1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MICHAEL WITKIN, No. 2:19-cv-0406 DJC KJN P 12 Plaintiff, 13 v. ORDER 14 MARIANA LOTERSZTAIN, et al., 15 Defendants. 16 17 Plaintiff is a former state prisoner, proceeding pro se, with this civil rights action seeking 18 relief under 42 U.S.C. § 1983. On December 29, 2023, defendant Lotersztain filed a motion for 19 independent medical exam of plaintiff’s fourth right finger by defendant’s expert. Twenty-one 20 days have passed, and plaintiff has not filed an opposition.1 As discussed below, defendants’ 21 motion is granted. 22 Background 23 Mariana Lotersztain is the sole remaining defendant. Counsel for defendant previously 24 provided plaintiff with the date, location, and time of the independent medical exam because it 25 needed to be prearranged with defendant’s expert, Dr. Younger. (ECF No. 108 at 5.) Counsel 26 then asked plaintiff if he would stipulate to the independent medical exam. Plaintiff said he 27
28 1 Plaintiff was granted leave to file electronically on August 8, 2022. (ECF No. 87.) 1 would consider the request when counsel provided the proposed stipulation. At plaintiff’s 2 request, the examination was moved to a Thursday, and on December 15, 2023, counsel provided 3 plaintiff the proposed stipulation by email. On December 20, 2023, plaintiff indicated he would 4 not agree to the stipulation. (ECF No. 108 at 30.) 5 Legal Standards 6 Rule 35 of the Federal Rules of Civil Procedure permits a court to “order a party whose 7 mental or physical condition . . . is in controversy to submit to a physical or mental examination 8 by a suitably licensed or certified examiner.” Fed. R. Civ. P. 35(a)(1). “One of the purposes of 9 Rule 35 is to ‘level the playing field’ between parties in cases in which a party’s physical or 10 mental condition is in issue.” Ragge v. MCA/Universal Studios, 165 F.R.D. 605, 608 (C.D. Cal. 11 1995); see also Perona v. Time Warner Cable Inc., 2016 WL 9051867, at *4 (C.D. Cal. May 5, 12 2016). Under Rule 35, the party moving for a physical or mental examination must meet two 13 requirements: (1) the physical or mental condition of the party must be “in controversy”; and (2) 14 “good cause” for the examination must be established. Ragge, 165 F.R.D. at 608 (citing 15 Schlagenhauf v. Holder, 379 U.S. 104, 117-20 (1964)). The Supreme Court has recognized that 16 the pleadings alone may establish both requirements, as in the case of a plaintiff who asserts a 17 mental or physical injury. Schlagenhauf, 379 U.S. at 119 (plaintiff who asserts mental or physical 18 injury in his pleadings “places that . . . injury clearly in controversy and provides . . . good cause 19 for an examination to determine the existence and extent of such asserted injury.”). 20 If an examination is ordered, Rule 35 requires the court order “specify the time, place, 21 manner, conditions, and scope of the examination, as well as the person or persons who will 22 perform it.” Id. “Courts have discretion in setting appropriate conditions for a physical or mental 23 examination depending on the facts and circumstances of each case.” Newman v. San Joaquin 24 Delta Community College District, 272 F.R.D. 505, 511 (E.D. Cal. Feb. 15, 2011). 25 Discussion 26 Here, plaintiff seeks damages from defendant based on plaintiff’s claim that defendant 27 Lotersztain was deliberately indifferent to plaintiff’s need for medical care for his fractured fourth 28 finger on his right hand by intentionally delaying plaintiff’s treatment, failing to splint the finger, 1 and intentionally delaying the scheduling of an appointment with a specialist, resulting in 2 permanent disfigurement and loss of range of motion. (ECF No. 1.) In addition, in an 3 interrogatory response, plaintiff claims his finger “is grotesquely and permanently mangled with a 4 significant permanent loss of function.” (ECF No. 108 at 26 (response to interrogatory no. 17).) 5 Thus, the physical condition of plaintiff’s fourth finger on his right hand is in controversy. 6 As for good cause, the motion demonstrates that defendant has no other means of 7 discovering plaintiff’s current medical condition of the finger. Plaintiff is no longer in custody. 8 And while defendant has copies of plaintiff’s medical records, defendant and defendant’s expert 9 should be provided an opportunity to evaluate the extent of plaintiff’s injury as well as his current 10 ability to use the finger in controversy, and to rebut plaintiff’s expert report. See O’Sullivan v. 11 Rivera, 229 F.R.D. 184, 186 (D. N.M. 2004) (granting motion for independent medical exam). 12 Plaintiff provides no arguments or evidence in opposition to the motion; indeed, he filed 13 no opposition. 