Nelson et al v. Lowe's Home Centers, LLC

Filing 20

ORDER signed by Magistrate Judge Kendall J. Newman on 3/21/2016 ORDERING Plaintiff Tonia Nelson to appear for a psychiatric Independent Mental Examination with Lowe's retained psychiatric expert witness Ronald Albucher, M.D. prior to 4/22/2016; ORDERING Dr. Albucher to prepare and serve his report re the Independent Mental Examination of Plaintiff Tonia Nelson on the plaintiff's counsel pursuant to F.R.Cv.P. Rule 35; WITHDRAWING 16 Motion to Compel and VACATING the hearing on said motion. (Michel, G.)

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CHARLES D. MAY, ESQ.; STATE BAR NO.: 129663
GENE B. SHARAGA, ESQ.; STATE BAR NO.: 131661
DIANA M. RIVERA, ESQ.; STATE BAR NO.: 222025
THARPE & HOWELL, LLP
15250 Ventura Blvd,, Ninth Floor
Sherman Oaks, California 91403
[phone]; [phone] fax
E-Mail: [e-mail]
E-Mail: [e-mail]
E-Mail: [e-mail]

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Attorneys for Defendants,
LOWE’S HOME CENTERS, LLC

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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA – SACRAMENTO DIVISION

THARPE & HOWELL, LLP
15250 Ventura Boulevard, Ninth Floor
Sherman Oaks, California 91403-3221

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TONIA NELSON, KRISTOPHER
PALLESEN, BRYAN GARCIA and
NICKOLAS NELSON,

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Plaintiffs,

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vs.

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No. 2:15-cv-00092-KJM-KJN (TEMP)
STIPULATION TO TAKING PSYCHIATRIC
INDEPENDENT MENTAL EXAMINATION
OF PLAINTIFF TONIA NELSON AND
ORDER

LOWE’S HOME CENTERS, INC., and
DOES 1 through 50, inclusive,

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Defendants.
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WHEREAS, Plaintiff TONIA NELSON, (“Plaintiff”) has alleged a claim that as a result of

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the subject incident she suffers from: traumatic brain injury, depression, difficulty sleeping,

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anxiety, frustration, confusion, memory loss, and emotional distress, among other things.

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WHEREAS, Defendant LOWE’S HOME CENTERS, LLC (“Defendant”) has the right to

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conduct a psychiatric examination of Plaintiff pursuant to Federal Rules of Civil Procedure Rule

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35;
WHEREAS, Defendant has retained a licensed psychiatrist, for the purposes of performing

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a psychiatric examination;
IT IS HEREBY STIPULATED AND AGREED by and between the parties to the above-

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captioned matter through their respective counsel for record as follows:

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/////

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1.

A Psychiatric Independent Mental Examination of Plaintiff TONIA NELSON will

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be conducted pursuant to Federal Rules of Civil Procedure Rule 35 at a date, time, and location
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mutually convenient for both parties before the expert witness discovery deadline of April 22,
2016. The examination will be taken by Board certified psychiatrist Ronald C. Albucher, M.D. A

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true and correct copy of Dr. Albucher’s Curriculum Vitae is attached hereto and incorporated

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herein by reference as Exhibit A.

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2.

At the above-referenced examination, Plaintiff will be asked questions concerning

relevant background information, medical history including psychological and psychiatric

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THARPE & HOWELL, LLP
15250 Ventura Boulevard, Ninth Floor
Sherman Oaks, California 91403-3221

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treatment history, educational history, and alcohol and drug use history. The examination shall

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include the following areas, which Plaintiff has put at issue in this lawsuit: traumatic brain injury,

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depression, difficulty sleeping, anxiety, frustration, confusion, memory loss, and emotional
distress, among other things.

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3.

The total length of the examination may take up to 3 hours, not including any

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reasonable and appropriate breaks Plaintiff may take as needed. The examination is not to exceed
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3 hours.
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The parties stipulate that Plaintiff shall be subjected to only one psychiatric

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examination by Defendant(s) in connection with this action, whether in Federal or State Court,

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regardless of whether Defendant(s) retain any additional experts.

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5.

Given the nature of the examination, Plaintiff may not have her counsel or

representative observe the examination or videotape it.
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Within thirty (30) days of the examination, Defendant’s counsel will produce Dr.

Albucher’s report from the examination to Plaintiff’s counsel.
7.

At the time of compliance to Plaintiff’s demand for a copy of Dr. Albucher’s report,

Plaintiff shall in exchange produce to Defendant’s counsel a copy of any existing report of any

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examination of the same condition by any other physician, psychologist, or licensed health care
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practitioner. In addition, Plaintiff shall provide any later report of any previous or subsequent
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examination of the same condition, by any physician, psychologist, or licensed health care
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practitioner, as provided by Federal Rules of Civil Procedure Rule 35.
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This Stipulation will replace Defendant’s Motion to Compel Psychiatric

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Independent Mental Examination and will be filed in place of the Joint Statement Re: Defendant’s

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Motion to Compel Psychiatric Independent Mental Examination.

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THARPE & HOWELL, LLP
15250 Ventura Boulevard, Ninth Floor
Sherman Oaks, California 91403-3221

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Attached hereto and incorporated herein by reference as Exhibit B is a Proposed

Order for the completion of the agreed to Psychiatric Independent Mental Examination.
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This stipulation may be executed in counterparts. Facsimile or electronic signatures

shall have the same effect as originals.
IT IS SO STIPULATED.
THARPE & HOWELL, LLP

Dated: March 17, 2016

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/s/Diana M. Rivera
By:

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CHARLES D. MAY
GENE B. SHARAGA
DIANA M. RIVERA
Attorneys for Defendants
LOWE’S HOME CENTERS, LLC

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BOSTWICK & PETERSON, LLP

Dated: March 17, 2016

/s/Blake Bostwick
By:
ERIK PETERSON
BLAKE BOSTWICK
Attorney for Plaintiffs
TONIA NELSON, KRISTOPHER
PALLESEN, BRYAN GARCIA and
NICKOLAS NELSON

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ORDER

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Pursuant to the parties’ stipulation, IT IS HEREBY ORDERED THAT:

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1.

Plaintiff TONIA NELSON will appear for a psychiatric Independent Mental

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Examination with Lowe’s retained psychiatric expert witness Ronald Albucher, M.D. at a date,

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time, and location mutually convenient for both parties before the expert witness discovery

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deadline of April 22, 2016;

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2. Dr. Albucher will have 30 days from the date of the IME to prepare and serve his IME
report on Plaintiffs’ counsel per Fed. R. Civ. P. Rule 35; and
3. Defendant’s March 3, 2016 motion to compel (Dkt. No. 16) is hereby withdrawn

THARPE & HOWELL, LLP
15250 Ventura Boulevard, Ninth Floor
Sherman Oaks, California 91403-3221

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pursuant to the parties’ stipulation and the March 24, 2016 hearing is vacated.

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Dated: March 21, 2016

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/nelson0092.stip.ime.ord

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