Elliott v. Autoquip Corp.

Filing 25

STIPULATION and ORDER signed by Magistrate Judge Carolyn K. Delaney on 3/7/2025 ORDERING that COLEMAN ELLIOTT will undergo a physical examination. (Deputy Clerk LMS)

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Gordon Rees Scully Mansukhani, LLP
315 Pacific Avenue
San Francisco, CA 94111

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J. Dominic Campodonico (SBN 188035)
[e-mail]
Kristin A. Blocher (SBN 283730)
[e-mail]
GORDON REES SCULLY MANSUKHANI, LLP
315 Pacific Avenue
San Francisco, CA 94111
Tel: [phone]
Fax: [phone]
Katherine Althoff (PHV Admitted)
[e-mail]
Allyson E. Emley (PHV Admitted)
[e-mail]
McCARTER & ENGLISH, LLP
10 E. Main Street, Suite 200
Carmel, IN 46032
Tel: [phone]
Attorneys for Defendant
AUTOQUIP CORPORATION

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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COLEMAN ELLIOTT,

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Plaintiff,
vs.
AUTOQUIP CORPORATION and DOES
1-25,
Defendants.

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CASE NO. 2:23-cv-02355-JAM-CKD
STIPULATION AND ORDER TO
CONDUCT THE PHYSICAL
INDEPENDENT MEDICAL
EXAMINATION OF PLAINTIFF
COLEMAN ELLIOTT
Complaint filed September 5, 2023
Removed from Superior Court of San
Joaquin County, STK-CV-UPL-20230009514

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PLEASE TAKE NOTICE that COLEMAN ELLIOTT and AUTOQUIP

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CORPORATION, by and through their undersigned respective counsel of record, HEREBY

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STIPULATE AND AGREE AS FOLLOWS:

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WHEREAS, COLEMAN ELLIOTT alleged in the COMPLAINT that he suffered

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physical injury resulting from the acts alleged in the COMPLAINT, that such injury is serious

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and permanent; and,

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WHEREAS, COLEMAN ELLIOTT stated in Plaintiff’s Responses to Defendant

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Autoquip Corporation’s First Set of Interrogatories that COLEMAN ELLIOTT sustained

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injuries to the head, shoulders, cervical spine, thoracic spine, and lumbar spine with pain

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radiating to his extremities; and,

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WHEREAS, COLEMAN ELLIOTT and AUTOQUIP CORPORATION agree that

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COLEMAN ELLIOTT’S physical condition is at issue in this action and good cause exists to

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conduct a physical examination under the conditions specified in this Stipulation; and,

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WHEREAS, COLEMAN ELLIOTT and AUTOQUIP CORPORATION filed a Joint

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Statement Regarding Discovery Dispute regarding the scope and duration of a proposed

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physical examination pursuant to Fed. R. Civ. P. 35(a); and,

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Gordon Rees Scully Mansukhani, LLP
315 Pacific Avenue
San Francisco, CA 94111

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WHEREAS, the COURT issued an ORDER regarding the discovery dispute on
February 24, 2025; and,

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WHEREAS, COLEMAN ELLIOTT and AUTOQUIP CORPORATION agree that the

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statements herein are made solely for purposes of this Stipulation, and that nothing in this

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Stipulation shall be deemed an admission or other evidentiary statement admissible against

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any party regarding AUTOQUIP CORPORATION’s potential liability to COLEMAN

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ELLIOTT.
IT IS HEREBY STIPULATED and AGREED that COLEMAN ELLIOTT will

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undergo a physical examination ("Examination") under the following conditions:
1.

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Examiner Name: The Examination shall be conducted by Dr. Richard A. Rubenstein.
A copy of Dr. Rubenstein’s curriculum vitae is attached hereto as Exhibit A.

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Date, Time, and Duration of the Examination: The Examination shall commence on

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April 23, 2025 at 1:00 p.m. PT and shall be limited to FOUR (4) hours over one day,

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pursuant to the Court’s Order dated February 24, 2025. Mr. Elliott shall be allowed

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breaks, if requested, but such breaks shall not be counted toward the time allotted. The

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exam shall commence promptly at 1:00 p.m. Any delay in the commencement of the

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exam shall count toward the time of the exam.

