Free Motion for Extension of Time - District Court of Colorado - Colorado

Case 1:03-cv-02401-RPM

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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 FOURTH MOTION FOR EXTENSION OF TIME TO SUBMIT FED. R. CIV. P. 26(a)(2) DISCLOSURES AND TO EXTEND CASE DEADLINES ______________________________________________________________________________ Plaintiff Jason C. Frederick, by and through undersigned counsel, submits the following Fourth Motion for Extension of Time To Submit Fed. R. Civ. P. 26(a)(2) Disclosures And To Extend Case Deadlines, and in support of his motion states: 1. Pursuant to Magistrate Judge Watanabe's Minute Order, dated April 21 2005, current

case deadlines are as follows: Plaintiff's Rule 26(a)(2) witnesses are to be disclosed by July 11, 2005; Defendant's Rule 26(a)(2) witnesses are to be disclosed by August 8, 2005; Plaintiff's rebuttal experts are to be disclosed by August 31, 2005; the discovery deadline is November 1, 2005; and the dispositive motions are due November 18, 2005. 2. Pursuant to Judge Matsch's Order of May 24, 2005, the Pretrial Conference,

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originally scheduled for November 28, 2005 with Magistrate Judge Watanabe, is now scheduled for September 9, 2005, with the proposed final pretrial order to be filed by September 2, 2005. 3. Plaintiff requests an extension of these case deadlines because the recent Rule

30(b)(6) deposition and document productions, and the depositions of individual employees of Defendant that were necessary discovery for Plaintiff to be in a position to prepare Rule 26(a)(2) disclosures were not completed. The Court will recall that Defendant destroyed the server/cart that held the collimator that fell on Plaintiff and caused his injuries, and, as well, Defendant failed to preserve the defective latching mechanism from the subject server/cart. Further, in discovery, Defendant had indicted that no exemplar latching mechanisms that were the subject of a word-wide recall program were preserved. As well, Plaintiff asserts that Defendant failed to preserve computer records containing the maintenance history of the subject AXIS system and the same or similar systems. Being hampered by the destruction of evidence necessary to present their case, Plaintiff served a deposition notice, including a Rule 30(6)(6) notice and notices to depose five employees of Defendant, which also included document requests, to be able to provide information to experts that is necessary support for opinions that are to be disclosed, pursuant to Rule 26(a)(2). Defendant's objections to the Notice were fully-litigated before Magistrate Judge Watanabe at a hearing on April 20, 2005, and Defendant was ordered to produce the documents sought and the witnesses requested. 4. The Rule 30(b)(6) deposition and the depositions of four of the five individual were

scheduled to be taken in Ohio from June 6 through June 10, 2005. Although the depositions were commenced, while at the deposition, Plaintiff's counsel was informed that one of the Rule 30(b)(6) witnesses was unavailable and the deposition would have to be completed at a later time.

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5.

Further, Magistrate Judge Watanabe had ordered the production of responsive

documents on May 11, 2005, so that they could be received and analyzed in sufficient time to prepare for the depositions. Defendant first requested an extension of time until May 18, 2005 (which Plaintiff did not oppose) and then failed to produce technical documents until after the Courtordered deadline on Saturday, June 4, 2005. Then, throughout the week of the depositions, additional technical documents were produced. On the last day of the depositions, Defendant produced what may be an exemplar of the defective latching pins that were presented without any explanation as to why they had not been produced previously. The late production of these documents and materials require further study to determine the extent that it is necessary to retake the Rule 30(b)(6) deposition of all or some of the witnesses and to make follow-up document requests before Rule 26(a)(2) disclosures are filed.1 6. Additionally, Plaintiff's medical condition continues to develop. Plaintiff has

recently undergone injections of Synvisc by Dr. Morris Susman of Colorado Joint Replacement. (See report of Dr. Susman attached as Exhibit 1.) 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.)

Plaintiff has not yet received the transcripts from any of the recent Cleveland depositions. Because of the timing of the upcoming deadlines, this Motion had to be filed without the benefit of an opportunity to review those transcripts. Plaintiff reserves the right to request leave of the Court to supplement this Motion once those transcripts are received and reviewed. 3

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7.

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 an extension of the following deadlines to the dates indicated: a. b. c. d. e. f. Plaintiff's Fed.R.Civ.P.26(a)(2) disclosures due October 11, 2005; 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. The undersigned is authorized to represent that Plaintiff-Intervenor joins Plaintiff in seeking the relief requested in this Motion. CERTIFICATE OF COMPLIANCE WITH D.C.Colo.LCivR 7.1 The undersigned states that he has discussed with defense counsel the issues raised in this motion and defense counsel has stated he is not in agreement with the requested relief.

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DATED this 21st day of June, 2005. s/Watson W. Galleher Shelley B. Don Watson W. Galleher 1737 Gaylord Street Denver, CO 80206 (303) 572-0668 Fax: (303)572-0900 [email protected] Attorney for Plaintiff

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CERTIFICATE OF SERVICE I hereby certify that on this 21st day of June, 2005, a true and correct copy of the foregoing PLAINTIFF'S FOURTH MOTION FOR EXTENSION OF TIME TO SUBMIT FED. R. CIV. P. 26(a)(2) DISCLOSURES AND TO EXTEND CASE DEADLINES 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 and further was mailed, postage prepaid to: Jason Frederick 9005 West 5th Avenue Lakewood, CO 80226

s/Roberta Glaser

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