UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA, FRESNO DIVISION
March 4, 2011
TERRY SANDRES, AN INDIVIDUAL,
CORRECTIONS CORPORATION OF AMERICA,
A MARYLAND CORPORATION; AND DOES 1 THROUGH 50, INCLUSIVE,
The opinion of the court was delivered by: District Judge: Hon. Oliver W.Wanger
Magistrate: Hon. Jennifer L. Thurston
STIPULATION AND ORDER FOR PLAINTIFF TERRY SANDRES TO SUBMIT TO MENTAL EXAMINATION
Action Filed: July 24, 2009 Trial Date: August 30, 2011
STIPULATION AND ORDER FOR PLAINTIFF TERRY SANDRES TO SUBMIT TO MENTAL EXAMINATION
IT IS HEREBY STIPULATED AND AGREED by and between the parties hereto, by their respective counsel, that plaintiff Terry Sandres ("Plaintiff") will submit to a mental examination to be conducted by Dr. Francine B. Kulick ("Dr. Kulick") on a date and time mutually agreeable to all parties prior to the expert discovery cut-off date of April 1, 2011, at 1541 Ocean Ave., Suite 200, Santa Monica, California 90401. The purpose of the examination is to determine the existence, extent and nature of any damages to, or abnormality of, Plaintiff's mental and emotional condition and whether such damages and/or abnormality were allegedly caused by defendants Corrections Corporation of America and/or CCA of Tennessee, LLC (hereinafter collectively referred to as "Defendants").
IT IS FURTHER STIPULATED that the examination is authorized by Federal Rules of Civil Procedure ("FRCP") Rule 35(b)(6), in that Plaintiff has placed his mental condition in controversy in this action by alleging mental and emotional injury and distress of a lasting nature, and that good cause exists for the examination.
IT IS FURTHER STIPULATED that the nature, scope, conditions and manner of the examination are to be as follows:
1. No persons other than Plaintiff and Dr. Kulick (or anyone on Dr. Kulick's staff who is necessary for the examination) may be present.
2. Plaintiff and Dr. Kulick each have the right to audiotape the examination, but the examination shall not be videotaped. Dr. Kulick's office will not take any photographs, fingerprints, or other identification information from Plaintiff, including but not limited to driver's license, Social Security number, and home address.
3. Plaintiff may make an audio recording of the examination. Dr. Kulick and her staff will accommodate all reasonable requests to accomplish this recording including, but not limited to, taking any necessary breaks during the examination, taking a break if technical difficulties arise, making available electrical outlets, and all other reasonable accommodations to allow the effective recording of the mental examination.
4. Plaintiff shall not be required to fill out any patient information forms of any type whatsoever, including, but not limited to, (new patient) forms, insurance forms, identification forms, authorizations for records, arbitration form waivers and releases, and will not be asked to do so by Dr. Kulick or her staff.
5. The examination may only be conducted by Dr. Kulick. The examination will proceed on the following terms:
a. Said oral examination shall not delve into the following areas, which are protected by the California Constitutional right of privacy:
i. Dr. Kulick is permitted to inquire concerning the general health of family members and the existence of medical and mental conditions and whether treatment was received; however, Plaintiff is not to be questioned regarding the specifics of any treatment, names of treating physicians, and details of the medical or mental conditions as the right to privacy of third parties are an issue.
ii. Plaintiff is not to be questioned concerning his conversations with his counsel, or any other person affiliated with his counsel or his counsel's office, including but not limited to Appell Hilaire & Benardo LLP.
iii. Plaintiff is not to be questioned concerning his counsel's evaluation of his claims against Defendants, nor is Plaintiff to be questioned about any discussions Plaintiff has had with his counsel regarding such evaluations, as that is invasive of the attorney-client and attorney work-product privileges.
6. Plaintiff shall be permitted to take reasonable breaks during the examination process, including but not limited to taking a lunch break, rest breaks, and bathroom breaks.
