1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 CHRISTINA HYDE, et al., No. 2:20-CV-0577-DJC-DMC 12 Plaintiffs, 13 v. ORDER 14 COUNTY OF SUTTER, et al., 15 Defendants. 16 17 Plaintiffs, who are proceeding with retained counsel, bring this civil action. 18 Pending before the Court are: (1) Defendants’ motion to compel minor Plaintiff H.S. to submit to 19 an independent mental examination (IME), ECF No. 175; and (2) Defendants’ motion to compel 20 minor Plaintiff H.S. to submit to a deposition, ECF No. 176. The parties have filed joint 21 statements regarding both motions, ECF Nos. 177 and 178. Plaintiffs’ counsel has also filed 22 separate declarations with exhibits, ECF Nos. 179 and 180. The parties appeared before the 23 undersigned on January 10, 2024, for a hearing on both pending motions. Emily Rose Johns, 24 Esq., Hanna Chandoo, Esq., Temitayo Peters, Esq., Mark Berry, Esq., Kathleen Rhoads, Esq., and 25 Wendy Motooka, Esq., present. After considering the arguments of counsel, the matters were 26 submitted. 27 / / / 28 / / / 1 I. BACKGROUND 2 This is a civil rights action arising from the in-custody death of Linda Miller, the 3 mother of minor Plaintiff H.S., at the Sutter County Jail on April 20, 2019. Plaintiff H.S. seeks, 4 among other things, damages for “extreme emotional distress.” ECF No. 104 (third amended 5 complaint). Following meet and confer efforts and an informal discovery conference, the parties 6 reached an agreement regarding certain limitations to be placed on a deposition of minor Plaintiff 7 H.S. See ECF No. 160-1, pg. 9. Thereafter, the parties agreed that minor Plaintiff H.S. would 8 appear for a deposition on October 4, 2023. See id. On October 3, 2023, however, at 8:57 p.m., 9 Plaintiffs’ counsel notified defense counsel that minor Plaintiff H.S. would not appear at his 10 deposition set for the following day because Plaintiffs had decided that H.S. would not testify at 11 trial. See id. Further meet and confer efforts ensured but failed to result in any agreement 12 concerning H.S.’s deposition. 13 During the further meet and confer efforts, defense counsel learned on October 19, 14 2023, that Plaintiffs intended to introduce expert testimony to support H.S.’s emotional distress 15 claim. See ECF No. 160-2, pg. 9. 16 As to scheduling, the District Judge issued an order approving the parties’ 17 stipulation for modification of the case schedule. See ECF No. 145. Pursuant to this order, fact 18 discovery was set to be completed by September 9, 2023, expert discovery was set to be 19 completed by March 1, 2024, and the last day to hear dispositive motion was set for July 10, 20 2024. See id. On September 14, 2023, the District Judge extended the time to conduct fact 21 discovery to October 9, 2023, for the limited purpose of completing certain depositions, including 22 the deposition of minor Plaintiff H.S. See ECF No. 149. No other deadlines were changed. See 23 id. 24 On November 2, 2023, Defendants filed a motion to re-open fact discovery and to 25 continue the deadline for completion of expert discovery. See ECF No. 160. The motion was 26 heard by the District Judge on November 30, 2023. See ECF No. 173 (minutes). The District 27 Judge granted Defendants’ request to re-open non-expert fact discovery for the limited purpose of 28 Defendants seeking the deposition and/or IME of H.S. See id. The District Judge’s ruling does 1 not mention any extension of the deadline to complete expert discovery, which remains March 1, 2 2024. See id. Defendants were directed to file any motions to compel H.S.’ deposition and/or 3 IME within 10 days. See id. The currently pending motions, which were timely filed, followed. 4 The same day the currently pending motions were heard at oral argument – 5 January 10, 2024 – the parties filed a stipulation to refer this matter to a judicially-supervised 6 settlement conference. See ECF No. 183. On January 16, 2024, the District Judge approved the 7 parties’ stipulation and set a settlement conference before Magistrate Judge Carolyn K. Delaney 8 on March 1, 2024. See ECF No. 185. 9 10 II. DISCUSSION 11 As discussed further below, the Court finds that Defendants are entitled to both an 12 IME and deposition of minor Plaintiff H.S. Defendants’ motions will be granted. The parties 13 will also be directed to meet and confer regarding agreed modifications of the schedule for this 14 case to allow for the discover being permitted or, if no agreement can be reached, submission of 15 separate statements concerning scheduling. 16 A. IME 17 The Court may order an IME under Federal Rule of Civil Procedure 35 where a 18 party’s mental or physical condition is in controversy. See Fed. R. Civ. P. 35(a)(1). The purpose 19 of an IME is to equal the footing of the parties to evaluate a party’s mental or physical state. See 20 Tomlin v Holecek, 150 F.R.D. 628, 233 (D. Minn. 1993). Defendants assert in their motion to 21 compel that they first learned in October 2023 that Plaintiffs intended to introduce expert 22 testimony to support H.S.’s mental damages claims. See ECF No. 177, pg. 10. Plaintiffs argue 23 that Defendants’ request for an order compelling Plaintiff H.S. to attend an IME is untimely 24 because an IME cannot take place after the deadline for initial expert disclosures, which in this 25 case was November 13, 2023. See id. at 12-13 (citing Minnard v. Rotech Healthcare Inc., 2008 26 WL 150502, at *2 (E.D. Cal. 2008)). Plaintiffs conclude that Defendants have failed to act with 27 due diligence in seeking an IME of H.S. because the deadline to disclose expert witnesses has 28 passed. See id. at 13 (citing Montemayor v. City of Los Angeles, 2022 WL 1688522, at *2 (C.D. 1 Cal. 2022). Plaintiffs also contend that Defendants failed to meet and confer regarding the IME 2 dispute. See id. 3 The operative third amended complaint in this case was filed on July 22, 2022. 4 See ECF No. 104. In this pleading, Plaintiff clearly allege that Plaintiff H.S. is seeking damages 5 for, among other things, emotional pain and emotional distress, including anxiety and trauma. 6 See id. at 62. Thus, Defendants have been on notice since July 2022 of the nature of H.S.’s 7 claimed damages but failed to seek an IME until late 2023 on the eve of the expert disclosure 8 deadline in November 2023. However, at the hearing, it was revealed that Plaintiffs had 9 previously obtained an IME of Plaintiff H.S. This fact was not made clear in the briefs. Given 10 that Plaintiffs and their experts have the advantage of IME results, the Court cannot in fairness 11 deny Defendants access to similar evaluation by their experts. 12 Defendants’ motion to compel Plaintiff H.S. to submit to an IME will be granted subject 13 to the conditions agreed to by the parties and outlined below. 14 B. Deposition 15 The issue of H.S.’s deposition was the subject of informal discovery conferences 16 with the parties in August 2023. The parties entered into a stipulation on September 13, 2023, to 17 limit the scope of any deposition of H.S. “to his memories of his mother, what he misses about 18 his mother, and the emotional impact of his mother’s absence on his life.” See ECF No. 148, pg. 19 4. The stipulation provided that, if called at trial, H.S.’s testimony would be limited to these 20 topics. See id. The stipulation also provided that H.S.’s deposition “will be strictly limited to 21 these same topics.” Id. 22 Plaintiffs now argue that there is no longer any need to take H.S.’s deposition 23 because Plaintiffs have now decided not to call H.S. as a trial witness and that the Court’s 24 tentative ruling should stand. See ECF No. 178. Defendants contend that, even though Plaintiffs 25 will not be calling H.S. as a trial witness, they are nonetheless entitled to depose H.S. to ascertain 26 the nature and extent of the claimed emotional damages. See id. 27 Defendants’ motion to compel will be granted consistent with the parties’ 28 September 13, 2023, stipulation and other limitations agreed to by the parties during the course of 1 meet-and-confer efforts. The September 13, 2023, stipulation was entered into following the 2 informal discovery conferences in August 2023 and clearly contemplates that Plaintiff H.S. would 3 submit to a limited deposition. The stipulation also contemplates that, at the time it was entered 4 into by counsel, the issue of whether Plaintiff H.S. would ultimately be called as a trial witness 5 remained unresolved. The stipulation will be enforced. 6 At the hearing on January 10, 2024, the parties represented that additional 7 limitations had been agreed to, as memorialized at ECF No. 160-2, pg. G-05 (Peters declaration, 8 Exhibit G, pg. 5). These additional limitations shall be incorporated into the Court’s order below. 9 10 III. CONCLUSION 11 Accordingly, IT IS HEREBY ORDERED as follows: 12 1. Defendants’ motion to compel Plaintiff H.S. to submit to an IME, ECF No. 13 175, is GRANTED. 14 2. Defendants’ motion to compel Plaintiff H.S. to attend a deposition, ECF 15 No. 176, is GRANTED. 16 3. As previously agreed by the parties, the IME permitted herein shall be 17 broken into two sessions of not more than three hours each, a non-attorney representative of H.S. 18 shall be permitted to be present, and the IME will be permitted to occur by remote means 19 consistent with a schedule allowed by H.S.’s school schedule. 20 4. As previously agreed by the parties, the deposition of H.S. shall be subject 21 to the following limitations:

