Opinion
MDL DOCKET NO. 1467.
June 24, 2003.
Robert H. Smalley, III, Esq., McCamy, Phillips, Tuggle Fordham, LLP, Dalton, GA, Liaison for Plaintiffs.
J. Anderson Davis, Esq., Brinson, Askew, Berry, Seigler, Richardson Davis, LLP, Rome, GA, Lead/Liaison Counsel for Defendant Funeral Homes.
McCracken Poston, Jr., Esq., Office McCracken Poston, Ringgold, GA, Liaison/Lead Counsel for Tri-State Crematory Inc.
Frank E. Jenkins, III, Jenkins of Olson, P.C., Cartersville, GA, Liaison/Lead Counsel for T. Ray Brent Marsh, T. Ray Marsh, and Clara Marsh.
ORDER REGARDING EXPERTS
This diversity jurisdiction class action is before the Court following a status conference held between all liaison counsel. In an earlier discovery conference call with the Court, Plaintiffs requested the Court to appoint an expert in forensic anthropology, pursuant to Rule 706 of the Federal Rules of Evidence and Rule 53 of the Federal Rules of Civil Procedure. The Funeral Home and Marsh Defendants opposed such an appointment and stated that each party should designate whomever they desired to use as an expert in forensic anthropology. Plaintiffs' Request for the Appointment of a Rule 706 expert is denied.
To facilitate discovery, each party may select expert(s) in forensic anthropology or other related field with expertise in testing and examining of cremated remains and the expert(s) shall conduct testing and examination of cremated remains at their respective laboratories or any other location they deem necessary to conduct the testing and examination. Any testing of alleged cremated remains shall be conducted in the least destructive manner as possible.
All parties shall have the right to test and examine any cremated remains that are tested and examined by any other party. The Georgia Bureau of Investigation shall transfer or make available any cremated remains, within its possession, of any decedent allegedly cremated by Tri-State Crematory between 1988 and 2002 to the Plaintiffs' experts for testing and examination, or to another party's experts, should plaintiffs choose not to test certain cremated remains. Likewise, any person who has possession and control of the cremated remains of any decedent allegedly cremated by Tri-State Crematory from 1988 to 2002 and has sought testing by the Georgia Bureau of Investigation or some other testing group or agency shall make these remains available to Plaintiffs' counsel for testing and examination, or to another party's experts, should plaintiffs choose not to test these cremated remains.
Once Plaintiffs' experts complete their testing and examination of the cremated remains, Plaintiffs' experts shall deliver such cremated remains to the location requested by counsel for Defendant Funeral Homes for testing by the Funeral Homes' experts. Any cremated remains that are not tested or examined by the experts of Defendant Funeral Homes shall be made available to the Marsh experts for testing and examination. Any cremated remains not tested or examined by the Marsh experts shall be returned to the Georgia Bureau of Investigation, funeral home or individual from which they were obtained.
Once the experts of Defendant Funeral Homes complete their testing and examination of the cremated remains, these remains shall be made available to the Marsh experts for testing and examination. Any cremated remains not tested or examined by the Marsh experts shall be returned to the Georgia Bureau of Investigation, funeral home or individual from which they were obtained. After the Marsh experts complete their testing and examination of any cremated remains, such remains shall be returned to the Georgia Bureau of Investigation, funeral home or individual from which they were obtained.
The deadline for each party's filing and service of expert reports shall remain unchanged from that set forth in the Scheduling Order, as amended on April 18, 2003. Any expert(s) designated by any party to testify and/or render opinions regarding the testing, examination, findings or conclusions arising from cremated remains shall submit their findings to the other parties within fourteen (14) days of concluding the testing and examination of the cremated remains and shall supplement their report accordingly. Likewise, should another party test cremated remains prior to the experts of plaintiffs, then said findings shall be submitted to the other parties prior to any reporting deadline on the specific tested and examined cremated remains.
IT IS SO ORDERED.