333 F.R.D. 508 (C.D.Cal. 2019), CV 18-5829 DDP (SSx), Flack v. Nutribullet, L.L.C.

Docket Nº:CV 18-5829 DDP (SSx)
Citation:333 F.R.D. 508, 105 Fed.R.Serv.3d 589
Party Name:Elizabeth FLACK, Plaintiff, v. NUTRIBULLET, L.L.C., et al., Defendants.
Attorney:Aaron Lavine, Boris Treyzon, Douglas A. Rochen, Abir Cohen Treyzon Salo LLP, Encino, CA, Derek S. Chaiken, Merlin Law Group, Los Angeles, CA, for Plaintiff. Alice Chen Smith, David T. McCann, Davida M. Frieman, R. Bryan Martin, Walter M. Yoka, Yoka and Smith LLP, Kenneth Reed Chiate, Quinn Emanue...
Case Date:November 27, 2019
Court:United States District Courts, 9th Circuit, Central District of California

Page 508

333 F.R.D. 508 (C.D.Cal. 2019)

105 Fed.R.Serv.3d 589

Elizabeth FLACK, Plaintiff,


NUTRIBULLET, L.L.C., et al., Defendants.

No. CV 18-5829 DDP (SSx)

United States District Court, C.D. California

November 27, 2019

Page 509

[Copyrighted Material Omitted]

Page 510

[Copyrighted Material Omitted]

Page 511

Aaron Lavine, Boris Treyzon, Douglas A. Rochen, Abir Cohen Treyzon Salo LLP, Encino, CA, Derek S. Chaiken, Merlin Law Group, Los Angeles, CA, for Plaintiff.

Alice Chen Smith, David T. McCann, Davida M. Frieman, R. Bryan Martin, Walter M. Yoka, Yoka and Smith LLP, Kenneth Reed Chiate, Quinn Emanuel Urquhart Oliver and Hedges, Los Angeles, CA, for Defendants.





On November 19, 2019, Defendants filed an Ex Parte Notice and Motion to Compel the Physical and Mental Examinations of Plaintiff Pursuant to Rule 35, ("Motion"), supported by the Declaration of Davida M. Frieman ("Frieman Decl."). (Dkt. No. 97). The following day, Plaintiff filed an Opposition, ("Opp."), including the Declaration of Aaron Lavine ("Lavine Decl.").

On November 25, 2019, the Court held a telephonic hearing. For the reasons stated below and on the record at the hearing, Defendants’ Motion is GRANTED IN PART and DENIED IN PART. Plaintiff is ORDERED to appear for her physical and mental examinations pursuant to the terms set forth in this Order.



Plaintiff, a citizen and resident of New Zealand, alleges that she was injured when Defendants’ blender malfunctioned and "severely cut her hand." (First Amended Complaint ("FAC"), Dkt. No. 35 ¶ 13). According to Plaintiff, even though she sought emergency medical care immediately after the incident, her "lacerations were so severe that she continues to experience residual pain and symptoms and has nearly lost all use of three fingers." (Id. ¶ 14). Plaintiff asserts in her interrogatory responses that she is permanently disfigured and "still suffers immense, sporadic bouts of pain to her hands, [and] still suffers from significant functional impairment and structural deformities to her hands." (Motion at 7).

With respect to her emotional injuries, Plaintiff contends that she: feels an overwhelming [sense] of guilt since being injured by her Nutribullet blender. Plaintiff suffers from an overburdening unearned sense of shame because she is forced to rely on other’s [sic] help.

Plaintiff suffers with the pain of embarrassment she felt as she needed help to go to the toilet and showering while in the hospital immediately after the INCIDENT.

Page 512

Plaintiff’s mood shifted from social to secluded. She deals with crippling anxiety daily and is more nervous. For six months[ ] post-INCIDENT, Plaintiff was prescribed anti-depressants. Her mood was low and bleak.

... Plaintiff’s frustration permeates her every day ... Plaintiff’s confidence and self-esteem are a fraction of what they once were.

(Id. at 7-8). Plaintiff also states that she "continues to suffer anxiety and depression daily from the loss of full use of both of her hands." (Id. at 8).

In the FAC, Plaintiff claims that as a result of Defendants’ wrongful acts, she: suffered, and will continue to suffer, personal injuries, including but not limited to, medical bills, future medical care, loss of mobility, loss of use and feeling in her hand and fingers, loss of earnings, loss of earning capacity, severe emotional distress and anxiety, general damages and other economic and non-economic damages in an amount to be proven at trial.

(FAC ¶¶ 29, 35, 42, 50, 59). The FAC reflects that Plaintiff’s general damages include, but are not limited to, "damages for pain, suffering, anguish, discomfort, severe emotional distress, disgust, terror, fright, anger, anxiety, worry, nervousness, shock, anguish and mental suffering, loss of enjoyment of life, loss of ability to engage in normal and customary activities, loss of comfort, society, care and companionship." (Id. at 26 ¶ 2). At the hearing, counsel informed the Court that Plaintiff is seeking damages "in the eight-figure" range.



