Finkelstein v. USAA Casualty Insurance Company

Filing 21

ORDER granting ECF No. 20 Stipulation. Plaintiff Keith Finkelstein shall submit to a physical examination before Jeffrey C. Wang, M.D., at 1450 San Pablo Street, Suite 5400, Los Angeles, CA 90033, on November 24, 2020, at 4:00 p.m. Signed by Magistrate Judge Carla Baldwin on 11/19/2020. (Copies have been distributed pursuant to the NEF - LW)

Case 3:20-cv-00411-MMD-CLB Document 21 Filed 11/19/20 Page 1 of 11

1 ROBERT W. FREEMAN
Nevada Bar No. 3062
2 PRISCILLA L. O’BRIANT
Nevada Bar No. 10171
3 JENNIFER A. TAYLOR, ESQ.
Nevada Bar No. 6141
4 LEWIS BRISBOIS BISGAARD & SMITH LLP
6385 S. Rainbow Boulevard, Suite 600
5 Las Vegas, Nevada 89118
Telephone: [phone]
6 Fax: [phone]
E-Mail: [e-mail]
7 E-Mail: [e-mail]
E-Mail: [e-mail]
8 Attorneys for USAA CASUALTY
INSURANCE COMPANY
9
10

UNITED STATES DISTRICT COURT

11

DISTRICT OF NEVADA, NORTHERN DIVISION

12 KEITH FINKELSTEIN,
13
14

3:20-cv-411-MMD-CLB

Plaintiff,
vs.

15 USAA CASUALTY INSURANCE
COMPANY; JOHN DOES I-XX, inclusive;
16 ABC CORPORATIONS 1-X, inclusive; and
BLACK AND WHITE COMPANIES 1-X,
17 inclusive,
18

Defendants.

19
20

CASE NO.:

STIPULATION FOR PHYSICAL
EXAMINATION OF PLAINTIFF
PURSUANT TO RULE 35 OF THE
FEDERAL RULES OF CIVIL
PROCEDURE AND [PROPOSED] ORDER
THEREON
Date:
Time:
Place:

November 24, 2020
4:00 p.m.
USC Spine Center
1450 San Pablo Street, Suite 5400,
Los Angeles, CA 90033

TO THIS HONORABLE COURT, ALL PARTIES, AND THEIR ATTORNEYS OF

21 RECORD:
22

Plaintiff KEITH FINKELSTEIN (“Plaintiff”) and Defendant USAA CASUALTY

23 INSURANCE COMPANY, (“Defendant”) by and through their respective counsel of record,
24 hereby agree and stipulate as follows:
25

1.

Pursuant to Rule 35 of the Federal Rule of Civil Procedure, the Court may order a

26 party whose physical condition is in controversy to submit to a physical examination by a suitably
27 licensed or certified examiner.

LEWIS

28

BRISBOIS

BISGAARD
& SMITH LLP
ATTORNEYS AT LAW

4832-2898-4530.5

Case 3:20-cv-00411-MMD-CLB Document 20 Filed 11/19/20 Page 2 of 11
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1

2.

On April 27, 2020, Plaintiff filed his First Amended Complaint in the Second

2 Judicial District Court, Washoe County, State of Nevada against Defendant, USAA CASUALTY
3 INSURANCE COMPANY (“Defendant”). On July 7, 2020 Defendant removed this action to the
4 Federal Court, District of Nevada, Northern Division. Plaintiff’s Complaint alleges causes of
5 action for breach of contract for underinsured motorist coverage and medical payments benefits
6 from his insurer, USAA CASUALTY INSURANCE COMPANY, following an automobile
7 accident on January 24, 2019. Plaintiff alleges he suffered injuries to his neck, low back, both
8 shoulders, biceps pain, both knees, and right ankle. as a result of the January 24, 2019 automobile
9 accident. Plaintiff contends his injuries include future medical treatment of bilateral shoulder
10 surgery, pain management and a lumbar fusion surgery at L4-L5 as a result of the accident.
11 Defendant disputes the nature and extent of Plaintiff’s alleged injury.
12

3.

In this case, as there is a present controversy regarding the physical condition of

13 Plaintiff, good cause exists for a physical examination (“Examination”) of Plaintiff to evaluate and
14 assess Plaintiff’s alleged injuries resulting from the 2019 automobile accident.
15

4.

The Examination of Plaintiff will be conducted by Jeffrey C. Wang, M.D., a

16 licensed board certified orthopedic spine surgeon, on November 24, 2020, commencing at 4:00
17 p.m. until completed, but only for that day.
18

5.

