2 UNITED STATES DISTRICT COURT 3 DISTRICT OF NEVADA 4 * * * 5 Delron D. Mims, an individual; and Case No. 2:24-cv-00342-APG-DJA 6 Shareef A. Brown, an individual
7 Plaintiffs, Order
8 v.
9 Shentel Kalakau, an individual; and Doordash, Inc., a foreign corporation; et al. 10 Defendants. 11 12 This is a personal injury action arising out of a car accident. Plaintiff Delron D. Mims and 13 Shareef A. Brown sue Defendant Shentel Kalakau and Defendant Doordash, Inc. for damages, 14 alleging claims for negligence, negligence per se, respondeat superior, and negligent hiring and 15 supervision. Kalakau moves to compel Brown to undergo a Federal Rule of Civil Procedure 35 16 examination with Dr. James Forage. (ECF No. 24). Kalakau explains that, despite two meet and 17 confers, the parties cannot agree on five requirements for the exam that Brown’s counsel has 18 demanded. 19 Because the Court finds that Kalakau has demonstrated good cause for the Rule 35 exam, 20 the Court grants her motion to compel it. Because the Court finds that the proposed limitations 21 over which the parties disagree are not necessary, the Court declines to impose those limitations. 22 Because the Court’s order setting a Rule 35 examination must specify the time, place, manner, 23 conditions, and scope of the examination, the Court will require the parties to meet and confer 24 and submit a stipulation for the examination outlining these items. 25 I. Background. 26 Kalakau argues that there is good cause to order an examination given Brown’s claimed 27 past medical treatment totaling hundreds of thousands of dollars and future medical treatment in 1 argues that Brown’s demands are unnecessary and attempt to prematurely limit the examination. 2 Brown’s demands include the following limitations: 3 • The doctor’s opinions are limited to only the areas of his specialty and only the areas 4 of Plaintiff’s current complaints, both of which must be specifically delineated in the 5 order. 6 • The doctor will not offer any secondary gain, malingering or veracity opinions. 7 • The doctor will not offer any opinions as to criticisms of any of the Plaintiff’s 8 treatment because it was on a lien. 9 • The exam does not go longer than one hour. 10 • The exam must not be referred to as independent in any report or at trial but may be 11 referred to as a Rule 35 exam or a defense medical exam. 12 Kalakau adds that, if Brown has any concerns with Dr. Forage’s questions or findings, the 13 proper way to handle those concerns would be through a motion in limine seeking to limit the 14 admissibility of Dr. Forage’s findings. In a separate section, Kalakau outlines the proposed place, 15 manner, and scope of the examination. Kalakau does not set out the proposed time of the 16 examination, which is reasonable given the fact that she is awaiting the Court’s ruling on the 17 motion. 18 Brown argues that a Rule 35 examination is not necessary at all because he has provided 19 Kalakau with his medical records, answers to interrogatories, and deposition testimony and 20 because Kalakau failed to show why these less intrusive means of obtaining the information she 21 seeks is not sufficient. (ECF No. 27). Brown dedicates most of his motion to asserting, without 22 addressing the points in Kalakau’s motion, that Kalakau “made no effort to set forth the manner 23 and scope of the exam.” Brown also brings up Nevada Assembly Bill 244 and Nevada Revised 24 Statute (“NRS”) § 629.620 without explanation and argues that “good cause exists for recording 25 and an observer,” although Kalakau did not bring this up in her