Free Transcript - District Court of Colorado - Colorado

Case 1:00-cv-02098-REB-MJW

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO 00-CV-02098 REB-MJW

KELLY FINCHER, by her guardian, JAMES FINCHER, on behalf of herself and those similarly situated, Plaintiff, vs. PRUDENTIAL PROPERTY AND CASUALTY INSURANCE COMPANY, et al, Defendants. Proceedings before MICHAEL J. WATANABE, United States Magistrate Judge, United States District Court for the District of Colorado, commencing at 10:38 a.m. on Thursday, March 23, 2006, in the United States Courthouse, Denver, Colorado. WHEREUPON, THE ELECTRONICALLY RECORDED PROCEEDINGS ARE HEREIN TYPOGRAPHICALLY TRANSCRIBED... TELEPHONIC APPEARANCES MR. L. DANIEL RECTOR, ESQ. Appearing on behalf of Plaintiffs. MR. CLIFTON J. LATIOLAIS, ESQ. Appearing on behalf of Defendants. STATUS CONFERENCE

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P R O C E E D I N G S (Whereupon, within the electronically recorded proceedings are herein transcribed, pursuant to order of counsel.) THE COURTROOM DEPUTY: THE COURT: Court is in session. The Court

You may be seated.

calls 2000-CV-02098 REB-MJW.

Kelly Fincher by her

guardian James Fincher on behalf of herself and others similarly situated, plaintiffs, versus Prudential Property and Casualty Insurance Company a New Jersey Corporation, defendants. Counsel on behalf of the plaintiff if you'd enter your appearance, please. MR. RECTOR: Yes, Your Honor, this is Dan

Rector of the Kerry Law Firm. THE COURT: Counsel on behalf of defendants. Good morning, Your Honor, this

MR. LATIOLAIS: is Cliff Latiolais. THE COURT:

All right.

This matter is before The reason

the Court this morning for further status.

why the Court set the status today and on a forthwith basis is the parties received some recent rulings from Judge Blackburn. Judge Blackburn also set a trial date.

He also set a trial preparation conference date in his third trial preparation conference order. The trial is

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now set for October 15, 2007, beginning at 8:30 a.m. before Judge Blackburn. He's also set other deadlines

in the case including a trial preparation conference in the case. So I want to get updated from counsel after receiving the plaintiffs' status report. I'm not really

clear as to what discovery you're suggesting you need at this point, Mr. Rector. MR. RECTOR: Dan Rector, once again. Thank you, Your Honor. This is

In light of Judge Blackburn's

ruling that he will not allow any additional discovery at present related to the class certification issue -THE COURT: MR. RECTOR: Right. -- it is our position that

although there should be discovery related to the individual claims of the plaintiff, particularly given the passage of time since last we did this, we recommend that there be no discovery for a period of time, perhaps six months, because with the trial so far off, we think even some of the discovery that would be conducted in the short-term would be become stale. It's our feeling that there's a probability that the briefing completed on the class certification issue the Court may well rule within the four- tosix-month period and then we'd be in a better position

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to reconvene this status conference and determine what discovery is appropriate after that. So we're recommending a postponement or stay of discovery until the conclusion of the class certification matters or until we reschedule this again. THE COURT: How would discovery be stale as it

relates to Ms. Fincher? MR. RECTOR: Well, because she's got problems

related to learning disabilities and that sort of thing, and her economic losses that we think would be better -I guess better addressed as we approach a time closer to the trial date, because it's so far off, a year and a half away. I don't think anything that we do presently

wouldn't be valuable, but it just seems like we might have to revisit it. (Inaudible) for example, there was

a deposition that was -- took place years ago and then there had to be a supplemental deposition. I just think

that maybe it would be better served to do this all at a more proximate time to the trial. THE COURT: Let me hear from the defendant. Thank you, Your Honor, this is

MR. LATIOLAIS: Cliff Latiolais. Mr. Rector.