The Examination of Plaintiff will take place at 1450 San Pablo Street, Suite 5400,

19 Los Angeles, CA 90033.
20

6.

The cost of the Examination will be borne by Defendant. If Plaintiff is unable to

21 attend the Examination without a 48-hour notice, or otherwise refuses to attend the
22 Examination without sufficient notice, Plaintiff will be responsible for the payment of the
23 cancellation fee.
24

7.

The purpose and scope of the Examination is to obtain an evaluation and

25 assessment of Plaintiff’s current and future medical condition and/or future prognosis, which are
26 the subject of this litigation, from Jeffrey C. Wang, M.D.’s standpoint based upon his background,
27 experience and training. The Examination may include procedures and tests routinely used by a

LEWIS

28 specialist in orthopedics and neurology when examining patients to complete a diagnosis,

BRISBOIS

BISGAARD
& SMITH LLP
ATTORNEYS AT LAW

4832-2898-4530.5

2

Case 3:20-cv-00411-MMD-CLB Document 20 Filed 11/19/20 Page 3 of 11
21

1 assessment of past and future treatment, prognosis, and the need for any costs of future
2 treatment(s) relating to Plaintiff’s alleged injuries in the above-captioned action.
3

8.

Plaintiff will not provide a written medical history relating to his alleged injuries

4 and no x-rays or other imaging studies will be taken for purposes of this Examination.
5

9.

The Examination will not be invasive, painful, or protracted.

6

10.

All reports generated by Jeffrey C. Wang, M.D. in connection with this

7 Examination will be provided to Plaintiff, through his attorney within 30 days upon Defendant’s
8 receipt of same.
9

IT IS SO STIPULATED.

10 DATED: November 19, 2020

TERRY FRIEDMAN AND JULIE THROOP, PLLC

11
12
By:

13
14
15
16
17

/s/ Julie McGrath Throop
TERRY FRIEDMAN, ESQ, ESQ.
Nevada Bar No. 1975
JULIE McGRATH THROOP, ESQ.
Nevada Bar No. 11298
300 South Arlington Avenue
Reno, NV 89501
Attorneys for Plaintiff
Keith Finkelstein

18
19 DATED: November 19, 2020

LEWIS BRISBOIS BISGAARD & SMITH LLP

20
21

By:

22
23
24
25
26
27

LEWIS

/s/ Jennifer A. Taylor
ROBERT W. FREEMAN, ESQ.
Nevada Bar No. 3062
PRISCILLA L. O’BRIANT, ESQ.
Nevada Bar No. 10171
JENNIFER A. TAYLOR, ESQ.
Nevada Bar No. 6141
6385 S. Rainbow Boulevard, Suite 600
Las Vegas, Nevada 89118
Attorneys for Defendant
USAA Casualty Insurance Company

28

BRISBOIS

BISGAARD
& SMITH LLP
ATTORNEYS AT LAW

4832-2898-4530.5

3

Case 3:20-cv-00411-MMD-CLB Document 20 Filed 11/19/20 Page 4 of 11
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1
2

[PROPOSED] ORDER

3

IT IS SO ORDERED:

4

GOOD CAUSE appearing, the Court orders as follows:

5

Plaintiff Keith Finkelstein shall submit to a physical examination before Jeffrey C. Wang,

6 M.D., at 1450 San Pablo Street, Suite 5400, Los Angeles, CA 90033, on November 24, 2020, at
7 4:00 p.m.
8 DATED this ____ day of November, 2020
19th
9
10
11

UNITED STATES MAGISTRATE JUDGE

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27

LEWIS

28

BRISBOIS

BISGAARD
& SMITH LLP
ATTORNEYS AT LAW

4832-2898-4530.5

4

Case 3:20-cv-00411-MMD-CLB Document 20 Filed 11/19/20 Page 5 of 11
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1
2

CERTIFICATE OF MAILING
I HEREBY CERTIFY that on the 19th day of November, 2020, I served a true and correct

3 copy of the foregoing STIPULATION FOR PHYSICAL EXAMINATION OF PLAINTIFF
4 PURSUANT TO RULE 35 OF THE FEDERAL RULES OF CIVIL PROCEDURE AND
5 [PROPOSED] ORDER THEREON by depositing a copy of same in the United States Mail at
6 Las Vegas, Nevada postage fully prepaid, addressed to:
7 TERRY FRIEDMAN, ESQ.
Nevada Bar No. 1975
8 JULIE McGRATH THROOP, ESQ.
Nevada Bar No. 11298
9
300 South Arlington Avenue
10 Reno, NV 89501
[phone] T
11 [phone] F
Attorney for Plaintiff
12 Keith Finkelstein
13
14
By
15
16

