118 Kc Ex Parte R26 Relief - Declaration

Case 1:07-cv-00026-OWW-TAG

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Mark A. Wasser, CA SB #060160 LAW OFFICES OF MARK A. WASSER 400 Capitol Mall, Suite 1100 Sacramento, CA 95814 6) qqq-OqlJU 444-6405

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5 ) ) ) ) ) ) ) ) ) ) ) ) Date Action Filed: January 6, 2007 ) Trial Date: December 3, 2008 ) )

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I, Mark A. Wasser, declare as follows:

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1. I am counsel of record for Defendants and I am familiar with this proceeding.

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facts in this declaration are true and correct of my own personal knowledge and I can testify

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competently to them if called as a witness.

28 -1DECLARATION OF MARK A. WASSER IN SUPPORT OF DEFENDANTS' EX PARTE APPLICATION FOR ORDER SHORTENING TIME RE MOTION FOR PERMISSION TO SERVE EXPERT REPORTS AFTER MAY 5,2008

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2. The original scheduling order (filed May 31,2007) was modified by stipulation of Court on November 20, 2007 ("Scheduling Order"). A true and correct

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wrtne:ss(~s

are to

Clls,ClOsea on

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a

names,

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Olson-Buchanan can cornpJ,ete

to

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focused on Defendants' affirmative defenses and Plaintiff has done little to develop any evidence

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to support the allegations in his complaint.

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7. Defendants intend to schedule the examination of Plaintiff, either by noticed motion

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under Rule 35 or stipulation, before the Supplemental Disclosure on June 4, 2008. The reports

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should be available shortly after the examinations.

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8. It is not clear that the reports of examining physicians are subject to the disclosure requirements of Rule 26(a)(2)(B). Although the Ninth Circuit does not appear to have addressed

28 -2DECLARATION OF MARK A. WASSER IN SUPPORT OF DEFENDANTS' EX PARTE APPLICATION FOR ORDER SHORTENING TIME RE MOTION FOR PERMISSION TO SERVE EXPERT REPORTS AFTER MAY 5,2008

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this issue, this District has. In Minnard v. Rotech Healthcare Inc., CIY. NO. S-06-1460 GEB LJLd'UU

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-r /."

,.U

Honorable Gregory

CaL Jan. 15, 2008),

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Pursuant to ex

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permiSSJlOn to serve

expert reports after May 5, 2008 is attached hereto as Exhibit B.

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Wasser

13. A copy of

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14. Defendants respectfully suggest the following filing, service and hearing dates for the motion:

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Filing of Motion:

May 5, 2008.

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Plaintiff's Opposition, if any:

May 12,2008.

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Defendants' Reply:

WAIVED.

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Hearing on Motion:

28 -3DECLARATION OF MARK A WASSER IN SUPPORT OF DEFENDANTS' EX PARTE APPLICATION FOR ORDER SHORTENING TIME RE MOTION FOR PERMISSION TO SERVE EXPERT REPORTS AFTER MAY 5,2008

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15. Pursuant to Local Rule 6-144(b), one prior continuance was granted upon stipulation above.

Defendants do not propose to modify

were

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EXHIBIT A

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Mark A. Wasser CA SB #060160 LAW OFFICES OF MARK A. WASSER 11 4

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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Page 6 of 14 3

DAVID F. JADWIN, D.O.

Case No.: 1:07-cv-00026 OWW TAG

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STIPULATION TO CONTINUE TRIAL AND PRE-TRIAL DATES AND ORDER

Plaintiff, 25 vs.

Complaint Filed: January 5, 2007 Trial Date: August 26, 2008

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COUNTY OF KERN, et aI., 27

Defendants. Note: Dates on last page have been changed 28 1 1 - - - - - - - - - - - - - - - - 1 1 STIPULATION TO CONTINUE TRIAL AND PRE-TRIAL DATES AND ORDER

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with pdfFactory trial version www.pdffactorv.com

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WHEREAS discovery is taking substantially longer than the parties anticipated because

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OFFICE OF EUGENE

Dated: November 15, 2007

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By:

lsi Eu ene D. Lee as authorized on 11/15/07 Eugene D. Lee Attorney for Plaintiff, David F. Jadwin, D.O.

