Cincys v. Allstate Fire and Casualty Insurance Company

Opinion

The Honorable Barbara J. Rothstein

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

DATED this 23rd day of February 2024.

DRIGGS, BILLS, & Day PLLC

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

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

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

Dated: February 28, 2024.

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

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

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

Approved by:

DRIGGS, BILLS, & Day PLLC

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