/s/Anne Cordell
An Employee of
LEWIS BRISBOIS BISGAARD & SMITH LLP

17
18
19
20
21
22
23
24
25
26
27

LEWIS

28

BRISBOIS

BISGAARD
& SMITH LLP
ATTORNEYS AT LAW

4832-2898-4530.5

5

Case 3:20-cv-00411-MMD-CLB Document 20 Filed 11/19/20 Page 6 of 11
21
Archived: Thursday, November 19, 2020 10:43:46 AM
From: [e-mail]
Sent: Tuesday, November 17, 2020 12:02:10 PM
To: Taylor, Jennifer
Cc: Cordell, Anne; [e-mail]; [e-mail]; O'Briant, Priscilla
Subject: RE: FW: [EXT] RE: Finkelstein, Keith v. USAA - 3:20-cv-00411 - Requesting Rule 35 Examination
Sensitivity: Normal

okay thanks
Sincerely,
Julie McGrath Throop, Esq.
Personal Injury Attorney
Licensed in Nevada: SBN 11298
NEVADA LAW.NEVADA LAWYERS
Terry Friedman and Julie Throop, PLLC
300 S. Arlington Ave.
Reno, NV 89501
[phone] (work)
[phone] (fax)
[phone] (cell)
***** PLEASE NOTE ***** This E-Mail/telefax message and any documents accompanying this transmission may
contain privileged and/or confidential information and is intended solely for the addressee(s) named above. If you are
not the intended addressee/recipient, you are hereby notified that any use of,disclosure, copying, distribution, or
reliance on the contents of this E-Mail/telefax information is strictly prohibited and may result in legal action against
you. Please reply to the sender advising of the error in transmission and immediately delete/destroy the message and
any accompanying documents. Thank
you.*****

-------- Original Message -------Subject: RE: FW: [EXT] RE: Finkelstein, Keith v. USAA - 3:20-cv-00411 Requesting Rule 35 Examination
From: "Taylor, Jennifer" <[e-mail]>
Date: Tue, November 17, 2020 12:27 pm
To: "[e-mail]" <[e-mail]>
Cc: "Cordell, Anne" <[e-mail]>,
"[e-mail]" <[e-mail]>,
"[e-mail]" <[e-mail]>,
"O'Briant, Priscilla" <[e-mail]>

Thanks Julie
It looks like we may need to replace the December 1, 2020 Rule 35 date with November 24, 2020. I am waiting
to hear back from Dr. Wang’s office on if Nov. 24th is still available. If so, I will replace the Dec. 1 date in the
draft stipulation with Nov. 24th. Jennifer
Jennifer Taylor
Attorney

Case 3:20-cv-00411-MMD-CLB Document 20 Filed 11/19/20 Page 7 of 11
21
[e-mail]
T: 702.830.9028 F: 702.366.9563

6385 South Rainbow Blvd., Suite 600, Las Vegas, NV 89118 | LewisBrisbois.com
Representing clients from coast to coast. View our locations nationwide.
Thi s e-ma i l ma y conta i n or a tta ch pri vi l eged, confi denti a l or protected i nforma ti on i ntended onl y for the us e of the i ntended reci pi ent. If
you a re not the i ntended reci pi ent, a ny revi ew or us e of i t i s s tri ctl y prohi bi ted. If you ha ve recei ved thi s e-ma i l i n error, you a re requi red
to noti fy the s ender, then del ete thi s ema i l a nd a ny a tta chment from your computer a nd a ny of your el ectroni c devi ces where the
mes s a ge i s s tored.

From: [e-mail] <[e-mail]>
Sent: Tuesday, November 17, 2020 9:17 AM
To: Taylor, Jennifer <[e-mail]>
Cc: Cordell, Anne <[e-mail]>; [e-mail];
[e-mail]; O'Briant, Priscilla <[e-mail]>
Subject: RE: FW: [EXT] RE: Finkelstein, Keith v. USAA - 3:20-cv-00411 - Requesting Rule 35 Examination

