1 RYAN L. DENNETT, ESQ. 2 | Nevada Bar No. 005617 rdennett @ dennettwinspear.com 3 | BRENT D. QUIST, ESQ. Nevada Bar No. 009157 4 | [email protected] DENNETT WINSPEAR, LLP 5 | 3301 N. Buffalo Drive, Suite 195 Las Vegas, Nevada 89129 6 | Telephone: (702) 839-1100 Facsimile: (702) 839-1113 7 || Co-counsel for Defendants, Jon Shields and Misty Shields 8 UNITED STATES DISTRICT COURT 9 DISTRICT OF NEVADA 10 4 GLENDA MARIE PRIESTLEY, an individual, 5 42 Plaintiff, Case No: 2:21-CV-01657-JCM-DJA < vs. 13 4 JON SHIELDS, an individual; MISTY SHIELDS, 14 | an individual; DOES 1 through 20, inclusive, and ROE BUSINESS ENTITIES 1 through 20, 15 inclusive, Defendants. 47 STIPULATION AND ORDER TO ALLOW DEFENDANT TO CONDUCT A FED.R.CIV.P. 35 < 18 EXAM OF PLAINTIFF GLENDA MARIE PRIESTLEY 19 Plaintiff GLENDA MARIE PRIESTLEY, by and through his counsel of record, 20 | BERTOLDO BAKER CARTER & SMITH, and JON and MISTY SHIELDS, by and through their 21 || counsel of record, DENNETT WINSPEAR, LLP, hereby stipulate to the NRCP 35(a) examination 22 | of Plaintiff GLENDA MARIE PRIESTLEY. 23 1. The Rule 35 examination of Plaintiff is currently scheduled to take place with Dr. 24 || John Herr on [date] at [time]. 25]... 26]... 27 1... 28

1 2. All paperwork to be completed by Plaintiff shall be provided to Plaintiff's counsel 2 | at least ten (10) days prior to the examination for Plaintiff's counsel to review and for Plaintiff to 3 | complete. Plaintiff will bring the completed paperwork to the examination, which will help to 4 | ensure timely completion of the examination. 5 3. Defendants’ representatives shall be responsible for gathering films unless 6 | already in Plaintiff's possession. 7 4. Plaintiff may audio record the examination. Dr. Herr may also audio record the 8 | examination. Plaintiff's audio recording and Dr. Herr’s audio recording shall be disclosed within 9 | fourteen (14) days of the examination. 10 5. Defense shall not have anyone other than the physician and his staff attend the 11 || examination. i 12 6. Plaintiff may have an observer attend the examination. Plaintiff shall identify to the 13 || defense, within ten (10) days prior to the examination, the name of the observer and relationship 14 | to the Plaintiff. The observer will not be Plaintiff's attorney or an employee of Plaintiff's attorney’s 15 | office. ° 16 7. The observer may not interfere or obstruct the examination in any way. If Dr. Herr 17 || believes the observer is interfering or obstructing with the examination in any way, Dr. Herr may 18 | pause the examination and contact defense counsel. Counsel will meet and confer regarding the 19 issue. If, after the observer is informed not to interfere or obstruct with the examination, the 20 | observer continues to interfere or obstruct the examination then Dr. Herr may terminate the 21 examination. If that occurs, Defendants shall have the right to have Dr. Herr resume the Rule 35 22 | exam at another date/time, with another observer present. Plaintiff will be responsible to pay Dr. 23 | Herr’s costs/expense associated with this second, continued examination. 24 8. Video-recording of the examination will not be permitted. 25 | ... 26 | ... 27 | ... 28 | ...