Your Honor, I don't disagree with

It would appear from the Court's ruling

that the class certification issue will be briefed in short order and, depending on the Court's ruling, will

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either engage in potentially some additional class discovery if a is certified or at that point will be moot. Mr. Rector and I have discussed these issues ahead of time and although we disagree on whether any additional discovery will be needed as to the plaintiffs individual claims -- and I'll explain why in just a moment -- I think we both agree that there's no sense in beginning that discovery at this point because they are time sensitive. In other words, the plaintiff's medical condition is changing. And there's no sense in doing

discovery now with a trial date a year and a half away. And Mr. Rector and I believe that whatever discovery may be permitted by the Court that can probably be completed with a -- easily within a six- to- nine-month time frame more contemporaneous to the trial date. Therefore, it

will be valuable and it won't be stale by the time the parties get to trial. THE COURT: months? I -Why -- why would this take nine

I don't see that. MR. LATIOLAIS: Oh, no, Your Honor, it I think the

definitely wouldn't take that long.

discovery that's contemplated by the plaintiff is just to update some of the medical reports and then to the

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extent the Court permits testimony in the areas of economic loss and so on, to allow those experts to update their opinions. I suspect it would only take a few months, but I'm simply suggesting that the parties not need conduct discovery for quite some time since the trial date is a year and a half away. THE COURT: Except, unless I'm mistaken, I

don't think you actually have -- and maybe I misread this -- let me double check. Maybe I misread this. I

don't think there's actually a briefing schedule, is there, at this point? MR. LATIOLAIS: Yes, Your Honor, I believe the

Court has invited plaintiff to file the class certification motion by April 3rd or 4th. THE COURT: Okay. So if that's the case it

should be ripe for ruling the first part of May, right? Roughly? MR. RECTOR: Roughly speaking, Your Honor, --

this is Dan Rector -- maybe a little later. THE COURT: Yeah, okay. So even if it's the

end of May -- all right.

I'm going to set a further So

Rule 16 scheduling conference in early September.

counsel need to take their calendars out at this point. That will give Judge Blackburn, given the benefit of the

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doubt, let's say the motion is not ripe until the end of May, that's three months after that to rule on it. that should be adequate. So I'll try to set this early part of September. September 5, 2006 at 8:30 for a further Rule So

16 scheduling conference? MR. RECTOR: Your Honor, this is Dan Rector,

will we be doing that by telephone again? THE COURT: MR. RECTOR: THE COURT: MR. RECTOR: THE COURT: submit the -MR. RECTOR: I'm --I'm at a settlement No. All right. No. Although I don't -No, because I'll have you Well --

conference and I don't have my calendar in front of me, I'm sure that date will work for me. THE COURT: MR. RECTOR: THE COURT: It does work or doesn't work? It does, Your Honor. Okay. Your Honor, this is Cliff

MR. LATIOLAIS:

Latiolais, I apologize, I'm in trial in La Plata County the first three days of that week -- the first four days of that week. THE COURT: Oh, all right. So you're in trial

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that whole first week of September? MR. LATIOLAIS: Your Honor, I am -- I am

assuming I would be back on Friday so I would be available Friday the 8th. THE COURT: Well, Monday, September -- or

Tuesday, September 12th at 9:00 a.m.? MR. LATIOLAIS: again. Your Honor, Cliff Latiolais

I apologize, I have trial the first three days That's -- I believe that's in a

of that week, as well.

Denver metropolitan area, though. THE COURT: a.m.? That's -MR. LATIOLAIS: Latiolais, Your Honor. THE COURT: MR. RECTOR: All right. And Your Honor, this is Dan That's acceptable to Friday, September 15th at 9:00

Rector, I'm sure we'll have that work all right for us as well. THE COURT: write that in. All right. Let me go ahead and I'm sorry, counsel, Hold

Oh, just a moment.

I can't do it that day. on.

I misread the calendar.

Can you do it on September 14th at 9 o'clock? MR. LATIOLAIS: THE COURT: MR. RECTOR: The defendant can, Your Honor.