14 Because plaintiff has placed the condition of his right fourth finger in controversy and 15 defendant has shown good cause for an independent medical exam, defendant’s motion is 16 granted. The undersigned reviewed the curriculum vitae of Edward W. Younger, III, M.D., who 17 is a Board Certified orthopedic surgeon with over 30 years of experience. (ECF No. 108 at 42- 18 47.) Dr. Younger is qualified to perform the independent medical exam. 19 Plaintiff shall report to the office of Edward Younger, M.D., at Art of Smile Dental 20 Practice, 3370 Mt. Diablo Blvd., Lafayette, California, on February 8, 2023, at 11:00 a.m. for the 21 examination. The medical examination shall consist of a physical examination limited to 22 plaintiff’s fourth finger on his right hand, and plaintiff shall provide any necessary information as 23 to his medical history in relation to the fourth right finger injury. Dr. Younger’s examination will 24 not include any diagnostic test or procedure that is painful, protracted, or intrusive. Such 25 examination shall not exceed two hours. Plaintiff shall cooperate and not interfere with Dr. 26 Younger’s ability to effectively perform the exam. 27 The record demonstrates that plaintiff has received advance notice of the date, time and 28 location of the independent medical exam and was given an opportunity to adjust the date to 1 | accommodate his schedule. While defendant proposes that the parties may revise the date, 2 | location, and time of the independent medical exam by mutual consent (ECF No. 109 at 2), the 3 || parties are discouraged from doing so in light of the pretrial conference set for April 25, 2024. 4 | Moreover, plaintiff is cautioned that such agreement must be timely and mutual based on Dr. 5 || Younger’s limited availability and his policy of imposing a cancellation charge if the exam is not 6 || cancelled by January 31, 2024. (ECF No. 108 at 4.) Further, if plaintiff simply fails to appear for 7 || the exam, plaintiff may be subject to an order requiring him to pay defendant’s costs incurred 8 | based on plaintiff's failure to appear. 9 Finally, the undersigned is concerned that plaintiff has not responded to the motion for 10 || independent medical exam, or to the pending motion to revoke, which is uncharacteristic for 11 | plaintiff. Plaintiff cautioned that as a pro se litigant, it is his responsibility to diligently 12 || prosecute his case, and he is reminded that failure to do so may result in a recommendation that 13 || the action be dismissed. Local Rule 110; Fed. R. Civ. P. 41(b). 14 Accordingly, IT IS HEREBY ORDERED that: 15 1.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MICHAEL WITKIN, No. 2:19-cv-0406 DJC KJN P 12 Plaintiff, 13 v. ORDER 14 MARIANA LOTERSZTAIN, et al., 15 Defendants. 16 17 Plaintiff is a former state prisoner, proceeding pro se, with this civil rights action seeking 18 relief under 42 U.S.C. § 1983. On December 29, 2023, defendant Lotersztain filed a motion for 19 independent medical exam of plaintiff’s fourth right finger by defendant’s expert. Twenty-one 20 days have passed, and plaintiff has not filed an opposition.1 As discussed below, defendants’ 21 motion is granted. 22 Background 23 Mariana Lotersztain is the sole remaining defendant. Counsel for defendant previously 24 provided plaintiff with the date, location, and time of the independent medical exam because it 25 needed to be prearranged with defendant’s expert, Dr. Younger. (ECF No. 108 at 5.) Counsel 26 then asked plaintiff if he would stipulate to the independent medical exam. Plaintiff said he 27
28 1 Plaintiff was granted leave to file electronically on August 8, 2022. (ECF No. 87.) 1 would consider the request when counsel provided the proposed stipulation. At plaintiff’s 2 request, the examination was moved to a Thursday, and on December 15, 2023, counsel provided 3 plaintiff the proposed stipulation by email. On December 20, 2023, plaintiff indicated he would 4 not agree to the stipulation. (ECF No. 108 at 30.) 5 Legal Standards 6 Rule 35 of the Federal Rules of Civil Procedure permits a court to “order a party whose 7 mental or physical condition . . . is in controversy to submit to a physical or mental examination 8 by a suitably licensed or certified examiner.” Fed. R. Civ. P. 35(a)(1). “One of the purposes of 9 Rule 35 is to ‘level the playing field’ between parties in cases in which a party’s physical or 10 mental condition is in issue.” Ragge v. MCA/Universal Studios, 165 F.R.D. 605, 608 (C.D. Cal. 11 1995); see also Perona v. Time Warner Cable Inc., 2016 WL 9051867, at *4 (C.D. Cal. May 5, 12 2016). Under Rule 35, the party moving for a physical or mental examination must meet two 13 requirements: (1) the physical or mental condition of the party must be “in controversy”; and (2) 14 “good cause” for the examination must be established. Ragge, 165 F.R.D. at 608 (citing 15 Schlagenhauf v. Holder, 379 U.S. 104, 117-20 (1964)). The Supreme Court has recognized that 16 the pleadings alone may establish both requirements, as in the case of a plaintiff who asserts a 17 mental or physical injury. Schlagenhauf, 379 U.S. at 119 (plaintiff who asserts mental or physical 18 injury in his pleadings “places that . . . injury clearly in controversy and provides . . . good cause 19 for an examination to determine the existence and extent of such asserted injury.”). 20 If an examination is ordered, Rule 35 requires the court order “specify the time, place, 21 manner, conditions, and scope of the examination, as well as the person or persons who will 22 perform it.” Id. “Courts have discretion in setting appropriate conditions for a physical or mental 23 examination depending on the facts and circumstances of each case.” Newman v. San Joaquin 24 Delta Community College District, 272 F.R.D. 505, 511 (E.D. Cal. Feb. 15, 2011). 