiogram of the Plaintiff for 11 purposes of assessing hearing loss. The examination shall consist of a series of audiometric 12 testing, consisting of air and bone pure tone testing, speech reception threshold testing, and 13 14 possibly, speech discrimination testing. The entire series of testing will take no more than one hour. 15 3. The first test, pure tone air testing, involves placing headphones over the 16 Plaintiff’s ears and presenting tones at different frequencies and at different intensities, and asking 17 18 19 the Plaintiff to respond when he hears the sounds. The second test, pure tone bone testing, involves placing an oscillator on the Plaintiff’s skull behind the ear and presenting tones at 20 different frequencies and at different intensities and asking the Plaintiff to respond when he hears 21 the sounds. As discussed with the Plaintiff, the Examiner may also pursue impedance audiometry, 22 which involves placing a probe in Plaintiff’s ears and, depending on the test, may transmit some 23 pressure and sound— measuring the ears’ response to the stimulus presented through the probe. 24 The last test would consist of Otoacoustic Emissions, wherein a probe is placed in Plaintiff’s ears, 25 wherein a series of clicking noises at different frequencies are presented, measuring the ears’ STIPULATION AND ORDER REGARDING FRCP 35 EXAMINATION BY LEAH KEYLARD, AUD (CAUSE NO. 2:22-CV-00449-TL) - 2 1 response to the stimulus. 2 4. The Plaintiff shall have the right to have a representative present during the 3 examination to audio record the examination, with the understanding that the representative will 4 not obstruct or interfere with the examination in any manner. Defendant does not have a right to 5 6 have a representative present at the exam other than the Examiner. 5. 7 Defendant will arrange for and provide an interpreter for Plaintiff to interpret as 8 necessary from English to Cantonese and from Cantonese to English to facilitate understanding 9 between Plaintiff and the Examiner during the examination. 6. 10 If the Plaintiff is asked to complete any forms, a copy of those forms shall be 11 delivered to the Plaintiff’s attorney for his/her review no less than 5 days prior to the examination. 12 In the event there is any dispute regarding the forms, counsel for the Plaintiff and Defendant will 13 work to resolve that issue prior to the date of the examination. 14 7. No questions shall be asked of the Plaintiff by the Examiner or staff which in any 15 way relates to negligence or legal liability. This restriction does not limit the Examiner’s inquiry 16 into the physical dynamics of any alleged injury occurrence relevant to the Plaintiff’s present 17 18 condition or the Plaintiff’s physical or mental capacities. 19 8. The Examiner may not perform or order any invasive tests, except as detailed 9. The Examiner shall submit his or her written report of the examination to defense 20 above. 21 22 counsel within 30 days of the examination and in no event less than 30 days prior to trial. Defense 23 counsel shall cause a copy of the report to be delivered to Plaintiff’s counsel within 3 business 24 days of its receipt. 25 10. The following should be furnished to Plaintiff’s counsel with the Examiner’s report: STIPULATION AND ORDER REGARDING FRCP 35 EXAMINATION BY LEAH KEYLARD, AUD (CAUSE NO. 2:22-CV-00449-TL) - 3 1 (1) Copies of all written materials and documents used or relied upon by the Examiner in 2 conducting the examination. This includes any factual materials and documents furnished to the 3 Examiner by Defense counsel, including all E-mails or other written communications between 4 defense counsel and the Examiner pertaining to the examination and formation of the opinions 5 6 7 set forth in the report. (2) Copies of all tests given to Plaintiff by the Examiner as completed or filled out by Plaintiff, together with all notes or data generated by the Examiner or done by 8 Plaintiff. (3) All data obtained or used by the examiner in conducting the exam. (4) Results of all 9 tests, measurements and calculations completed regarding the exam and (5) All billing records 10 and correspondence to or from the Examiner concerning the examination. 11 11. Pursuant to Fed. R. Civ. P. 35(b), the Examiner’s report shall be in writing and 12 shall set out in detail the Examiner’s findings, including diagnoses, conclusions, and the results 13 14 of any tests. 12. The report and all of its contents shall be confidential and shall be used only in 15 connection with this lawsuit. 16 13. Plaintiff shall be permitted to depose the Examiner upon reasonable notice and 17 18 19 agreement of the date, time, and place, but in any event on a date not less than forty-five (45) days prior to the scheduled trial date. Defense counsel will recommend to the Examiner that she 20 agree to allow counsel to accept service of a subpoena duces tecum for her deposition and 21 production of documents in order to save Plaintiff the cost of process service. 22 14. The Examiner shall not charge Plaintiff more than $800 per hour for time related 23 to taking such deposition. 24 25 STIPULATION AND ORDER REGARDING FRCP 35 EXAMINATION BY LEAH KEYLARD, AUD (CAUSE NO. 2:22-CV-00449-TL) - 4 1 15. A copy of this Stipulation and Order shall be given to the Examiner at least twenty- 2 four hours before the examination. The Defendant’s attorney shall be responsible to see that the 3 Examiner is apprised of the limitations herein stipulated. 4 16. Nothing in this Stipulation and Order shall be construed as otherwise limiting the 5 6 7 8 Parties’ respective rights and safeguards provided by Fed. R. Civ. P. 35. DATED THIS 28th day of August 2023. HERMANN LAW GROUP 9 10 11 s /s/Anthony Marsh Anthony Marsh, WSBA No. 45194 Xi “Cissy” Wang, WSBA No. 51235 Attorneys for Plaintiff 12 13 HWS LAW GROUP LLP 14 15 16 17 18 s/Meredith A. Sawyer Meredith A. Sawyer, WSBA No. 33793 msawyer@hwslawgroup.com Natalia Bendis, WSBA No. 60012 nbendis@hwslawgroup.com Attorneys for Defendants Kenneth Wing and Jane Doe 19 20 21 22 23 24 25 STIPULATION AND ORDER REGARDING FRCP 35 EXAMINATION BY LEAH KEYLARD, AUD (CAUSE NO. 2:22-CV-00449-TL) - 5 1 ORDER 2 The parties, having stipulated to an FRCP 35 Examination of Plaintiff Junxiong Huang 3 pursuant to the terms and conditions of the stipulation recited above, 4 IT IS HEREBY ORDERED that Plaintiff Junxiong Huang shall attend an FRCP 35 5 6 7 8 9 examination by Dr. Leah Keylard, a clinical audiologist hired by the attorneys for the Defendants, pursuant to the terms and conditions set forth in the Stipulation attached to this Order. IT IS SO ORDERED. Dated this 29th day of August 2023. A 10 11 Tana Lin United States District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 STIPULATION AND ORDER REGARDING FRCP 35 EXAMINATION BY LEAH KEYLARD, AUD (CAUSE NO. 2:22-CV-00449-TL) - 6
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