Holmes, et al., v. Home Depot USA, Inc. et al.,

Filing 161

STIPULATION Concerning Physical Examination of Plaintiff, Alice Holmes and ORDER, signed by Judge Sandra M. Snyder on 2/17/2009. (Herman, H) Please NOTE: the correct case number to be USED on ALL pleadings - 1:06-cv-01527-SMS. Do NOT use AWI as part of the case number, this is a Consent case.

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MCCORMICK, BARSTOW, SHEPPARD, W AYTE & CARRUTH LLP
5 RIVER PARK PLACE EAST FRESNO, CA 93720-1501

Daniel P. Lyons, # 95334 Mark B. Busick, # 132839 McCormick, Barstow, Sheppard, Wayte & Carruth LLP P.O. Box 28912 5 River Park Place East Fresno, CA 93720-1501 Telephone: [phone] Facsimile: [phone] Attorneys for Defendant WALBRO ENGINE MANAGEMENT LLC

(SPACE BELOW FOR FILING STAMP ONLY)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

ALICE HOLMES AND VERNON HOLMES, Plaintiffs, v. HOME DEPOT USA, INC.; MTD PRODUCTS, INC.; BRIGGS & STRATTON CORPORATION; WALBRO CORPORATION; AND DOES 1 to 50, Inclusive, Defendants.

Case No. 1:06-cv-01527 -SMS STIPULATION CONCERNING PHYSICAL EXAMINATION OF PLAINTIFF, ALICE HOLMES AND ORDER [Federal Rule of Civil Procedure 35]

This Stipulation concerning the physical examination of Plaintiffs ALICE HOLMES is entered into by and between Plaintiffs ALICE HOLMES AND VERNON HOLMES and Defendants HOME DEPOT USA, INC.; MTD CONSUMER GROUP, INC.; BRIGGS & STRATTON CORPORATION; and WALBRO ENGINE MANAGEMENT LLC (hereinafter collectively referred to as "the Parties"), and is made in reference to the following facts: A. The Parties have agreed that Plaintiff, ALICE HOLMES will undergo a physical

examination pursuant to Federal Rule 35 because her physical conditions, specifically the nature and extent of their injuries, if any, sustained in an August 7, 2005 grass fire at the Coulterville, California acreage are in controversy in this case. Also in controversy is Plaintiff, ALICE

HOLMES' need, if any, for future medical care and treatment for the injuries she allegedly
STIPULATION REGARDING PLAINTIFF, ALICE HOLMES PHYSICAL EXAMINATIONS & (PROPOSED) ORDER 1:06-CV-1527 SMS

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MCCORMICK, BARSTOW, SHEPPARD, W AYTE & CARRUTH LLP
5 RIVER PARK PLACE EAST FRESNO, CA 93720-1501

sustained in the August 7, 2005 grass fire. B. Under Federal Rule of Civil Procedure 35, this Court may order a party to submit

to a physical examination when a party's mental or physical condition is in controversy in the case. Plaintiff, ALICE HOLMES is a party in this case. The physical condition of Plaintiff, ALICE HOLMES is in controversy in this case. C. As to Plaintiff, ALICE HOLMES, the parties have agreed that Plaintiff will

present to licensed California physician, Donald Huene, M.D., who is board certified in Orthopedic Surgery by the American Board of Orthopaedic Surgery, for a physical examination to be performed by Dr. Huene. (1) Plaintiff's physical examination by Dr. Huene is scheduled to occur on

March 16, 2009 at 9:00 a.m. at the Office of Donald R. Huene, M.D., 201 North Valeria, Fresno, California 93701 [phone]. (2) The nature of the examination will be a routine complete physical

examination. The scope of the examination will include obtaining a history from the patient; a review of the patient's medical records; and a general physical examination, including, but not limited to, upper and lower extremities, head, neck, shoulders, back, hips, pelvis, knees, motor sensation, reflexes, and any other part of Plaintiff's body claimed to have been injured in the subject accident. The examination also may require radiographic studies if necessary. No invasive procedures, such as blood or urine samples, will be required. Plaintiff will not submit to any diagnostic test or procedure that is painful, protracted, or intrusive, whether or not said testing is deemed relevant. Plaintiff will not discuss nor answer any questions as to how the fire that underlies this case occurred. Plaintiff will answer questions concerning the nature and extent of her injuries sustained in the fire and the nature and extent of her present complaints. Defense counsel will instruct Dr. Huene to make only such inquiries of Plaintiff as are medically necessary for Dr. Huene to form his medical conclusions and opinions. (3) Plaintiffs' counsel may record or may designate a representative to record

the entire audio content of the physical examination. Plaintiffs' counsel shall inform defense 2
STIPULATION REGARDING PLAINTIFF, ALICE HOLMES PHYSICAL EXAMINATIONS & (PROPOSED) ORDER