Plaintiff will be traveling from New Zealand to Los Angeles for her deposition on December 11, 2019. (Motion at 4). Plaintiff has informed Defendants that she will be available on December 9 and 10 for her physical and mental examinations. (See Frieman Decl., Exh. 1 at 1-2). Accordingly, Defendants have arranged for her physical examination to be taken on December 9, 2019 by Dr. Charles Lane at his office in Los Angeles. (Motion at 5). Defendants have also arranged for her mental examination to be taken on December 10, 2019 by Dr. Manuel St. Martin at his Los Angeles office. (Id. ).

Prior to the hearing, Defendants consented to Plaintiff’s request that the mental examination be audio recorded, but insisted that no third parties be permitted to observe the physical or mental examination. (Id. at 5-6). Plaintiff does not dispute that Defendants have a right to take the requested physical and mental examinations pursuant to Federal Rule of Civil Procedure 35. (Opp. at 2). However, Plaintiff insists that the scope of the examinations must be restricted and that a third-party observer, specifically, a nurse "or other representative of Plaintiff," be permitted to attend the physical examination. (Id. at 2-4, 6).



This matter was presented to the Court in the form of an ex parte application instead of a Joint Stipulation as required by C.D. Cal. Local Rule 37-2. Ex parte applications are solely for extraordinary relief and should be used with discretion. See Mission Power Eng’g Co. v. Cont’l Cas. Co., 883 F.Supp. 488, 490 (C.D. Cal. 1995). Evidence must show that the moving party’s cause "will be irreparably prejudiced if the underlying motion is heard according to regular noticed motion procedures." Id. at 492. Moreover, the moving party must establish that it is "without fault in creating the crisis that requires ex parte relief, or that the crisis occurred as a result of excusable neglect." Id.

On October 8, 2019, Plaintiff confirmed that she would be available for her physical and mental examinations on December 9 and 10. (Frieman Decl. Exh. 1 at 1-2). Defendants represent that following that confirmation, "[l]ocating appropriate, qualified doctors that were available to perform an IME with Plaintiff’s limited ... availability took time." (Id. ¶ 15). Defendants further state that they did not anticipate any issues

Page 513

in obtaining a stipulation from Plaintiff for these examinations once the physicians were secured. However, on November 13, 2019, Defendants sent an email to Plaintiff’s counsel requesting that the Parties formally stipulate that Plaintiff would attend the examinations. Plaintiff’s counsel did not respond to the November 13 email. (Motion at 2). In light of the cost of Plaintiff’s travel from New Zealand to Los Angeles, the urgency of the Parties’ dispute, Plaintiff’s delay in agreeing to a deposition (and related examination) dates, and the absence of a response to Defendants’ November 13, 2019 email,1 the Court concludes that this matter is appropriately heard on an ex parte basis. Accordingly, the Court will consider Defendants’ Motion as presented.



Federal Rule of Civil Procedure 35 provides that the court "may order a party whose mental or physical condition ... is in controversy to submit to a physical or mental examination by a suitably licensed or certified examiner." Fed.R.Civ.P. 35(a)(1). "The order: (A) may be made only on motion for good cause and on notice to all parties and the person to be examined; and (B) must specify the time, place, manner, conditions, and scope of the examination, as well as the person or persons who will perform it." Fed.R.Civ.P. 35(a)(2). Unlike reports for testifying experts under Rule 26(a)(2), which must be served on the opposing party at the time of the expert disclosure, Rule 35 reports are not required to be produced by the moving party unless requested by the opposing party or the person examined. Fed.R.Civ.P. 35(b)(1). The examiner’s report must "set out in detail the examiner’s findings, including diagnoses, conclusions, and the results of any tests." Fed.R.Civ.P. 35(b)(2).

In Schlagenhauf v. Holder, 379 U.S. 104, 85 S.Ct. 234, 13 L.Ed.2d 152 (1964), the Supreme Court established standards for district courts deciding whether to compel a Rule 35 examination. The Schlagenhauf Court explained that Rule 35’s "in controversy" and "good cause" requirements are not met by "mere conclusory allegations of the pleadings -- nor by mere relevance to the case -- but require an affirmative showing by the movant that each condition as to which the examination is sought is really and genuinely in controversy and that good cause exists for ordering each particular examination." Id. at 118, 85 S.Ct. 234; see also Ragge v. MCA/Universal Studios, 165 F.R.D. 605, 608 (C.D. Cal. 1995) (citing Schlagenhauf ).

However, the Schlagenhauf Court further explained that "there are situations where the pleadings alone are sufficient to meet these requirements." Schlagenhauf, 379 U.S. at 119, 85 S.Ct. 234. For example, a plaintiff "who asserts mental or physical injury ... places that mental or physical injury clearly in controversy and provides the defendant with good cause for an examination to determine the existence and extent of such asserted...

To continue reading