Berman v. Reynolds et al

Filing 41

STIPULATION and ORDER for Rule 35 Physical Examination, signed by Magistrate Judge Stanley A. Boone on 1/27/2015. (Kusamura, W)

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DANIEL C. CEDERBORG
County Counsel
MICHAEL R. LINDEN
Deputy County Counsel – State Bar No. 192485
FRESNO COUNTY COUNSEL
2220 Tulare Street, 5th Floor
Fresno, California 93721
Telephone: [phone]
Facsimile: [phone]
Attorneys for Defendants
COUNTY OF FRESNO and TRACY SINK

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA – FRESNO DIVISION

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RICHARD P. BERMAN,

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Case No. 1:13-cv-00597-LJO-SAB
Plaintiff,

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STIPULATION FOR RULE 35
PHYSICAL EXAMINATION; ORDER

v.

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DEPUTY T. SINK; SGT. GEORGE
BERTSCH; LT. JOHN REYNOLDS;
SHERIFF MARGARET MIMS; THE
COUNTY OF FRESNO, THE JUDICIAL
COUNCIL OF CALIFORNIA; DOES 110,

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Defendants.

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Defendants

COUNTY

OF

FRESNO

and

TRACY

SINK

(hereinafter

“Defendants”), and plaintiff RICHARD BERMAN (hereinafter “Plaintiff”) hereby submit
the following Stipulation for an order requiring Plaintiff to submit to a physical
examination, pursuant to Rule 35 of the Federal Rules of Civil Procedure (hereinafter
“Rule 35”).
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Stipulation for Rule 35 Physical Examination

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Case No. 1:13-cv-00597-LJO-SAB

RECITALS

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WHEREAS, on March 26, 2013, Plaintiff filed his complaint in the Fresno County

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Superior Court, alleging physical injuries resulting from an incident on March 13, 2012,

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when he was arrested in the lobby of the Fresno County Superior Court.

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alleges that when he was arrested by defendant Deputy Tracy Sink, he told her that “he

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was recovering from a recent, serious spinal surgery,” and that as a result of the

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incident, he “injured his back, neck, arm and stomach/groin area.” Complaint, para. 15.

Plaintiff

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WHEREAS, on April 23, 2013, Defendants removed Plaintiff’s action to this

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Court. Doc. Nos. 1-5. Under the operative scheduling order, the non-expert discovery

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cut-off date is April 3, 2015. Doc. No. 34.

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WHEREAS, counsel for the parties have conferred with respect to Defendants’

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desire to have Plaintiff submit to a physical examination pursuant to Rule 35. Plaintiff

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has no objection to submitting to such an examination, so long as he is allowed to

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record the proceedings by either video and/or audio sound recording.

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WHEREAS, under Rule 35, the court may order a party whose physical condition

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is in controversy to submit to a physical examination “by a suitably licensed or certified

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examiner.” Fed. R. Civ. P. 35, subd. (a)(1). For the proposed physical examination,

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Defendants will retain Donald R. Heune, M.D., 201 N. Valeria Street, Fresno, CA 93701.

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Dr. Heune is a licensed physician who specializes in orthopedic surgery. Dr. Heune will

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examine Plaintiff concerning the nature and extent of his alleged injuries, including the

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effect that the subject arrest may have had on Plaintiff’s recovery from his spinal

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surgery, and will question Plaintiff only with respect to the issues set forth in this

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paragraph. An appointment has tentatively been scheduled for February 2, 2015, at

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2:00 p.m.; however, the parties may change the date of the appointment if necessary.

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WHEREAS, under subdivision (a)(2)(A) of Rule 35, it states that an order “may

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be made only on motion for good cause and on notice to all parties and the person to be

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examined.” Based on this subdivision, on December 30, 2014, Defendants filed a Rule

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Stipulation for Rule 35 Physical Examination

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Case No. 1:13-cv-00597-LJO-SAB

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35 motion. Doc. Nos. 35-37. As Plaintiff previously agreed to submit to a Rule 35

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examination, he did not oppose this motion. However, on January 22, 2015, the Court

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denied the motion without prejudice because there was no showing that the parties

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attempted to meet and confer about the matter, as required by the Local Rules. Doc.

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No. 39.
STIPULATION

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Now, therefore, IT IS HEREBY STIPULATED AND AGREED, by and between

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the parties, through their respective attorneys of record that good cause exists to have

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Plaintiff submit for a Rule 35 examination, and that Plaintiff will submit to such an

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examination at a day and time mutually agreeable between the parties, and on the

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conditions set out in the recitals.
IT IS SO STIPULATED.

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Dated: January 27, 2015
DANIEL C. CEDERBORG
County Counsel

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By:

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/s/ Michael Linden
Michael R. Linden, Deputy
Attorneys for Defendants

Dated: January 27, 2015
LAW OFFICE OF JACOB WEISBERG

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By:

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/s/ Jacob Weisberg
Jacob Weisberg
Attorney for Plaintiff

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IT IS SO ORDERED.

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Dated:

January 27, 2015
UNITED STATES MAGISTRATE JUDGE

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Stipulation for Rule 35 Physical Examination

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Case No. 1:13-cv-00597-LJO-SAB