1 9. It is expected that the exam will start within thirty (80) minutes of the scheduled 2 | starting time and Plaintiff's time in the physician’s office will not exceed ninety (90) minutes from 3 | the scheduled start time. If either of these time frames are exceeded, Plaintiff will call his counsel 4 | and Plaintiff's counsel will contact Defendants’ counsel and attempt to rectify the situation. If the 5 | parties are unable to rectify the situation at that time, the parties will work together to reschedule 6 | the Rule 35 examination at a mutually convenient time for Plaintiff and the doctor. Plaintiff will not 7 | be responsible for any costs which may be incurred if the Rule 35 Exam must be rescheduled 8 || due to the time limits set forth herein being exceeded. 9 10. If Plaintiff fails to appear for the Rule 35 Exam, Plaintiff will not be required to pay 10 | the costs associated with Plaintiff's failure to appear if the parties determine the failure to appear 11 || was due to an emergency. If the parties are unable to agree as to whether the reason for i 12 | Plaintiff's failure to attend the exam constituted an emergency, the parties agree to submit the 13 | issue to the Magistrate Judge. Plaintiff will not be responsible to pay the costs associated with 14 | his failure to appear at the exam if the Magistrate Judge determines an emergency situation was 15 | the cause for Plaintiff's failure to appear at the exam. Otherwise, Plaintiff will be required to pay ° 16 | the costs associated with his failure to appear at the exam. 17 11. Dr. Herr will not engage in contact with Plaintiff's witnesses including treating 18 | health care providers and retained experts. 19 12. The physical examination shall be limited to the parts of the body which bears a 20 | reasonable relationship to the body parts that Plaintiff has placed in controversy. 21 13. No physically painful or intrusive procedures may be utilized during the 22 || examination, nor shall Plaintiff be required to disrobe other than what is absolutely necessary to 23 | assist the examiner. 24 14. No x-rays, radiographs or other diagnostic tests, intrusive or painful procedures, 25 | or treatment may be obtained during the examination without Plaintiff's counsel’s prior approval. 26 | ... 27 | ... 28 | ...

1 15. Defendants will produce a copy of Dr. Herr’s Rule 35 exam report by the deadline 2 | for initial expert disclosures established by the modified Scheduling Order. 3 | DATED this 7th day of February, 2023. DATED this 7th day of February, 2023 4 5 DENNETT WINSPEAR, LLP BERTOLDO BAKER CARTER & SMITH 6 7 By /s/ Ryan L. Dennett By__/s/ Paul R.M. Cullen RYAN L. DENNETT, ESQ. PAUL R. M. CULLEN, ESQ. 8 Nevada Bar No. 005617 Nevada Bar No. 012355 BRENT D. QUIST, ESQ. 7408 w. Sahara Avenue 9 Nevada Bar No. 009157 Las Vegas, Nevada 89117 3301 N. Buffalo Drive, Suite 195 Attorneys for Plaintiff 10 Las Vegas, Nevada 89129 Attorneys for Defendants 11 3 4 12 ORDER

13 | The Court denies the stipulation for a Rule 35 exam without prejudice because it contains a few < deficiencies. 14 15 || First, the parties refer to the Nevada Rules of Civil Procedure as the source for their Rule 35 examination. However, "[u]nder the Erie doctrine, a federal court sitting in diversity must apply 16 | the substantive law of the forum state and federal procedural law." Freteluco v. Smith's Food and 17 Drug Centers, Inc.,

, 202 (D. Nev. June 29, 2020) (applying Erie R.R. Co. v. Tompkins,

(1938) to determine that Federal Rule of Civil Procedure 35 governs a 18 | court-ordered exam). 19 | Second, under Federal Rule of Civil Procedure 35(a)(2)(B), an order setting an exam "must specify 20 the time... [and] place ...of the examination." But those details are missing here. 21 | ITIS THEREFORE ORDERED that the parties’ stipulation (ECF No. 25) is DENIED WITHOUT PREJUDICE. 22 > ows

DANIEL J. ALBREGTS 24 UNITED STATES MAGISTRATE JUDGE 25 DATED: February 9, 2023 26 27 28

Theresa Amendola ee From: Paul Cullen <[email protected]> Sent: Tuesday, February 7, 2023 4:24 PM To: Theresa Amendola Cc: Brent Quist Subject: RE: Priestly v Shields

you. You have my permission to esign. Paul R.M. Cullen, Esq. BERTOLDO CARTER SMITH & CULLEN 7408 W. Sahara Avenue, Las Vegas, Nevada 89117 702.800.0000 | Fax 702.228.2333 email: [email protected]

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From: Theresa Amendola <[email protected]> Sent: Tuesday, February 7, 2023 4:00 PM Paul Cullen <[email protected]> Cc: Brent Quist <[email protected]> Subject: Priestly v Shields

Mr. Cullen:

| had to change the pagination on the Stip as the Judges in Fed Court don’t like their Orders on pages that have no other text. It is the same — just repaginated. | wanted you to know that so when | file it and it looks different, you will know why. you.

Theresa Umendela to Ryan L. Dennett, Esq. Jennifer Insley Micheri, Esq. Meredith L. Holmes, Esq. Direct dial: 702-932-2625 My normal working hours are Monday through Thursday from 8:30 a.m. to 5:00 p.m.

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