Opinion
2:23-cv-00849-KKE
07-30-2024
BRANDON SHAW and EMILY SHAW, individually and as husband and wife, including their marital community comprised thereto, and on behalf of T.S., a minor, Plaintiffs, v. THE UNITED STATES OF AMERICA, Defendant.
ORDER GRANTING STIPULATED MOTION TO COMPEL FRCP 35 NEUROPSYCHOLOGICAL EXAMS
Kymberly K. Evanson, United States District Judge
Before the Court is the parties' stipulated motion to compel Rule 35 examinations. ECF No. 25. The Court has reviewed the motion, the corrected motion (Dkt. No. 26-1), and all other relevant filings.
As the parties agree that Plaintiffs' mental or physical conditions are in controversy in this action, and because the parties agree that there is good cause to compel independent neuropsychological exams under Federal Rule of Civil Procedure 35, the Court GRANTS the parties' stipulated motion to compel (Dkt. No. 25) according to the terms agreed upon by the parties:
1. The neuropsychological examination of Plaintiff T.S. shall take place in Spokane Valley, Washington, on August 6-8, 2024, at the offices of Dr. Michelle White, Ph.D.;
2. The neuropsychological examination of Plaintiff Emily Shaw shall take place in Spokane Valley, Washington, on August 27-29, 2024, at the offices of Dr. Michelle White, Ph.D.;
3. The examiner shall be Dr. Michelle White, Ph.D. (“The Examiner);
4. The exams shall consist of both interviewing and testing. The Examiner shall provide for and allow all reasonable breaks during testing (i.e., bathroom, water and/or one or more 15-minute breaks in the morning and afternoon), and a 45-minute lunch break;
5. The Examiner shall make a written report in accordance with Rule 35(b) and other applicable discovery rules;
6. Dr. Michelle White will disclose, as soon as reasonably practical, the neuropsychological examination testing data directly to any of Plaintiffs' selected neuropsychological experts.
7. Plaintiff shall have the right to take the deposition of the Examiner for the purpose of discovery, unless the Defendant decides not to call the Examiner as a witness at trial. Such a determination shall be made 30 days after the report has been disclosed to counsel;
8. The Examiner shall not do any physically invasive tests;
9. No laboratory (i.e. blood or urine draw) tests may be given;
10. No person, other than the Examiner and the Plaintiff, shall participate in any way in the examination (except for psychometricians and/or similar technical staff or agents of the Examiner);
11. Dr. White shall administer well normed, written psychological tests or exams;
12. A list of all records reviewed by the Examiner shall be reflected in the Examiner's report;
13. The Plaintiff does not have the right to have a representative present at either the testing or interview portion of the examination, nor will there be any recording, whether audio or video, of the examination, pre-screening of examination materials, or limitation of the Examiner's ability to review Plaintiffs' history;
14. The Examiner shall not ask about negligence or liability related to this case;
15. Defendant will pay the cost of lodging in Spokane/Spokane Valley, Washington during the timeframe for the IME exams, as well as the cost of reasonable reimbursement for mileage from Moses Lake, Washington.