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Elliott v. Smith & Nephew, Inc.

United States District Court, Ninth Circuit

June 11, 2013

L. WAYNE ELLIOTT & NORMA ELLIOTT, husband and wife, Plaintiffs,
v.
SMITH & NEPHEW, INC., an entity incorporated under the laws of Delaware, and ABC CORPORATIONS 1-5, Defendants.

REPORT AND RECOMMENDATIONS RE CASE MANAGEMENT DEADLINES

RONALD E. BUSH, Magistrate Judge.

Pursuant to the Court's Order of May 7, 2013 (Dkt. No. 45), the parties participated in a Voluntary Case Management Conference on June 4, 2013, with the Honorable Judge Ronald E. Bush. According to the agreements reached during that Conference, the undersigned hereby submits the following report and recommendations for a Case Management Order:

1. Time Frame for Early ADR and Related Discovery:

a. Plaintiffs will provide counsel for Defendant with medical releases by June 7, 2013, so that Defendant can obtain copies of Mr. Elliott's medical records. Defendant will provide counsel for Plaintiffs with copies of all medical records received and the parties will share any costs associated with obtaining the records.
b. Defendant will take depositions regarding Mr. Elliott's medical condition and damages, to be completed by mid-August 2013. Defendant intends to depose the Plaintiffs Wayne Elliott and Norma Elliott, and Mr. Elliott's physicians, Dr. Heggland and Dr. Hedemark.
c. Mr. Elliott will submit to an Independent Medical Examination, to be completed by mid-August 2013.
d. Mediation will be scheduled for September 2013. Counsel for Defendant will contact John Magel to set a date. If Mr. Magel is not available in September, counsel for Defendant will contact Merlyn Clark. Both parties will have an individual with settlement authority personally present at such mediation.

2. Discovery:

a. Defendant's obligation to respond to Plaintiffs' pending written discovery is suspended pending the outcome of mediation. Defendant will respond to Plaintiffs' written discovery within 21 days following the completion of mediation, if the mediation is unsuccessful. Defendant will respond to all outstanding discovery, which includes the following:
i. Plaintiffs' Revised First Set of Interrogatories;
ii. Plaintiffs' Second Set of Interrogatories;
iii. Plaintiffs' First Set of Requests for Production of Documents;
iv. Plaintiffs' Second Set of Requests for Production of Documents;
v. Plaintiffs' Third Set of Requests for Production of Documents;
vi. Plaintiffs' First Set of Requests for Admission;
vii. Plaintiffs' Second Set of Requests for Admission.
b. Defendant's obligations under the letter agreement of May 28, 2013, concerning Defendant's examination and testing of the device are not suspended. Defendant will complete its examinations and testing of the device in compliance with the letter agreement.
c. Plaintiffs have responded to Defendant's initial discovery and have provided Defendant with their expert reports of R. Dean Harris concerning liability and Mary Barros Bailey concerning damages.
d. Plaintiffs will timely supplement their prior responses to Defendant's discovery with respect to their use of social media, and evidence illustrating, documenting or otherwise concerning their medical condition and damages. Defendant agrees to not object to the number of interrogatories which are the subject of Plaintiffs' Motion for Leave to Serve Additional Interrogatories (Dkt. No. 54), which Motion is consequently withdrawn is reliance upon this agreement.
e. Defendant further agrees to make its employees, Jean Bjerke and Ramona Soilea, available for deposition in Boise, Idaho, if the September mediation is unsuccessful.
3. Amendment to Pleadings and Joinder of Parties due November 15, 2013. Provided, however, that Plaintiffs reserve the right to seek amendment of the Complaint to add a punitive damage claim until July 18, 2014.
4. Fact discovery will be completed by March 31, 2014. Any party may nevertheless propound Rule 36 requests to admit the authenticity of documentary evidence which may be used at trial at any time up until 90 days prior to the commencement of trial.
5. Expert Witness Disclosure:
a. Plaintiffs' expert disclosures due April 11, 2014.
b. Defendant's expert disclosures due May 9, 2014.
c. Rebuttal expert disclosures due May 23, 2014.
6. Additional ADR: to be held by June 6, 2014.
7. Final Expert Discovery Due: June 20, 2014.
8. Nondispositive & Dispositive Pre-Trial Motions Deadline: July 18, 2014.
9. Proposed Trial Date: Request a trial setting as soon as can practicably be set given the foregoing deadlines.
10. Trial: Jury.
11. Total Projected Number of Days: Eight (8).
12. Location: Boise.

RECOMMENDATION

It is hereby recommended that the District Court adopt these agreements and enter a Scheduling Order to this effect. It is also recommended that the Clerk of the Court change the CM/ECF record for this case to reflect that the Motion for Leave to Serve Additional Interrogatories (Dkt. No. 54) has been withdrawn.


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