Dang v. Sutter's Place, Inc. et al

Filing 64

STIPULATION AND ORDER FOR INDEPENDENT MENTAL EXAMINATION OF PLAINTIFF re 63 Stipulation filed by Sutter's Place, Inc. Signed by Judge Paul S. Grewal on December 12, 2011. (psglc1, COURT STAFF) (Filed on 12/12/2011)

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1 2 3 4 5 6 7 JAMES McMANIS (40958) SHARON KIRSCH (157157) MATTHEW SCHECHTER (212003) McMANIS FAULKNER A Professional Corporation 50 West San Fernando Street, 10th Floor San Jose, California 95113 Telephone: 408-279-8700 Facsimile: 408-279-3244 Email: skirsch@mcmanislaw.com mschechter@mcmanislaw.com Attorneys for Defendant, SUTTER’S PLACE, INC. dba BAY 101 8 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION 9 10 11 CUC DANG, Plaintiff, 12 13 Case No. 10-CV-02181 (RMW) (PSG) vs. STIPULATION AND [PROPOSED] ORDER FOR INDEPENDENT MENTAL EXAMINATION OF PLAINTIFF 14 15 16 SUTTER’S PLACE, INC. dba BAY 101 or BAY 101 CASINO, et. al., Defendants. [Fed. R. Civ. P. 35] Complaint Filed: May 20, 2010 17 18 19 20 Plaintiff, Cuc Dang (“Dang”), and defendant, Sutter’s Place, Inc. dba Bay 101 (“Bay 21 101”) (collectively “the parties”), by and through their respective attorneys of record, hereby 22 stipulate to the following with respect to the time, place, manner, conditions, examiner and scope 23 of examination for an independent mental examination of Dang: 24 1. Dang has placed her mental condition in controversy. In her First Amended 25 Complaint (“FAC”), Dang alleges that as a result “of the harassment and unfair treatment she 26 suffered [at Bay 101], plaintiff became severely distressed and depressed[,] … was forced to 27 seek medical treatment for the severe stress and depression, and was placed on medical disability 28 for several weeks.” (FAC, ¶ 26). Dang further alleges that “[a]s a direct, foreseeable, and 1 STIPULATION AND [PROPOSED] ORDER FOR INDEPENDENT MENTAL EXAM OF PLAINTIFF; CASE NO. 10-CV-02181 (RMW) (PSG) 1 proximate result of Bay 101’s discriminatory acts, [she] has suffered, and continues to suffer, … 2 humiliation, embarrassment, severe mental and emotional distress, and discomfort[.]” (FAC, ¶¶ 3 56, 63, 71, 77, 83, and 90). 4 5 2. To date, Dang continues to receive treatment for the stress and depression she is claiming in this litigation. 6 3. Good cause exists for an independent mental exam (“IME”). Dang’s FAC and 7 deposition testimony both allege that Dang has suffered, and continues to suffer, from emotional 8 distress as a result of the conduct at Bay 101 as alleged in her FAC. 9 4. The IME will be conducted by Dr. Mark Lipian, M.D., Ph.D., on Tuesday, 10 January 24, 2012, at his office in San Francisco located at 50 California Street, Suite 1500, San 11 Francisco, California 94111, (415) 477-9330. The IME will begin at 9:00 a.m. and will end no 12 later than 5:00 p.m., including meal and rest breaks. However, if Dang is not present at the IME 13 by 9:00 a.m., then the IME will end eight (8) hours from its starting time, including meal and rest 14 breaks. Dr. Lipian will audio record the IME. Also present at the IME will be a certified 15 Vietnamese interpreter for Dang. No one else shall be allowed in the examination. 16 5. Bay 101 will attempt to retain the services of Christine Lebrun to serve as the 17 Vietnamese interpreter, if her schedule permits. If Bay 101 must retain a different interpreter, 18 Bay 101 shall notify Dang’s counsel of the new interpreter's identity as soon as it is known. 19 6. Dr. Lipian practices psychiatry and forensic psychiatry in Los Angeles, San 20 Francisco and Newport Beach, California. He serves as the Chief of Psychiatry, Forensic 21 Outpatient Services, for the Orange County Health Care Agency, and is the Medical Director of 22 the Conditional Release Program of Orange County. He has served as an Assistant Clinical 23 Professor in the Department of Psychiatry and Biobehavioral Sciences at UCLA since 1991 24 where he teaches clinical and forensic psychiatry to residents and postgraduate fellows in 25 Forensic Psychiatry. Dr. Lipian is licensed to practice medicine in the State of California, and is 26 Board Certified in both Psychiatry and Forensic Psychiatry by the American Board of Psychiatry 27 and Neurology. 