118 kc ex parte r26 relief - declaration

8/14/2019 118 KC Ex Parte R26 Relief - Declaration

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Case 1:07-cv-00026-OWW-TAG Document 118 Filed 05/05/2008 Page 1 of 14

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345

202122232425262728

Mark A. Wasser, CA SB #060160LAW OFFICES OF MARK A. WASSER400 Capitol Mall, Suite 1100Sacramento, CA 958146) qqq-OqlJU444-6405

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

I, Mark A. Wasser, declare as follows:1. I am counsel of record for Defendants and I am familiar with this proceeding.

facts in this declaration are true and correct ofmy own personal knowledge and I can testifycompetently to them if called as a witness.

-1-DECLARATION OF MARK A. WASSER IN SUPPORT OFDEFENDANTS' EX PARTE APPLICATION FOR ORDER

SHORTENING TIME REMOTION FOR PERMISSION TO SERVE EXPERT REPORTS AFTER MAY 5,2008


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a

names,

5,

to

Clls,ClOsea onw r t n e : s s ( ~ s are to

Olson-Buchanan can cornpJ,ete

2345

1 2. The original scheduling order (filed May 31,2007) was modified by stipulation of2 Court on November 20, 2007 ("Scheduling Order"). A true and correct

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21 focused on Defendants' affirmative defenses and Plaintiff has done little to develop any evidence22 to support the allegations in his complaint.23 7. Defendants intend to schedule the examination of Plaintiff, either by noticed motion24 under Rule 35 or stipulation, before the Supplemental Disclosure on June 4, 2008. The reports25 should be available shortly after the examinations.26 8. It is not clear that the reports of examining physicians are subject to the disclosure27 requirements ofRule 26(a)(2)(B). Although the Ninth Circuit does not appear to have addressed28

-2-DECLARATION OF MARK A. WASSER IN SUPPORT OF DEFENDANTS' EX PARTE APPLICATION FORORDER

SHORTENINGTIME REMOTION FOR PERMISSION TO SERVE EXPERT REPORTS AFTER MAY 5,2008


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

ex

permiSSJlOn to serve

Honorable Gregory

Wasser

CaL Jan. 15, 2008),JLd'UU 6 - r / ." ,. U

Pursuant to

13. A copy of

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92021 expert reports after May 5, 2008 is attached hereto as Exhibit B.22 14. Defendants respectfully suggest the following filing, service and hearing dates for the23 motion:2425262728

Filing ofMotion:Plaintiff's Opposition, if any:Defendants' Reply:Hearing on Motion:

May 5, 2008.May 12,2008.WAIVED.

-3-DECLARATION OF MARK A WASSER IN SUPPORT OF DEFENDANTS' EX PARTE APPLICATION FOR ORDER

SHORTENING TIME REMOTION FOR PERMISSION TO SERVE EXPERT REPORTS AFTERMAY 5,2008


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EXHIBIT A


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Case 1:07-cv-00026-OWW-TAG Document 118 Filed 05/05/2008 Page 6 of 14 1/20/2007 31 Mark A. Wasser CA SB #060160LAW OFFICES OF MARK A. WASSER

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21 UNITED STATES DISTRICT COURT22 EASTERN DISTRICT OF CALIFORNIA23 DAVID F. JADWIN, D.O.

COUNTY OF KERN, et aI.,

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

Note: Dates on last page have been changed

STIPULATION TO CONTINUE TRIALAND PRE-TRIAL DATES AND ORDERComplaint Filed: January 5, 2007Trial Date: August 26, 2008

Plaintiff,

Defendants.

vs.

