Free Appeal of Magistrate Judge Decision to District Court - District Court of Colorado - Colorado

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 03-CV-2401 (RPM) (MJW) JASON C. FREDERICK Plaintiff, KAISER PERMANENTE and RSKCO CLAIMS SERVICES, as subrogee for JASON C. FREDERICK, Plaintiff-Intervenor, v. PHILIPS MEDICAL SYSTEMS (CLEVELAND), INC., an Ohio corporation, Defendant. ______________________________________________________________________________ PLAINTIFF'S RULE 72 OBJECTIONS TO MINUTE ORDER OF MAGISTRATE JUDGE WATANABE, DATED JUNE 30, 2005, AND REQUEST FOR FORTHWITH RULING _______________________________________________________________________________ Plaintiff Jason C. Frederick, by and through undersigned counsel, submits the following Rule 72 Objections to Minute Order of Magistrate Judge Watanabe, Dated June 30, 2005, and Request for Forthwith Ruling, stating as follows: 1. On June 21, 2005, Plaintiff filed their Fourth Motion for Extension of Time to Submit

Fed. R. Civ. P. 26(a)(2) Disclosures and to Extend Case Deadlines. There are two principal reasons that the Court should extend the current schedule of expert disclosures and the pretrial conference.1 First, discovery disputes that were brought to the Court's attention at the hearing on May 25, 2005, have not been resolved, and there is still necessary discovery that must be completed before Plaintiff

Plaintiff's Rule 26(a)(2) disclosures are presently due on July 11, 2005, and the pretrial conference is presently set for September 9, 2005. 1

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is required to submit Rule 26(a)(2) disclosures addressing liability issues. Second, as was brought to the Court's attention at the hearing on May 25, 2005, Plaintiff's medical condition is continuing to develop and, therefore, Rule 26(a)(2) disclosures addressing damages cannot be completed at this time. 2. The Motion for Extension sets forth that since the May 25, 2005 hearing, Plaintiff's

counsel traveled to Cleveland, Ohio to take a Rule 30(b)(6) deposition of Defendant Philips on various topics from June 6 through June 10, 2005. Even though the scope of the notice, including document requests, had been specifically addressed by Magistrate Judge Watanabe at a hearing on April 20, 2005, Defendant failed to produce documents that were ordered and other documents were belatedly produced after the Court-ordered deadline either on the eve of or during the deposition, requiring that some of the witnesses will have to be re-deposed. Further, when Plaintiff's counsel was in Cleveland, he was informed that one of the crucial Rule 30(b)(6) witnesses was out of the country and would have to be deposed at a later date.2 This Court-ordered discovery is necessary for Plaintiff to submit his Rule 26(a)(2) disclosures ­ particularly in this case where Defendants destroyed the key evidence needed by Plaintiff to prove his case. 3. The Motion for Extension also updates and informs the Court of recent developments

in Plaintiff's medical condition. Plaintiff has recently undergone injections of Synvisc by Dr. Morris Susman of Colorado Joint Replacement. (See reports of Dr. Susman dated March 15, 2005, March

Plaintiff received the transcripts of the Rule 30(b)(6) deposition on June 29, 2005, and is preparing a motion to compel and for sanctions to be filed with Magistrate Judge Watanabe as soon as it is completed. 2

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24, 2005, and March 30, 2005, attached as Exhibit 1.)3 This treatment did not improve Plaintiff's condition. On June 15, 2005, Plaintiff was seen by Dr. William Sterett of the Steadman Hawkins Clinic for evaluation of a surgical procedure known as high tibial osteotomy. This surgical procedure essentially changes the weight bearing structure of the knee. (See report of Dr. Sterett attached as Exhibit 2.). In view of the present uncertainty regarding Plaintiff's medical condition, Plaintiff submits that Rule 26(a)(6) disclosures regarding damages should be delayed. 4. On June 23, 2005, Magistrate Judge Watanabe entered a Minute Order, denying the

Motion for Extension. At a hearing on June 30, 2005, in response to Plaintiffs' oral request to reconsider the Minute Order, Magistrate Judge Watanabe explained his Order as follows: Except you may be pulling the cart before the horse because Judge Matsch has already accelerated, in other words, moved up the final pretrial conference. I did not move up the final pretrial conference. He's conducting his own final pretrial conference. He expects the discovery to be done prior to the final pretrial conference; therefore, I had to set the dates to complete discovery before that. And I gave you almost up to the day before the final pretrial conference to complete discovery. So you may be asking relief from me that I cannot grant you. I think you may be needing to go before Judge Matsch regarding the trial setting and whether or not it's going to be vacated and whether or not he's inclined to extend or move out into the future the final pretrial order that he had set. If you recall, the final pretrial order that I set was in November. * * *

