Yevgeniy Davidovich v. County of San Mateo et al

Filing 81

Order by Magistrate Judge Nathanael M. Cousins granting in part and denying in part 69 Motion to Compel Rule 35 Examinations. (nclc1S, COURT STAFF) (Filed on 5/15/2013)

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1 2 3 4 5 UNITED STATES DISTRICT COURT 6 NORTHERN DISTRICT OF CALIFORNIA 7 SAN FRANCISCO DIVISION 8 9 YEVGENIY DAVIDOVICH, 10 Plaintiff, 11 v. 12 COUNTY OF SAN MATEO, and others, 13 Case No. 12-cv-02148 JST (NC) ORDER GRANTING IN PART AND DENYING IN PART MOTION TO COMPEL RULE 35 EXAMS Re: Dkt. No. 69 Defendants. 14 15 Defendants move to compel plaintiff to submit to a mental examination and a 16 physical examination under Federal Rule of Civil Procedure 35. This dispute, and the 17 alleged necessity for the exams, arises out of plaintiff’s allegations that defendants used 18 excessive force to restrain him while in police custody, causing lasting injuries to his legs. 19 Judge Tigar referred defendants’ motion to this court. Dkt. No. 72. The Court held a 20 hearing on the motion on May 15, 2013. Based on the parties’ submissions and the 21 arguments of counsel at the hearing, the Court orders as follows: 22 1. The Court finds that plaintiff has not placed his mental condition in 23 controversy, and that good cause does not exist for permitting a mental examination of 24 plaintiff. See Schlagenhauf v. Holder, 379 U.S. 104, 117-21 (1964). Therefore, the Court 25 DENIES defendants’ motion to compel a mental examination. 26 2. The Court finds that plaintiff has placed his physical condition in controversy, 27 and that good cause exists for permitting a physical examination of plaintiff, limited in time 28 and scope as specified below. Id. Case No. 12-cv-02148 JST (NC) ORDER GRANTING IN PART AND DENYING IN PART MOTION 1 3. Plaintiff must submit to a physical examination by one of either Dr. Michael 2 Dillingham or Dr. Robert Gamburd. The examination must take place on a mutually agreed 3 day within 30 days of the date of this order at the office of Drs. Dillingham and Gamburd in 4 Redwood City and must not exceed four hours (not including any appropriate breaks). 5 4. The examination must consist of those procedures and tests generally accepted 6 by the medical community as reasonably necessary to evaluate the nature, extent, and 7 cause(s) of plaintiff’s injuries. Defense counsel must contact the examining physician and 8 provide notice to plaintiff’s counsel of whether the doctor will require any intrusive 9 procedures, such as a blood draw. If so, the parties must meet and confer to resolve their 10 disagreement over the necessity of such procedures. 11 5. Defense counsel must arrange for the examination to be audiotaped and for a 12 copy of the audiotape to be provided to plaintiff’s counsel within 14 days of the 13 examination. The examination must not be videotaped. 14 6. No counsel may be present during the examination. 15 7. Defense counsel must provide plaintiff’s counsel with a copy of the 16 examination results within 14 days of the examination. 17 8. The examination, results, and audiotape of the examination may only be used 18 in connection with this lawsuit. The audiotape and results of plaintiff’s examination may 19 not be distributed to anyone except Drs. Dillingham and Gamburd and their staff, counsel in 20 this case, the Court, plaintiff, and any expert witness retained by the parties, without leave 21 of Court. 22 9. This order does not address the admissibility of information disclosed during 23 the examination. 24 Any party may object to this order within fourteen days. See Civ. L.R. 72-2. 25 IT IS SO ORDERED. 26 Date: May 15, 2013 _________________________ Nathanael M. Cousins United States Magistrate Judge 27 28 Case No. 12-cv-02148 JST (NC) ORDER GRANTING IN PART AND DENYING IN PART MOTION 2

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