Cincys v. Allstate Fire and Casualty Insurance Company

• Court: District Court, W.D. Washington
• Decided: February 28, 2024
• Docket: 2:23-cv-01914
• Status: Unknown

Opinion

1 The Honorable Barbara J. Rothstein

6 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7 VIRGILIJUS CINCYS, an individual, 8 No. 2:23−cv−01914−BJR Plaintiff, 9 v. STIPULATION AND ORDER RE: PHYSICAL EXAMINATION OF 10 ALLSTATE FIRE AND CASUALTY PLAINTIFF VIRGILIJUS CINCYS INSURANCE COMPANY, a foreign 11 insurance company, licensed to do, and doing business in the State of Washington, 12 Defendant. 13

14 I. STIPULATION 15 16 COMES NOW, Plaintiff Virgilijus Cincys (“Plaintiff”) and Defendant Allstate Fire & 17 Casualty Insurance Company (“Allstate”), and hereby agree and stipulate that Plaintiff shall 18 submit to a physical examination with the following manner, conditions, and scope under 19 Federal Rules of Civil Procedure Rule 35: 20 Physical Examination 21 1. The date and time for the physical examination will be March 11, 2024, at 12:30 22 p.m. Pacific Time. 23

WATHEN | LEID | HALL | RIDER, P.C. 1 2. The physical examination will be performed by Dr. James Harris, MD. Attached to 2 this Stipulation as “Exhibit A” is a true and correct copy of Dr. Harris’s Curriculum 3 Vitae setting forth his qualifications and background as well as a copy of his fee 4 schedule.

5 3. The location of the examination will be 1138 Poplar Place South, Seattle, WA, 6 98144. 7 4. The manner for the physical examination will be a two-part examination consisting 8 of: 9 a. An interview in the medical examiner’s office, consisting of a history of 10 Plaintiff’s injury(s) and treatment for her injury(s); 11 i. The Examiner(s) may ask the Plaintiff questions about the 12 mechanisms of injuries, current complaints, symptoms, and 13 communication necessary to conduct the Examination(s). 14 ii. The Examiner(s) may review the deposition transcript of the

15 Plaintiff, if available, as well as medical records for further 16 information. 17 b. A physical examination of Plaintiff; 18 i. The Examination will not include any diagnostic test or procedure 19 that is painful, protracted, or intrusive. 20 ii. No person other than the Examiner(s) and his/her administrative staff 21 shall participate in any way in the examination or in the evaluation or 22 diagnosis of Plaintiff. 23

WATHEN | LEID | HALL | RIDER, P.C. 1 iii. Dr. Harris will perform an examination consistent with his area of 2 expertise (i.e., Orthopedic). 3 5. The conditions and scope of the physical examination will be a two-part 4 examination, consisting of an interview and physical examination, with a total

5 duration of no longer than three (3) hours. 6 a. Plaintiff shall have the right to have a representative person present at the 7 examination provided they shall not interfere with nor obstruct the 8 examination. 9 b. Plaintiff shall have the right to make an audio and/or video recording of the 10 examination, which shall be made in an unobtrusive manner and at the 11 expense of Plaintiff. If Plaintiff elects to make such recording, a true and 12 correct copy of the audio and/or video recording must be provided to defense 13 counsel within seven (7) days of the Examination. All recording will further 14 be required to be done on a fixed tripod.

15 6. The Examiner(s) shall make a written report of the examination, setting out all the 16 Examiner’s findings, including results of all tests made, and all diagnosis and 17 conclusions. Counsel for Defendant shall cause a copy of the report to be delivered 18 to Counsel for Plaintiff within forty-five days (45) of the examination, unless there 19 is good cause shown for any delay. However, Defendant retains the right to prevent 20 the depositions of the Examiner(s) or use of the Examiner’s report, should the 21 Examiner(s) be made consulting expert(s) in this matter. Mothershead v. Adams, 32 22 Wn. App. 325, 647 P.2d 525 (1982). 23