1:06-CV-1527 SMS

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MCCORMICK, BARSTOW, SHEPPARD, W AYTE & CARRUTH LLP
5 RIVER PARK PLACE EAST FRESNO, CA 93720-1501

counsel of the full names of any persons who will be present with Plaintiff at her examination so that Dr. Huene and his staff may be informed in writing of their names and will authorize these persons to be present for the examination in accordance with Dr. Huene's practice of preserving the medical privacy rights of patients. (4) The physical examination of Plaintiff is expected be completed within two

hours. Dr. Huene requires at least a fourteen (14) day cancellation notice. Plaintiff, ALICE HOLMES, will be responsible for Dr. Huene's service charge for any failure to comply with this cancellation policy. (5) Dr. Huene's fees for performing this examination will be shared by all

Defendants in this case. Defendants will provide Plaintiffs' counsel with a copy of Dr. Huene's written report concerning his findings and his opinions formed in the course of performing his physical examination of Plaintiff and through his review of Plaintiff's medical records. The

report will set forth the history and examinations and any findings, diagnoses and prognoses made by Dr. Huene. Every effort will be made to provide Dr. Huene's report to Plaintiffs' counsel within 30 days of the date of the Plaintiff's physical examination. ACCORDINGLY, the Parties hereto, by and through their respective attorneys of record, STIPULATE AND AGREE to the following order: That Plaintiff, ALICE HOLMES present to licensed California physician, Donald R. Huene, M.D., Orthopedic Surgeon, for a physical examination to be performed by Dr. Huene on March 16, 2009 at 9:00 a.m. at the Office of Donald R. Huene, M.D., 201 North Valeria, Fresno, California 93701 [phone]. That all parties and their respective counsel comply with the above terms and conditions under which Plaintiff's physical examination is to take place. The parties, by one of the undersigned counsel for each party, agree that this STIPULATION CONCERNING THE PHYSICAL EXAMINATIONS OF PLAINTIFF, ALICE HOLMES AND (PROPOSED) ORDER may be signed by counsel pursuant to Local Court Rule 7-131(e), and that all counsel listed below have authorized the submission of this STIPULATION AND (PROPOSED) ORDER to this Court. /// 3
1:06-CV-1527 SMS

STIPULATION REGARDING PLAINTIFF, ALICE HOLMES PHYSICAL EXAMINATIONS & (PROPOSED) ORDER

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MCCORMICK, BARSTOW, SHEPPARD, W AYTE & CARRUTH LLP
5 RIVER PARK PLACE EAST FRESNO, CA 93720-1501

IT IS SO STIPULATED: Dated: February 13, 2009 McCORMICK, BARSTOW, SHEPPARD, WAYTE & CARRUTH LLP

Dated: February 13, 2009

By: /s/ Mark Busikc (as authorized on January 9, 2009) Mark B. Busick Attorneys for Defendant WALBRO ENGINE MANAGEMENT LLC BARADAT, EDWARDS & PABOOJIAN

By: /s/ Warren Paboojian (as authorized on February 11, 2009) Warren R. Paboojian Attorneys for Plaintiffs ALICE HOLMES and VERNON HOLMES Dated: February 13, 2009 JENKINS, GOODMAN, NEUMAN & HAMILTON

Dated: February 13, 2009

By: /s/ Tom Prountzos for Joshua Goodman (as authorized on February 5, 2009) Joshua S. Goodman Attorneys for Defendant HOME DEPOT PORTER, SCOTT, WEIBERG & DELEHANT

Dated: February 13, 2009

By: /s/ Chris Egan (as authorized on January 9, 2009) Anthony S. Warburg Chris Egan Attorneys for Defendant MTD PRODUCTS, INC. DRYDEN, MARGOLES, SCHIMANECK & WERTZ

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By: /s/ Chris Egan (as authorized on January 17, 2009) Lawrence A. Margoles Samuel M. Zaif Attorneys for Defendants BRIGGS & STRATTON CORPORATION

STIPULATION REGARDING PLAINTIFF, ALICE HOLMES PHYSICAL EXAMINATIONS & (PROPOSED) ORDER

1:06-CV-1527 SMS

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MCCORMICK, BARSTOW, SHEPPARD, W AYTE & CARRUTH LLP
5 RIVER PARK PLACE EAST FRESNO, CA 93720-1501

ORDER GOOD CAUSE HAVING BEEN SHOWN AND THE PARTIES HAVING

STIPULATED TO THE SAME, the Court finds that the above-stated STIPULATION CONCERNING THE PHYSICAL EXAMINATIONS OF PLAINTIFF, ALICE HOLMES is sanctioned by the Court, pursuant to Federal Rule of Civil Procedure 35 and shall be and now is the Order of the Court. All Parties in this action shall abide by the terms of this STIPULATED ORDER CONCERNING THE PHYSICAL EXAMINATIONS OF PLAINTIFF, ALICE HOLMES. IT IS SO ORDERED Dated: 2/17/2009 /s/ Sandra M. Snyder SANDRA M. SNYDER U.S. MAGISTRATE JUDGE

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STIPULATION REGARDING PLAINTIFF, ALICE HOLMES PHYSICAL EXAMINATIONS & (PROPOSED) ORDER

1:06-CV-1527 SMS

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