Davis v. Johnson International Industries, Inc. et al

Filing 18

STIPULATION AND ORDER FOR RULE 35 EXAM by Judge Thomas S. Zilly. The Rule 35 Examination shall occur beginning at 8:30 am on August 1, 2017, at the offices of Dr. Mark McClung. (PM)

The Honorable Thomas S. Zilly

1
2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WASHINGTON AT SEATTLE

7
8
9

MICHAEL DAVIS,
Case No. 2:16-cv-1660-TSZ
Plaintiff,

10
v.

11
12
13
14
15

JOHNSON INTERNATIONAL
INDUSTRIES, INC., d/b/a CONTINENTAL
HARDWOOD CO., a Washington
Corporation, and LISA JOHNSON, an
individual and the marital community
comprised of LISA JOHNSON and DON
FULLER,

STIPULATION AND ORDER FOR RULE
35 EXAM

16
Defendants.

17
18

A.

BACKGROUND INFORMATION

19

Plaintiff seeks recovery for alleged emotional distress, which is alleged to be the result of

20

the acts and omissions of the Defendants. The Defendants have requested an examination

21

pursuant to FRCP 35. A Rule 35 rule requirement is that there be a mental or physical condition

22

“in controversy.” The parties desire to stipulate to the following without the need for Defendants

23

to file a motion to make a showing of good cause

24

B.

25

STIPULATION

It is understood and therefore stipulated that:

26

1.

27

1200 Fifth Avenue, Suite 2010, Seattle, WA 98101.

The Rule 35 examination shall take place at the offices of Dr. Mark McClung located at

STIPULATION AND ORDER FOR RULE 35 EXAM - 1

SEBRIS BUSTO JAMES
14205 S.E. 36th Street, Suite 325
Bellevue, Washington 98006
Tel: [phone] – Fax:[phone]

1

2.

The Rule 35 Examination shall occur beginning at 8:30 am on August 1, 2017.

2

3.

The Rule 35 examination shall be conducted by Dr. Mark McClung (“Examiner”). It may

3

consist of a psychiatric interview and administration of a written test and short questionnaires.

4

The Examination with testing shall last no longer than six (6) hours, aside from a lunch break

5

and any other breaks or other delays caused by the Plaintiff or his representative.

6

4.

7

who may take notes and videotape and/or audiotape the proceedings, at no extra charges by the

8

Examiner, so long as Plaintiff provides the name of the representative in advance of the

9

examination. If Plaintiff’s representative records the examination (video or audio), Plaintiff will

10

provide a copy of the recording to Defendants within five (5) business days after the

11

examination. Plaintiff’s representative will not interfere with or obstruct the examination unless

12

the scope of the examination invades attorney-client or other privileges belonging to Mr. Davis,

13

or violates the terms of this agreement. Defendants have no right to have a representative

14

present at the examination.

15

5.

16

cause a copy of the report to be delivered to Plaintiff’s counsel within five (5) business days of

17

its receipt by Defendants’ counsel, and no later than thirty (30) calendar days after the date of the

18

exam. The written report of the examination shall be detailed and set forth separately:

Plaintiff shall have the right to have a single representative present at the examination

Examiner shall make a written report of the exam; the attorneys for Defendants shall

19

a.

The findings made by the Examiner;

20

b.

The results of all tests made by or done at the request of the Examiner;

21

c.

The diagnosis, if any, made by the Examiner;

22

d.

The findings upon which the diagnosis is based; and,

23

e.

The conclusions reached by the Examiner.

24

6.

After the delivery of the report, Plaintiff shall have the right to take the discovery

25

deposition of the Examiner. The Defendants will give written notice within thirty (30) days of

26

receipt of the report as to whether they will call the Examiner as a witness at trial. The Examiner

27

shall make himself available for deposition on a mutually agreeable date no later than forty-five
STIPULATION AND ORDER FOR RULE 35 EXAM - 2

SEBRIS BUSTO JAMES
14205 S.E. 36th Street, Suite 325
Bellevue, Washington 98006
Tel: [phone] – Fax:[phone]

1

(45) days prior to trial in this case, the date of which shall be provided to Examiner by defense

2

counsel prior to the examination.

3

7.

4

fee not to exceed $600 per hour. Billing records for all fees and costs associated with the exam

5

provided by the Examiner to the Defendant shall be provided to Plaintiff’s counsel at least five

6

(5) days prior to any deposition of the Examiner to be taken by Plaintiff’s counsel. This

7

agreement does not in any way limit Plaintiff’s right to discovery.

8

8.

9

the examination, including scoring or interpretation of tests, with the exception of Caldwell

10

Reports, which Examiner may retain to score written test results. Each such person or entity so

11

participating shall be identified to the Plaintiff on or before the date of examination, or when the

12

person or entity is identified by Examiner, with address and description of the role of each.