WATHEN | LEID | HALL | RIDER, P.C. 1 7. After the delivery of the Examiner(s) report, Plaintiff’s Counsel shall have the right 2 to take the discovery deposition of the Examiner(s), unless Defendant’s attorneys 3 decide not to call the Examiner(s) as a witness at trial, said determination to be 4 made and written notice provided to Plaintiff’s attorneys pursuant to the case

5 scheduling order. The Examiner(s) shall make themselves available for deposition 6 no later than sixty (60) days prior to trial or, if a discovery deadline is set by the 7 Court, no later than thirty (30) days prior to that deadline, or as agreed to by the 8 Parties. 9 8. If the Examiner(s) is deposed by Plaintiff’s attorney, Plaintiff will not be 10 responsible for Examiner’s preparation time. 11 9. Fees to be charged by the Examiner(s) to the Plaintiff 's attorneys for time spent at 12 the deposition shall be per the fee schedule. The fee schedule for the Examiner is 13 included herewith. If the fees are reduced by the court, defense counsel will pay the 14 difference.

15 10. A copy of this Stipulation shall be given to the Examiner(s) before the examination. 16 11. Should any dispute arise during the examination regarding the terms and conditions 17 of the examination, the Examiner(s) agrees to contact the undersigned attorneys 18 promptly so that they can attempt to work out a solution to any perceived problem. 19 /// 20 /// 21 /// 22 /// /// 23 ///

WATHEN | LEID | HALL | RIDER, P.C. 1 DATED this 23rd day of February 2024.

2 WATHEN | LEID | HALL | RIDER, P.C.

3 s/ Rory W. Leid ______________________ 4 Rory W. Leid, III, WSBA #25075

5 s/ Dylan R. Knapp_____________________ Dylan R. Knapp, WSBA #58394 6 Attorneys for Defendant 222 Etruria Street 7 Seattle, WA 98109 Tel: (206) 622-0494 | Fax: (206) 587-2476 8 rleid@wlhr.legal | dknapp@wlhr.legal

9 DATED this 23rd day of February 2024.

10 DRIGGS, BILLS, & Day PLLC

11 s/ Stefanie Collins (Via email approval 2/22/24) Stefanie Collins, WSBA #23080 12 Attorney for Plaintiffs 2125 Western Ave. Suite 500 13 Seattle, WA, 98121 scollins@advocates.com 14 Phone: 206-607-9098 Fax: 206-641-3214 15

WATHEN | LEID | HALL | RIDER, P.C. 1 2 Il. ORDER 3 Pursuant to Plaintiff Virgilijus Cincys and Defendant Allstate’s Stipulation, and for

4 good cause shown, the above Stipulation is accepted, adopted and made the Order of the Court.

5 Dated: February 28, 2024.

° & Aaa eu, Barbara Jacobs Rothstein g U.S. District Court Judge 9 10 Presented by: WATHEN | LEID | HALL | RIDER, P.C.

12 . s/ Rory W. Leid, III B Rory W. Leid, II, WSBA #25075

14 s/ Dylan R. Knapp Dylan R. Knapp, WSBA #58394 15 Attorneys for Defendant Allstate 222 Etruria Street 16 Seattle, WA 98109 Tel: (206) 622-0494 | Fax: (206) 587-2476 7 rleid@wlhr.legal | dknapp@wlhr.legal

18 Approved by:

19 DRIGGS, BILLS, & Day PLLC

20 s/ Stefanie Collins (Via email approval 2/22/24) Stefanie Collins, WSBA #23080 Attorney for Plaintiffs 2125 Western Ave. Suite 500 Seattle, WA, 98121 22 scollins@advocates.com Phone: 206-607-9098 23 |) Fax: 206-641-3214

No. 2:23-ev-01914 WATHEN | LEID | HALL | RIDER, P.C. STIPULATION AND ORDER RE: PHYSICAL SEATTLE, WASHINGTON 98109 EXAMINATION OF PLAINTIFF - 6 (206) 622-0494/FAX (206) 587-2476