Sims v. Winnebago Industries, Inc. ( 2024 )

1 Law Offices of MATHENY SEARS LINKERT & JAIME LLP 2 MATTHEW C. JAIME (SBN 140340) 3638 American River Drive 3 Sacramento, California 95864 Telephone: (916) 978-3434 4 Facsimile: (916) 978-3430 mjaime@mathenysears.com 5 Attorneys for Defendant, WINNEBAGO 6 INDUSTRIES, INC. 7 8 UNITED STATES DISTRICT COURT FOR THE 9 EASTERN DISTRICT OF CALIFORNIA – FRESNO DIVISION 10 11 12 ALFRED SIMS, Case No. 2:23-cv-00686-JAM-JDP 13 STIPULATION AND ORDER FOR Plaintiff, PHYSICAL EXAMINATION OF 14 v. PLAINTIFF ALFRED SIMS 15 WINNEBAGO INDUSTRIES, INC.; and Complaint filed: March 1, 2023 16 DOES 1 to 10, inclusive, Trial date: August 4, 2025 17 Defendant. Judge: Hon. John A. Mendez Ctrm: 6 18 19 Plaintiff ALFRED SIMS (“Plaintiff”) and Defendant WINNEBAGO INDUSTRIES, INC. 20 (“Defendant”) agree and stipulate that Plaintiff shall submit to a physical examination pursuant to 21 Federal Rules of Civil Procedure, Rule 35: 22 1. A controversy exists regarding the physical condition of Plaintiff and good cause 23 exists for a physical examination of Plaintiff. 24 2. The examination will be conducted for the purpose of determining the nature and 25 extent of Plaintiff’s physical injuries. 26 3. The scope of the examination will be the physical injuries at issue in litigation, 27 including, but not limited to, Plaintiff’s left ankle. 28 1 4. Plaintiff will not submit to any painful, protracted, or intrusive studies or tests and 2 specifically refuses to submit to any additional x-rays, EEG, EMG, blood tests, urinalysis, or 3 photographs, nor will Plaintiff disrobe for the examination. 4 5. Plaintiff will not discuss how the accident, which gives rise to this litigation, 5 occurred, other than to describe it in general terms. If the examiner requires further information 6 as to the mechanics of the accident, defendants’ counsel can provide a copy of the incident accident 7 or a transcript of plaintiff’s deposition to the doctor. 8 6. Plaintiff will answer any reasonable relevant medical history questions posed by 9 the examiner. Plaintiff will not provide a written medical history. Should such a written medical 10 history be required, defendant’s counsel may provide either copies of plaintiff’s deposition and/or 11 medical records. 12 7. Other than questions seeking reasonable and relevant medical history, all other 13 medical history questions will not be answered. A lifetime medical history is not authorized. 14 Plaintiff will answer all questions relating to the injuries sustained in the accident at issue in this 15 lawsuit, but reserves Plaintiff’s right to privacy as to unrelated medical issues and history. See 16 Britt v. Superior Court (1978) 20 Cal.3d 844. 17 8. Plaintiff may not be compelled to create any items of documentary evidence and 18 will not fill out any charts, new patient records, forms, or histories that may be requested or 19 provided by the defense medical examiner. To do so would violate plaintiff’s right not to create 20 items of demonstrative evidence for defendant’s use. 21 9. Plaintiff will not assume financial responsibility for any of the medical billings 22 arising as a result of this defense medical examination nor will plaintiff execute an assignment of 23 benefits form. 24 10. The physical examination will be conducted by Patrick J. McGahan, MD, a licensed 25 physician with a specialty in Orthopedic Surgery, an independent medical exam physician retained 26 by Defendant. Attached to this stipulation as Exhibit A is a true and correct copy of Dr. 27 McGahan’s Curriculum Vitae setting forth his qualifications and background. 28 / / / 1 11. The date and time for the physical examination will be September 26, 2024, at 2 8:00 a.m. 3 12. The location for the examination is: 450 Sutter Street, Ste. 400, San Francisco, 4 California. 5 13. Dr. McGahan’s contact information is: Advanced Orthopedics & Sports Medicine, 6 450 Sutter Street, Suite 400, San Francisco, CA 94108 (415) 900-3000. 7 14. It is further stipulated that Defendant will be responsible for the fees associated 8 with this examination. 9 15. However, Plaintiff agrees to reasonably comply with Dr. McGahan’s cancellation 10 policy and must advise Defendant if he is unable to attend the examination at least two (2) business 11 days before the examination. 12 Dated: September 4, 2024 MATHENY SEARS LINKERT & JAIME LLP 13 14 By: /s/ Matthew C. Jaime MATTHEW C. JAIME, 15 Attorneys for Defendant WINNEBAGO INDUSTRIES, INC. 16 17 Dated: September 4, 2024 CASPER MEADOWS SCHWARTZ & COOK 18 19 By: /s/ Adam Carlson ADAM CARLSON, 20 Attorneys for Plaintiff ALFRED SIMS 21 / / / 22 / / 23 / / / 24 / / / 25 / / / 26 / / / 27 / / / 28 1 ORDER 2 Pursuant to Plaintiff and Defendant’s STIPULATION RE: PHYSICAL EXAMINATION 3 | OF PLAINTIFF ALFRED SIMS and for good cause shown, the above STIPULATION AND 4 | ORDER FOR PHYSICAL EXAMINATION OF PLAINTIFF ALFRED SIMS is accepted, 5 || adopted, and made the Order of the Court. 6 7 IT IS SO ORDERED. 8 ( — Dated: September 10, 2024 9 JEREMY D. PETERSON 10 UNITED STATES MAGISTRATE JUDGE 12 «13 15 16 17 18 19 20 21 22 23 24 25 26 27 28