Hi, Jennifer. You may use my e-signature. Thank you.
Sincerely,
Julie McGrath Throop, Esq.
Personal Injury Attorney
Licensed in Nevada: SBN 11298
NEVADA LAW.NEVADA LAWYERS
Terry Friedman and Julie Throop, PLLC
300 S. Arlington Ave.
Reno, NV 89501
[phone] (work)
[phone] (fax)
[phone] (cell)
***** PLEASE NOTE ***** This E-Mail/telefax message and any documents accompanying this transmission
may contain privileged and/or confidential information and is intended solely for the addressee(s) named
above. If you are not the intended addressee/recipient, you are hereby notified that any use of,disclosure,
copying, distribution, or reliance on the contents of this E-Mail/telefax information is strictly prohibited and
may result in legal action against you. Please reply to the sender advising of the error in transmission and
immediately delete/destroy the message and any accompanying documents. Thank
you.*****
-------- Original Message -------Subject: RE: FW: [EXT] RE: Finkelstein, Keith v. USAA - 3:20-cv-00411 Requesting Rule 35 Examination
From: "Taylor, Jennifer" <[e-mail]>
Date: Mon, November 16, 2020 2:07 pm
To: "[e-mail]" <[e-mail]>
Cc: "Cordell, Anne" <[e-mail]>,
"[e-mail]" <[e-mail]>,
"[e-mail]" <[e-mail]>,
"O'Briant, Priscilla" <[e-mail]>

Julie

Case 3:20-cv-00411-MMD-CLB Document 20 Filed 11/19/20 Page 8 of 11
21
Attached is a draft Stipulation and Order for Rule 35 Exam that we have to file in
Fed Court. Please note, I just inserted December 1, 2020 as the Rule 35 exam
date but of course if that date does not work for your client we can change it to
another date. However, if December 1, 2020 does work for your client and you
don’t have any edits to the Stip please authorize your e-signature so we can get
this filed with the Court. Thank you.
Jennifer
Jennifer Taylor
Attorney
[e-mail]
T: 702.830.9028 F: 702.366.9563
6385 South Rainbow Blvd., Suite 600, Las Vegas, NV 89118 | LewisBrisbois.com
Representing clients from coast to coast. View our locations nationwide.
Thi s e-ma i l ma y conta i n or a tta ch pri vi l eged, confi denti a l or protected i nforma ti on i ntended onl y for the us e of the i ntended reci pi ent. If
you a re not the i ntended reci pi ent, a ny revi ew or us e of i t i s s tri ctl y prohi bi ted. If you ha ve recei ved thi s e-ma i l i n error, you a re requi red
to noti fy the s ender, then del ete thi s ema i l a nd a ny a tta chment from your computer a nd a ny of your el ectroni c devi ces where the
mes s a ge i s s tored.

From: [e-mail] <[e-mail]>
Sent: Friday, November 13, 2020 2:37 PM
To: Taylor, Jennifer <[e-mail]>
Cc: Cordell, Anne <[e-mail]>;
[e-mail]; [e-mail]
Subject: RE: FW: [EXT] RE: Finkelstein, Keith v. USAA - 3:20-cv-00411 Requesting Rule 35 Examination

This will work. I included Mary who does my scheduling. We will get back to you. Thank you and
have a good weekend.
Sincerely,
Julie McGrath Throop, Esq.
Personal Injury Attorney
Licensed in Nevada: SBN 11298
NEVADA LAW.NEVADA LAWYERS
Terry Friedman and Julie Throop, PLLC
300 S. Arlington Ave.
Reno, NV 89501
[phone] (work)
[phone] (fax)
[phone] (cell)
***** PLEASE NOTE ***** This E-Mail/telefax message and any documents accompanying this
transmission may contain privileged and/or confidential information and is intended solely for the
addressee(s) named above. If you are not the intended addressee/recipient, you are hereby notified
that any use of,disclosure, copying, distribution, or reliance on the contents of this E-Mail/telefax
information is strictly prohibited and may result in legal action against you. Please reply to the sender
advising of the error in transmission and immediately delete/destroy the message and any
accompanying documents. Thank
you.*****

Case 3:20-cv-00411-MMD-CLB Document 20 Filed 11/19/20 Page 9 of 11
21
-------- Original Message -------Subject: FW: [EXT] RE: Finkelstein, Keith v. USAA - 3:20-cv-00411 Requesting Rule 35 Examination
From: "Taylor, Jennifer" <[e-mail]>
Date: Fri, November 13, 2020 2:27 pm
To: "[e-mail]" <[e-mail]>
Cc: "Cordell, Anne" <[e-mail]>

Hi Julie
I am working with Priscilla on this case and we would like to have a Rule
35 examination of your client, Mr. Finkelstein by our medical doctor, Jeff
Wang in Los Angeles, Ca. Last time I looked I thought your client lived in
So. California so we selected a physician in LA for your client’s
convenience. Dr. Wang does IME on Tuesdays. His office has provided
me the following dates/time for the examination.
The address for that is 1450 San Pablo Street, Suite 5400, Los Angeles,
CA 90033.
Dates:
11/24 at 4:00pm
12/1 at 4:00pm
12/15 at 4:00pm