26 27 28 2 STIPULATION TO CONTINUE TRIAL AND PRE-TRIAL DATES AND ORDER

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Filed 11/20/2007

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ORDER

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n"rties

n:-l\i'lflV

stirlUlated as her,elmlbo1/e set

cause aDt)ear'im;: thel:elo r;

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28 3 STIPULATION TO CONTINUE TRIAL AND PRE-TRIAL DATES A"t\TD ORDER

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EXHIBITB

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Mark A. Wasser CA SB #060160 LAW OFFICES OF MARK A. WASSER 400 Capitol Mall, Suite 1100 Sacramento, CA 95814 6) 444-6400 444-6405

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January 6, 2007 Trial Date: December 3, 2008

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TO PLAINTIFF AND HIS ATTORNEY OF RECORD:

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PLEASE TAKE NOTICE that, on

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, 2008 at

a.m., or as soon

thereafter as the matter can be heard, in the courtroom of the above-referenced Court at , California, Defendants will, and hereby do, move the Court for

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an order granting them partial relief from the Scheduling Order. Specifically, Defendants

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request that the Court allow Defendants to serve the expert reports of the physicians who will -1-

DEFENDANTS' NOTICE OF MOTION AND MOTION FOR PERMISSION TO SERVE EXPERT REPORTS AFTER MAY 5, 2008

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perform the Rule 35 examination

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Defendants request that they be permitted to serve the report of Dr. Olson-Buchanan on or

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Plaintiff after May 5, as soon as they can be prepared.

Mark A. Wasser Attorney for Defendants, County of Kern, et al.

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DEFENDANTS' NOTICE OF MOTION AND MOTION FOR PERMISSION TO SERVE EXPERT REPORTS AFTER MAY 5, 2008

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Mark A. Wasser CA SB #060160 LAW OFFICES OF MARK A. WASSER 400 Capitol Mall, Suite 1100 Sacramento, CA 95814 6) "+44-0"+1.1I J 444-6405

) ) ) ) ) ) ) ) )

) Date Action Filed: January 6, 2007 ) Trial Date: December 3,2008 )

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I, Mark A. Wasser, declare as follows:

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1.

I am counsel of record for Defendants and I am familiar with this proceeding.

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The facts in this declaration are true and correct of my own personal knowledge and I can testify

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competently to them if called as a witness.

28 -1DECLARATION OF MARK A. WASSER IN SUPPORT OF DEFENDANTS' MOTION FOR PERMISSION TO SERVE EXPERT REPORTS AFTER MAY 5, 2008

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Defendants have retained three expert witnesses and have disclosed their names,

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addresses, qualifications and hourly rates to Plaintiff, however, Defendants need additional time

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to nre:naJre

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35 eXamlIJlatH)ll

serve

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Hollows discussed the interplay between Rule 26 and Rule 35 and, on the facts in Minnard, ruled

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that the Defendant could rely on information "including a Rule 35 examination, taken after

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designation and report issuance." Minnard, 2008 U.S. Dist. LEXIS 6149, at *11. Other Districts

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have split on the issue. See, e.g., Waggoner v. Ohio Central Railroad, Inc. 242 F.R.D. 413, 414

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(S.D. OH, 2007); Furlong v. Circle Line Statute ofLiberty Ferry, Inc., 902 F.Supp. 65

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(S.D.N.Y., 1995); and Shumaker v. West, 196 F.R.D. 454 (S.D.W.VA, 2000).

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5.

Thus, the reports of Dr. Burchuk and Dr. Sarkasian appear to be exempt from the

Rule 26 disclosure obligation. Defendants included these two physicians in their list of expert -2-

DECLARATION OF MARK A. WASSER IN SUPPORT OF DEFENDANTS' MOTION FOR PERMISSION TO SERVE EXPERT REPORTS AFTER MAY 5, 2008

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witnesses out of a desire for full disclosure even though the Rule 35 exams have not yet

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occurred.

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6.

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DECLARAnON OF MARK A. WASSER IN SUPPORT OF DEFENDANTS' MOTION FOR PERMISSION TO SERVE EXPERT REPORTS AFTER MAY 5, 2008