13

9.

14

examination. Defendants’ counsel will be responsible for ensuring that the Examiner is apprised

15

of the Stipulation’s limitations in advance of the examination so that if the Examiner has any

16

issues with the stipulation, they will be resolved prior to the date and time of the examination. If

17

the Examiner obstructs the performance of the examination, at the time of the examination, based

18

on issues that could have been resolved in advance, the examination may be postponed and all

19

costs associated with the postponement will be borne by Defendants.

20

10.

21

will be determined by the Court and shall not be offered by a party without prior approval of the

22

trial court.

23

11.

24

pertinent to psychological examination and diagnosis. No questions will be asked that invade or

25

attempt to invade Mr. Davis’ attorney-client privilege or work product. If Plaintiff’s

26

representative determines that specific questions by Dr. McClung would invade attorney-client

27

or work product privileged communications, the representative may instruct Plaintiff not to

The fees to be charged by the Examiner to Plaintiff for a deposition shall be a reasonable

No person, other than the Examiner or Examiner’s staff, shall participate in any way in

A copy of this Stipulation shall be given to the Examiner at least ten (10) days before the

If admissibility of the raw test answers and raw test materials is sought by any party, it

All questions posed to Plaintiff by the Examiner or staff shall be confined to issues

STIPULATION AND ORDER FOR RULE 35 EXAM - 3

SEBRIS BUSTO JAMES
14205 S.E. 36th Street, Suite 325
Bellevue, Washington 98006
Tel: [phone] – Fax:[phone]

1

answer those questions. If Defendants believe that Plaintiff improperly refused to answer a

2

question, the examination can be resumed by agreement of the parties or by order of the Court.

3

The Examiner shall be instructed not to ask Plaintiff about his communications with his attorneys

4

or his opinions or knowledge of the litigation, litigation rationale or strategy, or the damages or

5

settlements or verdict sought.

6

12.

7

will not be billed for anything related to the examination or the report.

8

13.

9

Examination.” Both the Examiner and all defense counsel are specifically prohibited from

10

referring to the examination as an “independent medical examination” at any time and

11

specifically in any deposition, pleading, or at trial.

12

14.

13

counted as part of the six (6) hour examination time.

14

15.

15

Dr. McClung as a witness, none of the materials or forms from the CR 35 examination, nor the

16

opinions of Dr. McClung, may be used in evidence, nor for impeaching or cross examining other

17

witnesses at trial, without the prior approval of the Court.

18

16.

19

opinions or testing done by Dr. McClung or anything arising from the Civil Rule 35 Mental

20

Examination.

21

//

22

//

23

//

24

//

25

//

26

//

Plaintiff shall not be responsible for any charges of the Examiner for the examination and

The Examiner’s report shall refer to the examination as a “Civil Rule 35 Mental

Plaintiff will be permitted to take any breaks he feels are necessary, which will not be

If the Defendants withdraw the Examiner as a testifying expert and Plaintiff does not call

This stipulation in no way waives Plaintiff’s rights to challenge the admissibility of

27
STIPULATION AND ORDER FOR RULE 35 EXAM - 4

SEBRIS BUSTO JAMES
14205 S.E. 36th Street, Suite 325
Bellevue, Washington 98006
Tel: [phone] – Fax:[phone]

1

IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.

2
DATED: July 25, 2017

/s/ Marina M. Visan
Todd W. Wyatt, WSBA #31608
Marina M. Visan, WSBA #49127
CARSON & NOEL PLLC
Email: [e-mail]
[e-mail]
20 Sixth Avenue NE
Issaquah, WA 98027
Tel: [phone]
Attorneys for Plaintiff

DATED: July 25, 2017

/s/ Darren A. Feider
Darren A. Feider, WSBA #22430
Tina M. Aiken, WSBA # 27792
Email: [e-mail]
[e-mail]
14205 S.E. 36th Street, Suite 325
Bellevue, Washington 98006
Tel: [phone] / Fax: [phone]
Attorneys for Defendants

3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27

STIPULATION AND ORDER FOR RULE 35 EXAM - 5

SEBRIS BUSTO JAMES
14205 S.E. 36th Street, Suite 325
Bellevue, Washington 98006
Tel: [phone] – Fax:[phone]

1

PURSUANT TO STIPULATION, IT IS SO ORDERED

2
3
DATED this 28th day of July, 2017.
4

6

A

7

Thomas S. Zilly
United States District Judge

5

8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
STIPULATION AND ORDER FOR RULE 35 EXAM - 6

SEBRIS BUSTO JAMES
14205 S.E. 36th Street, Suite 325
Bellevue, Washington 98006
Tel: [phone] – Fax:[phone]