Please advise if you will stipulate to the Rule 35 examination pertaining
to your client’s lumbar spine related issues so that I can prepare the
paperwork required by the Federal Court and so that we can meet the
January 1, 2020 expert disclosure deadline. If you have any questions or
concerns please let me know.
Kind regards,
Jennifer
Jennifer Taylor
Attorney
[e-mail]
T: 702.830.9028 F: 702.366.9563

6385 South Rainbow Blvd., Suite 600, Las Vegas, NV 89118 | LewisBrisbois.com
Representing clients from coast to coast. View our locations nationwide.
Thi s e-ma i l ma y conta i n or a tta ch pri vi l eged, confi denti a l or protected i nforma ti on i ntended onl y for the us e of the i ntended reci pi ent. If
you a re not the i ntended reci pi ent, a ny revi ew or us e of i t i s s tri ctl y prohi bi ted. If you ha ve recei ved thi s e-ma i l i n error, you a re requi red
to noti fy the s ender, then del ete thi s ema i l a nd a ny a tta chment from your computer a nd a ny of your el ectroni c devi ces where the
mes s a ge i s s tored.

From: [e-mail] <[e-mail]>
Sent: Thursday, November 12, 2020 1:54 PM
To: Cordell, Anne <[e-mail]>
Cc: [e-mail]; [e-mail];
[e-mail]; [e-mail]; Taylor, Jennifer
<[e-mail]>; O'Briant, Priscilla

Case 3:20-cv-00411-MMD-CLB Document 20 Filed 11/19/20 Page 10 of 11
21
<[e-mail]>; Freeman, Robert
<[e-mail]>; Freeman, Kristen
<[e-mail]>
Subject: [EXT] RE: Finkelstein, Keith v. USAA - 3:20-cv-00411 Requesting Dates for Plaintiff's Deposition
External Email
Dear Ms. Cordell:
Mary will get back to you regarding availability and logistics for depositions, but I wanted to
let you know we are working on answering his written discovery and may need an extension
to finalize. Just want to make sure that there will be enough time between discovery
responses finalized and the deposition. Please advise if you are amenable to an extension.
Thank you.
Sincerely,
Susanne Pecorino
Office Administrator and Certified Paralegal
NEVADA LAW.NEVADA LAWYERS
Law Office of Terry Friedman and Julie Throop, PLLC
300 S. Arlington Ave.
Reno, NV 89501
[phone] Telephone
[phone] Facsimile
***** PLEASE NOTE ***** This E-Mail/telefax message and any documents accompanying
this transmission may contain privileged and/or confidential information and is intended
solely for the addressee(s) named above. If you are not the intended addressee/recipient,
you are hereby notified that any use of,disclosure, copying, distribution, or reliance on the
contents of this E-Mail/telefax information is strictly prohibited and may result in legal action
against you. Please reply to the sender advising of the error in transmission and immediately
delete/destroy the message and any accompanying documents. Thank
you.*****
-------- Original Message -------Subject: Finkelstein, Keith v. USAA - 3:20-cv-00411 - Requesting Dates
for Plaintiff's Deposition
From: "Cordell, Anne" <[e-mail]>
Date: Thu, November 12, 2020 11:29 am
To: "[e-mail]" <[e-mail]>
Cc: "[e-mail]" <[e-mail]>,
"[e-mail]" <[e-mail]>,
"[e-mail]" <[e-mail]>,
"[e-mail]" <[e-mail]>, "Taylor, Jennifer"
<[e-mail]>, "O'Briant, Priscilla"
<[e-mail]>, "Freeman, Robert"
<[e-mail]>, "Freeman, Kristen"
<[e-mail]>

We are seeking dates for the setting of Keith Finkelstein’s
deposition, via Zoom.
December 9, 10 or 11, 2020 at either 9:30 a.m. or 1:30 p.m. are
currently available.
Please advise which of those dates work for you and your client so
that we may proceed with the

Case 3:20-cv-00411-MMD-CLB Document 20 Filed 11/19/20 Page 11 of 11
21
notice of Keith Finkelstein’s deposition. Thank you.

Anne Cordell, Assistant to
Priscilla L. O’Briant, Esq.
Jennifer A. Taylor, Esq.
Tara U. Teegarden, Esq.
[e-mail]
T: 702.693.4324 F: 702.893.3789
6385 S. Rainbow Blvd., Ste. 600, Las
Vegas, NV 89118 | LewisBrisbois.com
Representing clients from coast to coast. View our
nationwide locations.
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