7. Defendants are to immediately transmit a copy of this Stipulation to Dr. Kulick and promptly advise her that she must comply with the limitations imposed by the Stipulation. By proceeding with the examination, Dr. Kulick shall be deemed to have consented to the terms of this Stipulation, and she agrees to abide by its terms.
8. Counsel for Plaintiff shall be provided with a report from the examination, as well 3.
as notes taken during the exam, and records relied upon to reach an opinion or diagnosis, within ten (10) days of the examination by fax or hand-delivery. In keeping with the standard practices and procedures of her industry, Dr. Kulick will not provide counsel for either party, nor their representatives or retained experts, a copy of, or the actual, test questions from the Minnesota Multiphasic Personality Investory-2 ("MMPI-2"). However, upon request by Plaintiff's counsel, Dr. Kulick shall provide Plaintiff's answer sheet from the MMPI-2 as well as the accompanying interpretive report of Plaintiff's answers. In keeping with FRCP Rules 35(b)(1)-(5), Dr. Kulick's expert report to be provided to the examined party will "set out in detail the examiner's findings, including diagnoses, conclusions, and the results of any tests." The aforementioned documents in Paragraph 8 shall be provided to counsel for Plaintiff without the need for counsel for Plaintiff to request said documents.
9. Defendants and their respective counsel will use and/or disseminate documentation of the examination only for purposes of this litigation. The tests taken by Plaintiff as part of the mental examination, along with any notes and/or written reports and/or records maintained in any format, including electronic data, by Dr. Francine B. Kulick are confidential medical records relating to Plaintiff's mental health. These records are confidential but may be used by the parties as exhibits and in preparation for trial, in trial, and in other proceedings in this matter, but for no other purposes. Defense counsel may not give these records to anyone except members of their respective law firms, to the degree necessary to prepare copies or exhibits. Any information acquired or learned or any evaluation made in violation of this agreement will not be admissible in evidence for any purpose. The parties further agree that the Court may, upon motion at trial, strike, preclude, or limit any testimony of the examiner as appropriate, and Plaintiff is not waiving his right to such relief by agreeing to this examination. The parties reserve the right to seek whatever sanctions they may deem appropriate.
10. Disclosure, production and delivery of any reports regarding the examination shall be governed by FRCP Rule 35.
11. The examination shall consist of a clinical interview and the administration of the MMPI-2. The examination will be performed by Dr. Kulick, a clinical psychologist. Absent unforeseen circumstances, the examination shall be completed in one day.
12. Counsel for Plaintiff shall have the opportunity to depose Dr. Kulick, subject to her standard deposition fee of $525 per hour, within a reasonable time after being provided with her report and related documents as provided in Paragraph 8 above.
13. This agreement represents the entire and complete scope of the agreement between Plaintiff and Defendants for the mental examination of Plaintiff. All express or implied statements or representations are part of this agreement. This agreement shall be modified or changed only upon the express written statement of all parties to the agreement. Nothing herein shall be construed as a waiver of Plaintiff's privacy rights, medical privacy rights, doctor-patient privileges, or psychotherapist-patient privileges. Nothing herein shall be construed as a waiver of Plaintiff's right to challenge the admissibility or appropriateness of any opinion or testimony.
IT IS SO STIPULATED.
Dated: March 3, 2011 APPELL HILAIRE BERNARDO LLP
(As authorized on 3/3/11) By:
Barry M. Appell
Attorneys for Plaintiff Terry Sandres
Dated: March 3, 2011 GLEASON & FAVOROTE LLP
Kathy H. Gao Attorneys for Defendants Corrections Corporation of
America and CCA of Tennessee, LLC
IT IS SO ORDERED that plaintiff Terry Sandres submit to mental examination pursuant to the terms and conditions set forth and agreed upon by counsel for the parties to the abovecaptioned matter in the Stipulation for Plaintiff Terry Sandres to Submit to Mental Examination.
IT IS SO ORDERED.
OLIVER W. WANGER United States District Judge
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