22 a. Topics shall be limited to H.S.’s memories of his mother, what H.S. misses about his mother, and the emotional impact of his mother’s 23 absence on his life.

24 b. A limit of two hours of examination on the record, with a petition additional hour is needed and subject to Judge Cota’s approval at 25 the time of the deposition.

26 c. All non-questioning attorneys will have their cameras off.

27 d. A neutral third-party support person may be present if Ms. Hyde cannot be. 28 ] e. All persons with H.S. (counsel and support person) may have their cameras on. 2 f. One defense attorney will be permitted to aLlend the deposition in 3 person. 4 g. Neither party will show H.S. documents in which he is not depicted or of which he is not the author. 5 h. H.S.’s deposition will occur at a time that does not interfere with 6 school hours. 7 i. H.S.’s deposition will occur in a neutral location, such as a court reporter’s office. 8 9 5. To the extent the parties have not yet met and conferred regarding a 10 stipulated modification of the schedule for this case to allow for the limited extension of fact and 1] expert discover to allow for the discovery ordered herein, the parties are granted an extension of 12 time to seven (7) days from the date of this order to: (a) submit a stipulated request for 13 modification of the schedule; or (b) submit separate scheduling statements regarding modification 14 of the deadlines to complete fact and expert discovery. 15 16 Dated: January 31, 2024 17

DENNIS M. COTA

18 UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 24 25 26 27 28