25 Discussion 26 Here, plaintiff seeks damages from defendant based on plaintiff’s claim that defendant 27 Lotersztain was deliberately indifferent to plaintiff’s need for medical care for his fractured fourth 28 finger on his right hand by intentionally delaying plaintiff’s treatment, failing to splint the finger, 1 and intentionally delaying the scheduling of an appointment with a specialist, resulting in 2 permanent disfigurement and loss of range of motion. (ECF No. 1.) In addition, in an 3 interrogatory response, plaintiff claims his finger “is grotesquely and permanently mangled with a 4 significant permanent loss of function.” (ECF No. 108 at 26 (response to interrogatory no. 17).) 5 Thus, the physical condition of plaintiff’s fourth finger on his right hand is in controversy. 6 As for good cause, the motion demonstrates that defendant has no other means of 7 discovering plaintiff’s current medical condition of the finger. Plaintiff is no longer in custody. 8 And while defendant has copies of plaintiff’s medical records, defendant and defendant’s expert 9 should be provided an opportunity to evaluate the extent of plaintiff’s injury as well as his current 10 ability to use the finger in controversy, and to rebut plaintiff’s expert report. See O’Sullivan v. 11 Rivera, 229 F.R.D. 184, 186 (D. N.M. 2004) (granting motion for independent medical exam). 12 Plaintiff provides no arguments or evidence in opposition to the motion; indeed, he filed 13 no opposition. 14 Because plaintiff has placed the condition of his right fourth finger in controversy and 15 defendant has shown good cause for an independent medical exam, defendant’s motion is 16 granted. The undersigned reviewed the curriculum vitae of Edward W. Younger, III, M.D., who 17 is a Board Certified orthopedic surgeon with over 30 years of experience. (ECF No. 108 at 42- 18 47.) Dr. Younger is qualified to perform the independent medical exam. 19 Plaintiff shall report to the office of Edward Younger, M.D., at Art of Smile Dental 20 Practice, 3370 Mt. Diablo Blvd., Lafayette, California, on February 8, 2023, at 11:00 a.m. for the 21 examination. The medical examination shall consist of a physical examination limited to 22 plaintiff’s fourth finger on his right hand, and plaintiff shall provide any necessary information as 23 to his medical history in relation to the fourth right finger injury. Dr. Younger’s examination will 24 not include any diagnostic test or procedure that is painful, protracted, or intrusive. Such 25 examination shall not exceed two hours. Plaintiff shall cooperate and not interfere with Dr. 26 Younger’s ability to effectively perform the exam. 27 The record demonstrates that plaintiff has received advance notice of the date, time and 28 location of the independent medical exam and was given an opportunity to adjust the date to 1 | accommodate his schedule. While defendant proposes that the parties may revise the date, 2 | location, and time of the independent medical exam by mutual consent (ECF No. 109 at 2), the 3 || parties are discouraged from doing so in light of the pretrial conference set for April 25, 2024. 4 | Moreover, plaintiff is cautioned that such agreement must be timely and mutual based on Dr. 5 || Younger’s limited availability and his policy of imposing a cancellation charge if the exam is not 6 || cancelled by January 31, 2024. (ECF No. 108 at 4.) Further, if plaintiff simply fails to appear for 7 || the exam, plaintiff may be subject to an order requiring him to pay defendant’s costs incurred 8 | based on plaintiff's failure to appear. 9 Finally, the undersigned is concerned that plaintiff has not responded to the motion for 10 || independent medical exam, or to the pending motion to revoke, which is uncharacteristic for 11 | plaintiff. Plaintiff cautioned that as a pro se litigant, it is his responsibility to diligently 12 || prosecute his case, and he is reminded that failure to do so may result in a recommendation that 13 || the action be dismissed. Local Rule 110; Fed. R. Civ. P. 41(b). 14 Accordingly, IT IS HEREBY ORDERED that: 15 1. Defendant’s motion for independent medical examination (ECF No. 108) is granted; 16 2. A physical examination of plaintiff Michael Witkin shall be conducted by Edward 17 || Younger, M.D., at Art of Smile Dental Practice, 3370 Mt. Diablo Blvd., Lafayette, California, on 18 | February 8, 2023, starting at 11:00 a.m. However, the date, location, and time of the exam may 19 || be revised upon a timely request and the mutual consent of both parties, as set forth above. 20 3. Plaintiff shall present himself for the independent medical examination by Dr. Younger 21 || to examine plaintiff's fourth finger on his nght hand. The examination shall consist of a physical 22 || examination, and plaintiff shall also provide any necessary information as to his medical history 23 || in relation to his fourth right finger injury. The examination will not include any diagnostic test 24 || or procedure that is painful, protracted, or intrusive. Such examination shall not exceed two 25 | hours. Plaintiff shall cooperate and not interfere with Dr. Younger’s ability to effectively perform 26 || the exam. 27 Dated: January 24, 2024 /vitk0406.ime Ly’ 28 7 few dell Newser ‘ KENDALL J.NE TINTITED STATES MA CTETE ATE TINncEe