motion. In addressing Kalakau’s 26 arguments regarding Brown’s proposed parameters, Brown addresses only the parameters 27 limiting the examination to specific body parts and complaints; opining regarding secondary gain, 1 the exam as “independent.” Brown does not address the remaining parameter regarding the 2 length of the exam, instead simply reiterating his condition that the exam be limited to one hour. 3 In reply, Kalakau argues that there is good cause for the Rule 35 exam because of the 4 extent Brown is claiming in damages, particularly in future damages for a surgery. (ECF No. 28). 5 Kalakau asserts that she should be able to engage a physician to evaluate Brown’s pre-procedure 6 symptomology and to independently verify whether Brown meets the criteria for the surgery. 7 Kalakau also argues that, because most, if not all, of Brown’s treatment has been on an attorney’s 8 lien, “[t]his gives Mr. Brown’s treating physicians a clear financial interest in the outcome of this 9 case and render[s] them inherently biased,” so an exam is necessary. Kalakau also points out that 10 her motion set out the place, manner, and scope of the examination, contrary to Brown’s 11 argument. Kalakau argues that Brown has only meaningfully addressed three of the five 12 parameters over which the parties disagree. Regarding Brown’s arguments about AB 244 and 13 NRS § 629.620, Kalakau points out that the parties already agreed on Brown’s assertion that he is 14 entitled to have an observer under AB 244 and NRS § 629.620. 15 II. Discussion. 16 A. Whether Kalakau has demonstrated that a Rule 35 examination is necessary. 17 Federal Rule of Civil Procedure 35 provides that the court “may order a party whose 18 mental or physical condition ... is in controversy to submit to a physical or mental examination by 19 a suitably licensed or certified examiner.” Fed. R. Civ. P. 35(a)(1). “The order: (A) may be made 20 only on motion for good cause and on notice to all parties and the person to be examined; and 21 (B) must specify the time, place, manner, conditions, and scope of the examination, as well as the 22 person or persons who will perform it.” Fed. R. Civ. P. 35(a)(2). Unlike reports for testifying 23 experts under Rule 26(a)(2), which must be served on the opposing party at the time of the expert 24 disclosure, Rule 35 reports are not required to be produced by the moving party unless requested 25 by the opposing party or the person examined. Fed. R. Civ. P. 35(b)(1). The examiner’s report 26 must “set out in detail the examiner’s findings, including diagnoses, conclusions, and the results 27 of any tests.” Fed. R. Civ. P. 35(b)(2). 1 In Schlagenhauf v. Holder, the Supreme Court established standards for district courts 2 deciding whether to compel a Rule 35 examination. Schlagenhauf v. Holder, 379 U.S. 104 3 (1964). The Schlagenhauf Court explained that Rule 35’s “in controversy” and “good cause” 4 requirements are not met by “mere conclusory allegations of the pleadings -- nor by mere 5 relevance to the case -- but require an affirmative showing by the movant that each condition as to 6 which the examination is sought is really and genuinely in controversy and that good cause exists 7 for ordering each particular examination.” Id. at 118; see also Ragge v. MCA/Universal Studios, 8 165 F.R.D. 605, 608 (C.D. Cal. 1995) (citing Schlagenhauf).
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2 UNITED STATES DISTRICT COURT 3 DISTRICT OF NEVADA 4 * * * 5 Delron D. Mims, an individual; and Case No. 2:24-cv-00342-APG-DJA 6 Shareef A. Brown, an individual
7 Plaintiffs, Order
8 v.
9 Shentel Kalakau, an individual; and Doordash, Inc., a foreign corporation; et al. 10 Defendants. 11 12 This is a personal injury action arising out of a car accident. Plaintiff Delron D. Mims and 13 Shareef A. Brown sue Defendant Shentel Kalakau and Defendant Doordash, Inc. for damages, 14 alleging claims for negligence, negligence per se, respondeat superior, and negligent hiring and 15 supervision. Kalakau moves to compel Brown to undergo a Federal Rule of Civil Procedure 35 16 examination with Dr. James Forage. (ECF No. 24). Kalakau explains that, despite two meet and 17 confers, the parties cannot agree on five requirements for the exam that Brown’s counsel has 18 demanded. 19 Because the Court finds that Kalakau has demonstrated good cause for the Rule 35 exam, 20 the Court grants her motion to compel it. Because the Court finds that the proposed limitations 21 over which the parties disagree are not necessary, the Court declines to impose those limitations. 22 Because the Court’s order setting a Rule 35 examination must specify the time, place, manner, 23 conditions, and scope of the examination, the Court will require the parties to meet and confer 24 and submit a stipulation for the examination outlining these items. 25 I. Background. 26 Kalakau argues that there is good cause to order an examination given Brown’s claimed 27 past medical treatment totaling hundreds of thousands of dollars and future medical treatment in 1 argues that Brown’s demands are unnecessary and attempt to prematurely limit the examination. 2 Brown’s demands include the following limitations: 3 • The doctor’s opinions are limited to only the areas of his specialty and only the areas 4 of Plaintiff’s current complaints, both of which must be specifically delineated in the 5 order. 6 • The doctor will not offer any secondary gain, malingering or veracity opinions. 7 • The doctor will not offer any opinions as to criticisms of any of the Plaintiff’s 8 treatment because it was on a lien. 9 • The exam does not go longer than one hour. 10 • The exam must not be referred to as independent in any report or at trial but may be 11 referred to as a Rule 35 exam or a defense medical exam. 12 Kalakau adds that, if Brown has any concerns with Dr. Forage’s questions or findings, the 13 proper way to handle those concerns would be through a motion in limine seeking to limit the 14 admissibility of Dr. Forage’s findings. In a separate section, Kalakau outlines the proposed place, 15 manner, and scope of the examination. Kalakau does not set out the proposed time of the 16 examination, which is reasonable given the fact that she is awaiting the Court’s ruling on the 17 motion. 18 Brown argues that a Rule 35 examination is not necessary at all because he has provided 19 Kalakau with his medical records, answers to interrogatories, and deposition testimony and 20 because Kalakau failed to show why these less intrusive means of obtaining the information she 21 seeks is not sufficient. (ECF No. 27). Brown dedicates most of his motion to asserting, without 22 addressing the points in Kalakau’s motion, that Kalakau “made no effort to set forth the manner 23 and scope of the exam.” Brown also brings up Nevada Assembly Bill 244 and Nevada Revised 24 Statute (“NRS”) § 629.620 without explanation and argues that “good cause exists for recording 25 and an observer,” although Kalakau did not bring this up in her motion. In addressing Kalakau’s 26 arguments regarding Brown’s proposed parameters, Brown addresses only the parameters 27 limiting the examination to specific body parts and complaints; opining regarding secondary gain, 1 the exam as “independent.” Brown does not address the remaining parameter regarding the 2 length of the exam, instead simply reiterating his condition that the exam be limited to one hour. 3 In reply, Kalakau argues that there is good cause for the Rule 35 exam because of the 4 extent Brown is claiming in damages, particularly in future damages for a surgery. (ECF No. 28). 5 Kalakau asserts that she should be able to engage a physician to evaluate Brown’s pre-procedure 6 symptomology and to independently verify whether Brown meets the criteria for the surgery. 7 Kalakau also argues that, because most, if not all, of Brown’s treatment has been on an attorney’s 8 lien, “[t]his gives Mr. Brown’s treating physicians a clear financial interest in the outcome of this 9 case and render[s] them inherently biased,” so an exam is necessary. Kalakau also points out that 10 her motion set out the place, manner, and scope of the examination, contrary to Brown’s 11 argument. Kalakau argues that Brown has only meaningfully addressed three of the five 12 parameters over which the parties disagree. Regarding Brown’s arguments about AB 244 and 13 NRS § 629.620, Kalakau points out that the parties already agreed on Brown’s assertion that he is 14 entitled to have an observer under AB 244 and NRS § 629.620. 15 II. Discussion. 16 A. Whether Kalakau has demonstrated that a Rule 35 examination is necessary. 17 Federal Rule of Civil Procedure 35 provides that the court “may order a party whose 18 mental or physical condition ... is in controversy to submit to a physical or mental examination by 19 a suitably licensed or certified examiner.” Fed. R. Civ. P. 35(a)(1). “The order: (A) may be made 20 only on motion for good cause and on notice to all parties and the person to be examined; and 21 (B) must specify the time, place, manner, conditions, and scope of the examination, as well as the 22 person or persons who will perform it.” Fed. R. Civ. P. 35(a)(2). Unlike reports for testifying 23 experts under Rule 26(a)(2), which must be served on the opposing party at the time of the expert 24 disclosure, Rule 35 reports are not required to be produced by the moving party unless requested 25 by the opposing party or the person examined. Fed. R. Civ. P. 35(b)(1). The examiner’s report 26 must “set out in detail the examiner’s findings, including diagnoses, conclusions, and the results 27 of any tests.” Fed. R. Civ. P. 35(b)(2). 1 In Schlagenhauf v. Holder, the Supreme Court established standards for district courts 2 deciding whether to compel a Rule 35 examination. Schlagenhauf v. Holder, 379 U.S. 104 3 (1964). The Schlagenhauf Court explained that Rule 35’s “in controversy” and “good cause” 4 requirements are not met by “mere conclusory allegations of the pleadings -- nor by mere 5 relevance to the case -- but require an affirmative showing by the movant that each condition as to 6 which the examination is sought is really and genuinely in controversy and that good cause exists 7 for ordering each particular examination.” Id. at 118; see also Ragge v. MCA/Universal Studios, 8 165 F.R.D. 605, 608 (C.D. Cal. 1995) (citing Schlagenhauf). However, the Schlagenhauf Court 9 further explained that “there are situations where the pleadings alone are sufficient to meet these 10 requirements.” Schlagenhauf, 379 U.S. at 119. For example, a plaintiff “who asserts mental or 11 physical injury ... places that mental or physical injury clearly in controversy and provides the 12 defendant with good cause for an examination to determine the existence and extent of such 13 asserted injury.” Id. 14 Here, Kalakau has shown that a Rule 35 exam is warranted. Brown has put his physical 15 state in controversy because he has alleged physical injury and emotional distress arising out of 16 the car accident. Because Brown has put his physical state in controversy, Kalakau has good 17 cause for the examination to determine the existence and extent of Brown’s injuries. 18 B. Whether the Court will impose Brown’s proposed limitations. 19 The Court declines to impose Brown’s proposed limitations. “Because the…examination 20 provides one of the few opportunities for a defendant to have access to a plaintiff, and the only 21 opportunity for a defendant to have a plaintiff examined by a defendant’s expert, some preference 22 should be given to allowing the examiner to exercise discretion in the manner and means by 23 which the examination is conducted, provided it is not an improper examination.” Ragge v. 24 MCA/Universal Studios, 165 F.R.D. 605, 609 (C.D. Cal. 1995). “If the examination is improper, 25 it may be excluded at trial.” Id. at 609 n.5 (citing 8A Charles A. Wright, Arthur R. Miller & 26 Richard L. Marcus, Federal Practice & Procedure, § 2236 (2d ed. 1994)). 27 Here, Brown has not shown why any specific limitations on the examination should be 1 Brown to unnecessary testing or inquiry. And, if he did, Brown may always seek to exclude Dr. 2 Forage’s opinions at trial. 3 So, the Court grants Kalakau’s motion to compel a Rule 35 exam without the limitations 4 proposed by Brown. Because Kalakau’s motion does not include a proposed time for the exam, 5 and because the Court’s order must include it, the Court will not enter an order setting the exam 6 here. Instead, the Court will require the parties to meet and confer and submit a stipulation 7 including the proposed time, place, manner, conditions, and scope of the examination. 8 9 IT IS THEREFORE ORDERED that Kalakau’s motion to compel a Rule 35 exam 10 (ECF No. 24) is granted. The parties must meet and confer and submit a stipulation including 11 the proposed time, place, manner, conditions, and scope of the examination as well as the person 12 or persons who will perform it as required by Federal Rule of Civil Procedure 35(a)(2)(B). 13 14 DATED: April 9, 2025 15 DANIEL J. ALBREGTS 16 UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 27