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3.

Location of the Examination: The Examination shall be conducted at Plaza One, 3220

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Blume Drive, Suite 151, Richmond, CA 94806. Plaintiff shall make arrangements to

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attend and bear the cost of travel, if any.

Gordon Rees Scully Mansukhani, LLP
315 Pacific Avenue
San Francisco, CA 94111

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4.

Manner, Conditions, and Scope of the Examination: The Examination shall include

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and be limited to an evaluation of the claims of physical injury identified by

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COLEMAN ELLIOTT as in controversy in the above-referenced cause. Dr. Rubenstein

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is permitted to ask any question relevant to diagnosis. This may include questions

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related to occupational history and prior injuries and diseases, if relevant to diagnosis.

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Dr. Rubenstein will use reasonable efforts to not duplicate questioning that is covered

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by available medical records and COLEMAN ELLIOTT’s deposition testimony.

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COLEMAN ELLIOTT is asked to bring with him any and all medications that he is

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currently taking. Dr. Rubenstein intends to administer a standard (physical) neurologic

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examination. An example of a test battery given in another similar examination has been

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disclosed to COLEMAN ELLIOTT’s counsel. While Dr. Rubenstein would expect this

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examination to be similar to that disclosed to counsel, final determination of necessary-

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to-diagnosis testing will be determined at the time of testing. In any event, the

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examination will not include procedures that are painful, protracted, or intrusive, and

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will not include examination of the following specific body parts: genital, anal, or rectal

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pursuant to the Court’s Order dated February 24, 2025. No imaging or other invasive

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diagnostic procedures will be performed (e.g. an EMG). COLEMAN ELLIOTT will be

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required to change into a hospital-type gown for the examination.

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5.

Medical Records: Dr. Rubenstein shall be provided with medical records by the

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Defendant. Plaintiff will be provided a copy of any records provided to Dr. Rubenstein

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at the same time as Dr. Rubenstein’s report is provided.

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6.

Information Obtained Beyond the Scope of the Examination: Information obtained

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by Dr. Rubenstein, at Examination, that is not otherwise discoverable and beyond the

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agreed upon scope of the permitted examination shall not be relied upon by any expert

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to form his or her opinion. Any information obtained by Dr. Rubenstein, at

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Examination, that is that is not otherwise discoverable and beyond the scope of the

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permitted Examination shall be inadmissible at trial.

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Recording the Examination: The Examination shall not be transcribed or audio

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recorded by COLEMAN ELLIOTT or any other individual. Dr. Rubenstein may dictate

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notes during the examination. Defendant shall provide a copy of any dictation and/or

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notes made by the evaluating doctor.

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8.

Persons Allowed in the Examination: COLEMAN ELLIOTT and Dr. Rubenstein shall

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be present during the Examination. Dr. Rubenstein may be assisted during the

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Examination by a member(s) of Dr. Rubenstein's staff. No other individuals, including

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counsel for either party to this lawsuit, are permitted to be present for the Examination.

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Gordon Rees Scully Mansukhani, LLP
315 Pacific Avenue
San Francisco, CA 94111

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Exchange of Examination Reports: The parties agree that a thorough report of the

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Examination detailing the tests conducted will be provided contemporaneously to

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counsel for both Plaintiff and Defendant following the Examination. The parties further

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agree that the report will include all of the examiner’s findings, including the results of

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all tests made, diagnoses, and conclusions. Plaintiff and Defendant will also be provided

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with any and all draft reports prepared by Dr. Rubenstein.

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Respectfully submitted:

Respectfully submitted:

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VIADRO LAW, LLP

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By:

GORDON REES SCULLY
MANSUKHANI, LLP

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Christopher A. Viadro
Ethan P. Niedermeyer
Attorneys for Plaintiff
Coleman Elliott

By:

J. Dominic Campodonico
Attorneys for Defendant
Autoquip Corporation

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IT IS SO ORDERED.

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Dated: March 7, 2025

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_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE