Opinion
3:20-cv-00196-MMD-CLB
01-04-2022
FRANCES WEBB, an individual, Plaintiff, v. SYNTHES USA SALES, LLC, a Delaware Limited Liability Company; DEPUY SYNTHES SALES, INC., a Massachusetts Corporation; and DOES I-X inclusive, Defendant.
Steven F. Bus Attorney for Plaintiff Frances Webb JONES, SKELTON & HOCHULI Donn C. Alexander, Kenneth L. Moskow, (pro hac vice) KAEMPFER CROWELL Robert McCoy, Sihomara L. Graves, Attorneys for Defendant DePuy Synthes Sales, Inc.
Steven F. Bus
Attorney for Plaintiff Frances Webb
JONES, SKELTON & HOCHULI
Donn C. Alexander,
Kenneth L. Moskow, (pro hac vice)
KAEMPFER CROWELL
Robert McCoy,
Sihomara L. Graves,
Attorneys for Defendant DePuy Synthes Sales, Inc.
STIPULATION AND ORDER TO EXTEND DISCOVERY DEADLINES
(SECOND REQUEST)
Plaintiff Frances Webb and DePuy Synthes Sales, Inc. (“DePuy”) stipulate to extend the deadlines to complete discovery pursuant to Fed.R.Civ.P. 26, LR IA 6-1, and LR 26-3 as follows:
I. DISCOVERY COMPLETED
1. Plaintiff made its initial disclosures on May 4, 2020 and supplemented those disclosures on June 3, 2020.
2. DePuy made its initial disclosures on March 30, 2020, and supplemented them on February 17, 2021.
3. A Scheduling Order was issued by the Court on December 23, 2020 (ECF 17), which identified discovery deadlines in the case.
4. DePuy propounded a first set of document requests to Plaintiff on April 16, 2020, to which Plaintiff responded on July 15, 2020.
5. DePuy propounded a first set of interrogatories to Plaintiff on April 16, 2020, to which Plaintiff responded on July 17, 2020.
6. DePuy propounded a second set of document requests to Plaintiff on December 1, 2020, to which Plaintiff responded on January 21, 2021.
7. DePuy took the deposition of Plaintiff on November 11, 2020.
8. Plaintiff made her disclosure of retained and non-retained experts on March 5, 2021.
9. DePuy took the depositions of Plaintiff's treating surgeons and non-retained experts Dr. Althausen and Dr. Kasier on September 14, 2021 and December 3, 2021, respectively.
II. DISCOVERY REMAINING TO BE COMPLETED
Only defendants' expert disclosures and Plaintiff's depositions of those experts remain to be completed.
III. REASONS WHY DISCOVERY WAS NOT COMPLETED
This is the second requested extension of discovery. The parties have largely concluded fact discovery. Plaintiff disclosed her experts and Defendants have taken these experts' depositions. However, the depositions of plaintiffs' non-retained experts were substantially delayed by DePuy's objection to those surgeons' hourly rate for depositions and the surgeons' refusal to appear for deposition unless DePuy paid these physicians $2,500 per hour for deposition time.
Dr. Althausen's deposition was initially scheduled for April 27, 2021, but subsequently vacated by DePuy due to the fee issue. As the Court is aware, DePuy filed a motion (ECF No. 23) to resolve this issue. The Court granted that motion in an order issued June 24, 2021 (ECF No. 26). Scheduling of the depositions was not being pursued while the Motion was pending. Since that time, scheduling difficulties with the treating surgeons delayed the depositions for several months. DePuy was able to finally take the deposition of Dr. Althausen on September 14, 2021 and Dr. Kaiser on December 3, 2021, although the latter was past the October 18, 2021 discovery deadline. The deposition of Dr. Kaiser was scheduled to occur earlier on November 12, 2021, but his emergency call schedule caused him to miss his noticed deposition. Dr. Kaiser's depositions could not be rescheduled until December 3, 2021 when his deposition was finally taken.
Under the parties' original stipulated discovery plan, which the Court adopted on April 22, 2020 (ECF No. 11) and extended by amendment on December 23, 2020 (ECF No. 17), the completion of these depositions was to occur before the deadline for DePuy to make its expert disclosures. Given these circumstances, the parties submit that good cause exists for modifying these deadlines. The delays in completing this discovery were not caused by the parties' inaction or lack of diligence, but rather by fee payment and schedule issues by treating surgeons that were outside of the parties' control.
IV. CURRENT DEADLINES AND PROPOSED NEW DEADLINES
Event
Current Deadline
Proposed Deadline
Close of Discovery
October 18, 2021
May 23, 2022
Defendants' Expert Disclosures
June 15, 2021
January 24, 2022
Rebuttal Expert Disclosures
September 13, 2021
April 25, 2022
Dispositive Motion Deadline
November 15, 2021
June 20, 2022
Joint Pretrial Order
December 15, 2021
July 20, 2022
The parties will complete depositions of DePuy's experts by March 21, 2022 and complete depositions of any rebuttal experts by May 23, 2022.
ORDER
IT IS SO ORDERED.