2425262728 11- - - - - - - - - - - - - - - -1

1STIPULATION TO CONTINUE TRIAL AND PRE-TRIAL DATES AND ORDER

PDF with pdfFactory trial version www.pdffactorv.com


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Case 1:07-cv-00026-OWW-TAG Document 118 Filed 05/05/2008 Page 7 of 141 2 31 WHEREAS discovery is taking substantially longer than the parties anticipated because

2122 Dated: November 15, 20072324

25262728

OFFICE OF EUGENE

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

2STIPULATION TO CONTINUE TRIAL AND PRE-TRIAL DATES AND ORDER

PDF with pdfFactory trial version www.pdffactory.com


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Case 1:07-cv-00026-OWW-TAG Document 118 Filed 05/05/2008 Page 8 of 14ORDER

iled 11/20/2007 3 32

2122232425262728

n"rties n:-l \ i ' l flV stirlUlated as her,elmlbo1/e set

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cause aDt)ear'im;: thel:eloir;

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

PDF with pdfFactory trial version www.pdffactory.com


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EXHIBITB


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1 Mark A. Wasser CA SB #060160LAW OFFICES OF MARK A. WASSER2 400 Capitol Mall, Suite 1100Sacramento, CA 958143 6) 444-6400444-64055

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January 6, 2007Trial Date: December 3, 2008212223 TO PLAINTIFF AND HIS ATTORNEY OF RECORD:24 PLEASE TAKE NOTICE that, on , 2008 at a.m., or as soon25 thereafter as the matter can be heard, in the courtroom of the above-referenced Court at26 , California, Defendants will, and hereby do, move the Court for27 an order granting them partial relief from the Scheduling Order. Specifically, Defendants28 request that the Court allow Defendants to serve the expert reports of the physicians who will

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DEFENDANTS' NOTICE OFMOTION AND MOTION FORPERMISSION TO SERVE EXPERT REPORTS AFTER MAY 5, 2008


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1 perform the Rule 35 examination Plaintiff a fter May 5, as soon as they can be prepared.2

2122232425262728

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

Mark A. WasserAttorney for Defendants, County ofKern, et al.

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DEFENDANTS' NOTICE OFMOTION AND MOTION FORPERMISSION TO SERVE EXPERT REPORTS AFTERMAY 5, 2008


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1 Mark A. Wasser CA SB #060160LAW OFFICES OF MARK A. WASSER2 400 Capitol Mall, Suite 1100Sacramento, CA 958143 6) "+44-0"+1.1I J444-6405

)))))))))) Date Action Filed: January 6, 200721 ) Trial Date: December 3,2008)

222324 I, Mark A. Wasser, declare as follows:25 1. I am counsel of record for Defendants and I am familiar with this proceeding.26 The facts in this declaration are true and correct ofmy own personal knowledge and I can testify27 competently to them if called as a witness.28

-1-DECLARATION OF MARK A. WASSER IN SUPPORT OF DEFENDANTS' MOTION

FOR PERMISSION TO SERVE EXPERT REPORTS AFTER MAY 5, 2008


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1 2. Defendants have retained three expert witnesses and have disclosed their names,2 addresses, qualifications and hourly rates to Plaintiff, however, Defendants need additional time3 to nre:naJre serve

7 35 eXamlIJlatH)ll8

21 Hollows discussed the interplay between Rule 26 and Rule 35 and, on the facts inMinnard, ruled22 that the Defendant could rely on information "including a Rule 35 examination, taken after23 designation and report issuance." Minnard, 2008 U.S. Dist. LEXIS 6149, at *11. Other Districts24 have split on the issue. See, e.g., Waggoner v. Ohio Central Railroad, Inc. 242 F.R.D. 413, 41425 (S.D. OH, 2007); Furlong v. Circle Line Statute ofLiberty Ferry, Inc., 902 F.Supp. 6526 (S.D.N.Y., 1995); and Shumaker v. West, 196 F.R.D. 454 (S.D.W.VA, 2000).27 5. Thus, the reports ofDr. Burchuk and Dr. Sarkasian appear to be exempt from the28 Rule 26 disclosure obligat ion. Defendants included these two physicians in their list of expert

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DECLARATION OF MARK A. WASSER IN SUPPORT OF DEFENDANTS' MOTIONFOR PERMISSION TO SERVE EXPERT REPORTS AFTERMAY 5, 2008


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1 witnesses out of a desire for full disclosure even though the Rule 35 exams have not yet2 occurred.3 6.

2122232425262728

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

118 kc ex parte r26 relief - declaration

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