So I'm not the one that moved it earlier in time. Judge Matsch did. Now, he has the option to do that because he's the trial judge on the merits, and he has decided that the case needs to be accelerated. It wasn't my decision. But because of that, I am in the situation where I need to make sure the discovery gets completed prior to the final pretrial conference. So I can appreciate

The reports dated March 24 and March 30, 2005 are newly received and were not included with the Motion for Extension. 3

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your argument to me, but I think that argument needs to be addressed before Judge Matsch because it's a remedy that I can't provide to either side at this point. Reporter's Transcript of Motions Hearing, dated June 30, 2005 at 10:13-11:3, 11:7-16, cited portions attached hereto as Exhibit 3. 5. Plaintiff believes that when the Court set the Final Pretrial Conference for September

9, 2005, the Court recognized that this conference may have to be continued because of both the remaining issues with the completion of discovery and Plaintiff's changing medical condition. At the hearing on May 24, 2005, the following excerpts of colloquy suggested to undersigned counsel the that Court recognized that the September 9, 2005 date for the Final Pretrial Conference may need to be continued because of both of these issues. The complication of the medical issues was addressed as follows:: The Court: . . . Well, okay, if he hasn't reached maximum medical improvement, maybe he's not ready for trial. . . . * * *

Mr. Don, I'll hear from you, you know, as to whether it ought to be set for trial. Mr. Don: Your Honor, I think under the circumstances of this case, that the Plaintiff has sustained an injury to his joint, and he has -The knee joint? The knee. He may need a knee replacement, but he is undergoing a treatment designed to simulate growth to determine whether or not the rehabilitation process can be accommodated without surgery. And, that process is ongoing -Is there a fracture going up into the knee? No, it's not a fracture. It's an injury that caused some deterioration in the knee, and --

The Court: Mr. Don:

The Court Mr. Don:

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The Court: Mr. Don:

In the bone? In the bone, which has continued. His job requires him to be on his feet, and he has seen Dr. Ross Wilkins, who is one of the leading orthopedic surgeons around, who has referred him to a specialist that he wants to evaluate him. They have or are scheduled to administer some treatments to the knee to see if they can stimulate growth without surgery. If not, it's gong to require a replacement. At this point, we don't know what the outcome will be. So, I would suggest that it probably is not ready to be tried, because the damages are not really ripe. He has not gotten the maximum medical improvement. * * *

Mr. Montgomery: The Court:

. . . We would like to get this thing discovered and resolved.

Well, if we don't know -- if Mr. Frederick hasn't reached maximum improvement, and if we don't have a prognosis -Well, we have -- I mean, that happens in almost every personal injury case with future medicals, and I don't know how many --

Mr. Montgomery:

The Court:

Well, except that usually, we can get somebody to testify that we've tried everything we've got and he may possibly need surgery, and so forth.

Objections to Magistrate Judge's Order, Transcript of Proceedings, dated May 24, 2005 at 7:19-20; 7:23-8:23, 17:4-14. The entire transcript is attached as Exhibit 4. As well, the Court was informed of the problems that have plagued discovery, as follows: The Court: But. Is all of the discovery ­ are all of the discovery-disputes resolved? No, they're not, Your Honor. What's still out there? Well, we filed a motion today because we've got some documents in the last five days as a result of an order judge Watanabe entered at a hearing on a motion for protective order that was held on April 20th. And, that motion was directed to the scope of a 30(b)(6) deposition. 5

Mr. Don: The Court: Mr. Don:

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We've had a struggle getting information about the other similar incidents related to this case. And, we learned in fact just this weekend that there was a product defect letter sent by the FDA, and that the recall that we referenced in the pleadings was done voluntarily, but was overseen by the FDA, and there were certain reports made as a result of that recall in the form of letters to the FDA that we have not yet received, and didn't know existed, frankly. And, if we had known they existed, would have been evidence in front of Judge Watanabe, Magistrate Judge Watanabe. So, you know, we're having to pull teeth to get the discovery, and we have depositions scheduled in June. The Court: Mr. Don: I noticed that. Which may be the subject of yet another motion, now that we have this information, to amend the scope of our 30(b)(6) to inquire into this recall.