Okay. And that's fine with us too, this

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is Dan Rector. THE COURT: Okay. That will be the date. I'll I'm

sorry, I gave you the other date by mistake.

actually be in hearing through 9:30 so I won't be able to do it the 15th. MR. RECTOR: Judge, would you repeat that date

and time for me, please? THE COURT: Yes, September 14, 2006 at

9 o'clock a.m. and I will need the parties to submit their proposed scheduling order to the Court on or before Monday, September the 11th, 2006. And I'll just inform counsel, it will depend on whether or not Judge Blackburn has a ruling on the class certification. If he rules that there is no class

certification and denies that, then we'll just proceed with Ms. Fincher's discovery. If it turns out that we

have a ruling that shows he's granting the class certification then we'll deal with the discovery as it relates to a class certification situation. But I can't tell you how it will be postured because the motion is yet to be filed and obviously there's no ruling yet. by ear at that point. MR. RECTOR: Honor. So we'll just have to play that Is that clear to both sides? This is Dan Rector, yes, Your

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THE COURT:

Okay. Yes, Your Honor.

MR. LATIOLAIS: THE COURT:

Okay. Your Honor, this is Cliff

MR. LATIOLAIS:

Latiolais, again, I don't mean to interrupt, but I have -THE COURT: No. -- two other issues if I might

MR. LATIOLAIS: address with the Court. THE COURT:

Yes. I don't think this is ripe at

MR. LATIOLAIS: the present time.

I just wanted to advise the Court

that Prudential, the defendant, believes that further individual discovery is unnecessary. I'm assuming that

we can address that in the context of our -THE COURT: Yeah. Okay. Very well.

MR. LATIOLAIS: THE COURT:

We can. Good. Next, Your Honor,

MR. LATIOLAIS:

Mr. Rector and I have discussed this and I just want to make sure we're on the same page here. In conjunction

with the class certification motions, Prudential expects to file a renewed motion for summary judgement on one particular issue. THE COURT: Uh-huh.

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MR. LATIOLAIS:

And I would assume that that

is consistent with the procedural status of the case right now, but to the extent Mr. Rector might have some objections in light of the postponed status conference I just wanted to make sure that everyone was aware that have. The issue has to do with the plaintiffs entitlement to the recovery of wage loss benefits because she was a minor at the time of the accident. And of course, the legal issue involves the entitlement to such benefits under Colorado's prior No-Fault Act. The reason we believe that's important in light of the class certification briefing is it has to do with the plaintiffs ability to serve as a class representative for those types of claims. I'm assuming that there is no prohibition as to the filing of that motion at this point in time, but I did want to alert the Court in case Mr. Rector had any concerns or objections. THE COURT: All right. All right. Anything

further then on behalf of plaintiff at this point? MR. RECTOR: Well, Your Honor, the only thing

I would say just so I'm not (inaudible) on that is it is our position that only the class certification motions are in play at this time. If that's not the case then

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we'll respond accordingly to whatever motions that are filed or those that we might ourselves might file. THE COURT: behalf of defendant? MR. LATIOLAIS: Your Honor, only we might All right. Anything further on

anticipate requesting perhaps some additional time or perhaps an -- some additional page -- allotment of pages for the filing of a response brief. THE COURT: Judge Blackburn. MR. LATIOLAIS: Judge. THE COURT: That motion is before him. Okay. Very well, thank you, You have to address that with

Anything else on behalf of defendant? MR. LATIOLAIS: THE COURT: appearances. None, Your Honor. Thank you for your

All right.

We're in recess. Thank you, Judge. Thank you.

MR. RECTOR:

MR. LATIOLAIS:

(Whereupon, the within hearing was then in conclusion at 10:52 a.m. on this date.)

I certify that the foregoing is a correct transcript, to the best of my knowledge and belief

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(pursuant to the quality of the recording) from the record of proceedings in the above-entitled matter.

Kelly Mair Signature of Transcriber

May 21,2008 Date

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