28 /// 2 STIPULATION AND [PROPOSED] ORDER FOR INDEPENDENT MENTAL EXAM OF PLAINTIFF; CASE NO. 10-CV-02181 (RMW) (PSG) 1 7. The scope of Dr. Lipian's examination shall be limited as set forth in Paragraphs 2 7, 8 and 9 below. Dr. Lipian will conduct a forensic psychiatric evaluation of Dang so as to 3 evaluate the nature and extent of Dang’s mental and emotional distress if any, and the cause(s) 4 thereof, together with whether Dang’s past experiences or psychological conditions provide an 5 explanation for Dang’s perception of disputed fact allegations or an explanation for the mental 6 and emotional distress she claims to have suffered. Dr. Lipian will conduct a standard forensic 7 psychiatric examination which consists of a one-day interview with Dang where he will ask 8 Dang general open-ended questions about her medical and mental history and the possible 9 sources of any alleged emotional trauma. 10 8. Dr. Lipian’s exam will include a review of Dang’s medical and mental health 11 history. Dr. Lipian must determine, for example, whether Dang suffered from prior traumas (in 12 the form of injuries, diseases, or life events) that may bear on her current mental state. He must 13 determine whether Dang is taking, or has taken, any medications that might have produced 14 relevant side effects. He must determine how Dang has coped with any significant stressors in 15 the past and whether and to what extent her current condition differs from past stressors; and he 16 must determine whether Dang suffers from a psychotic and/or personality disorder, its extent and 17 prognosis, that may bear upon Dang’s mental state and capacity at the time of events at issue and 18 its possible impact upon those events, as well as upon her present mental state and capacity. Dr. 19 Lipian must also determine the interrelationship, if any, between psychiatric condition and 20 physical complaints; and which, if either, preceded, caused, underlay, or resulted from the other 21 in this case. From a psychiatric standpoint, all of these areas of inquiry relate to Dang’s mental 22 condition. 23 9. Dr. Lipian does not intend to administer any “paper and pencil” tests to Dang, but 24 reserves the right to do so if indicated by initial results of the examination. He will not 25 administer any physically painful tests to Dang or perform any invasive procedures. He plans to 26 conduct an interview consisting of open-ended questions about the subjects listed above. If 27 Dang inadvertently reveals any protected attorney-client communications during the course of 28 the examination, such disclosures will not be deemed as a waiver of the attorney-client privilege. 3 STIPULATION AND [PROPOSED] ORDER FOR INDEPENDENT MENTAL EXAM OF PLAINTIFF; CASE NO. 10-CV-02181 (RMW) (PSG) 1 10. Dang hereby designates the audio recording of the IME and Dr. Lipian’s Rule 2 35(b) report as “Confidential” pursuant to the Stipulated Protective Order. Bay 101 does not 3 waive its right to challenge the “Confidential” designation as permitted by Section 6 of the 4 Stipulated Protective Order. 5 11. A copy of the audio recording shall be provided to Dang’s counsel within fifteen 6 (15) days of the examination. A copy of Dr. Lipian’s Rule 35(b) report shall be provided to 7 Dang’s counsel within five (5) days of its receipt by Bay 101’s counsel. 8 9 12. Dr. Lipian has been provided with the Protective Order for this litigation and has signed the Acknowledgment and Agreement To Be Bound by said Protective Order. 10 11 IT IS SO STIPULATED. 12 13 [In accordance with General Order 45.X.B., Matthew Schechter, counsel for defendant, attests 14 that plaintiff’s counsel, Ann Nguyen, has concurred in this filing.] 15 16 17 Dated: December 9, 2011 McMANIS FAULKNER 18 /s/ Matthew Schechter MATTHEW SCHECHTER 19 20 Attorneys for Defendant SUTTER’S PLACE, INC. dba BAY 101 21 22 23 Dated: December 9, 2011 ROBINSON & WOOD, INC. 24 /s/ Ann A. Nguyen ANN A. NGUYEN 25 26 Attorneys for Plaintiff, CUC DANG 27 28 4 STIPULATION AND [PROPOSED] ORDER FOR INDEPENDENT MENTAL EXAM OF PLAINTIFF; CASE NO. 10-CV-02181 (RMW) (PSG) 1 ORDER 2 Good cause appearing therefor, an independent mental exam of Cuc Dang may be 3 conducted by Dr. Mark Lipian, with the assistance of a certified Vietnamese interpreter, on 4 Tuesday, January 24, 2012, from 9:00 a.m. to 5:00 p.m. at 50 California Street, Suite 1500, San 5 Francisco, California 94111, according to the manner, conditions and scope of examination as set 6 forth in the above stipulation. 7 8 9 10 12/12/2011 Dated: ________________________ _________________________________ UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5 STIPULATION AND [PROPOSED] ORDER FOR INDEPENDENT MENTAL EXAM OF PLAINTIFF; CASE NO. 10-CV-02181 (RMW) (PSG)

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