Id. at 9:19-10:19. Plaintiffs submit that the Court had concerns regarding these issues, and that the Pretrial Conference was set with the hope of moving the case forward while recognizing these problems. When the pretrial conference was set, the Court stated: The Court: . . . So, we can set a pretrial conference. That doesn't -- we can set the trial at that time. So, if we set a pretrial conference now, we've got something to work toward. * * *

. . . I'm going to suggest early September. * * *

That ought to give time to get some of these things done, like September ­ like September 9th. * * *

And, it will be at that time we set it for trial. So, hopefully, these other things will have been cleared out of the way by then, I hope.

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Id. at 19:19-22, 20:4, 20:6-7, 20:19-21. 6. While some progress has been made both in discovery and in moving toward more

certainty regarding Plaintiff's medical condition since the May 24, 2005 hearing, Plaintiff is not in a position to submit Rule 26(a)(2) disclosures by July 11, 2005. As further grounds for the relief requested, the undersigned counsel informs the Court that he is scheduled to be in a trial in Aspen, Colorado in Ronald Kanan; Kanan Construction & Development, LLC; and Rainbow Land Company v. Kentco Limited Partnership; RK Land & Cattle Company, LLC; Richard Kent, Aspen Domain Interior Design, Inc.; Joyce Amico; and Pitkin County Title, Inc., Case Number 03 CV 270, Division 1 in the District Court of Pitkin County, before the Honorable T. Peter Craven, scheduled to commence on July 18, 2005, for seven trial days over a two week period. Further, co-counsel Robert Douglas, who took the Rule 30(b)(6) deposition in Cleveland, is withdrawing from this case because he recently accepted a position with the Colorado State Attorney General's office. Under these circumstances, Plaintiff cannot meet the deadline of July 11, 2005, for the filing of Rule 26(a)(2) disclosures. 7. Plaintiff requests a forthwith ruling on this Motion so that the Court issues its ruling

in advance of the upcoming Rule 26(a)(2) deadline and the expense of preparing to meet that deadline can be avoided. 8. Because the case is still in active discovery with the ongoing production of

documents by Defendant, and the need to complete the Rule 30(b)(6) deposition, and Plaintiff's developing medical condition, Plaintiff requests this Court to vacate the Minute Order of Magistrate Judge Watanabe and order an extension of the following deadlines to the following dates: a. Plaintiff's Fed.R.Civ.P.26(a)(2) disclosures due October 11, 2005;

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b. c. d. e. f.

Defendant's Fed.R.Civ.P.26(a)(2) disclosures due November 10, 2005; Rebuttal Experts due November 30, 2005; Discovery cut-off is December 15, 2005; and Dispositive motions due on December 19, 2005. Pre-trial Conference reset to a date subsequent to December 19, 2005.

WHEREFORE, Plaintiff requests this Court to enter an order granting an extension of time, up to and including October 11, 2005, for Plaintiff to submit his Fed.R.Civ.P. Rule 26(a)(2) disclosures; for Defendant's Fed. R. Civ. P. 26(a)(2) disclosures to be due on November 10, 2005; for rebuttal expert witness disclosures due on November 30, 2005; for the discovery deadline to be extended to December 15, 2005; for dispositive motions to be due on December 19, 2005, and for the currently scheduled pre-trial conference to be vacated and reset for a date subsequent to December 19, 2005 and for any further relief that the Court deems just and proper.

CERTIFICATE OF COMPLIANCE WITH D.C.Colo.LCivR 7.1 Counsel for Defendant indicated that he opposes this relief at the hearing before Magistrate Judge Watanabe on June 30, 2005, and, therefore, no further efforts to confer have been made.

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DATED this 1st day of July, 2005.

s/ Shelley B. Don Shelley B. Don Watson W. Galleher DON, HILLER& GALLEHER, PC 1737 Gaylord Street Denver, CO 80206 (303) 572-1668 Fax: (303) 572-0900 [email protected] Attorney for Plaintiff

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CERTIFICATE OF SERVICE I hereby certify that on this 1st day of July, 2005, a true and correct copy of the foregoing PLAINTIFF'S RULE 72 OBJECTIONS TO MINUTE ORDER OF MAGISTRATE JUDGE WATANABE, DATED JUNE 30, 2005, AND REQUEST FOR FORTHWITH RULING was electronically filed with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses: [email protected] for C. Michael Montgomery, Esq. Damian Stone, Esq. Montgomery, Kolodny, Amatuzio & Dusbabek, L.L.P. 475 17th Street, Suite 1600 Denver, CO 80202 [email protected] for Geri O'Brien Williams, Esq. Scott M. Ayler, Esq. Dworkin, Chambers & Williams, P.C. 3900 E. Mexico Avenue, Suite 1300 Denver, CO 80210

s/Roberta Glaser

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