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118 KC Ex Parte R26 Relief - Declaration by eugenedlee

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David F. Jadwin v. Kern County: 1:07-cv-26 in the United Stated District Court for the Eastern District of California, Fresno Division before Judge Oliver W. Wanger. This was a 2009 federal employment lawsuit that went to a bench and jury trial resulting in a unanimous verdict and significant judgment for the plaintiff employee. Issues involved violations of medical leave and disability discrimination laws, as well as 42 U.S.C. 1983 procedural due process violation. Plaintiff was represented by Eugene Lee, a Los Angeles, California employment lawyer.

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									Case 1:07-cv-00026-OWW-TAG

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Mark A. Wasser, CA SB #060160 LAW OFFICES OF MARK A. WASSER 400 Capitol Mall, Suite 1100 Sacramento, CA 95814 6) qqq-OqlJU 444-6405

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) ) ) ) ) ) ) ) ) ) ) ) Date Action Filed: January 6, 2007 ) Trial Date: December 3, 2008 ) )

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24 25 26 27 28 I, Mark A. Wasser, declare as follows:

1. I am counsel of record for Defendants and I am familiar with this proceeding. facts in this declaration are true and correct of my own personal knowledge and I can testify competently to them if called as a witness.

-1DECLARATION OF MARK A. WASSER IN SUPPORT OF DEFENDANTS' EX PARTE APPLICATION FOR ORDER SHORTENING TIME RE MOTION FOR PERMISSION TO SERVE EXPERT REPORTS AFTER MAY 5,2008

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2. The original scheduling order (filed May 31,2007) was modified by stipulation of Court on November 20, 2007 ("Scheduling Order"). A true and correct

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names,

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Olson-Buchanan can cornpJ,ete 21 22 23 24 25 26 27 28
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focused on Defendants' affirmative defenses and Plaintiff has done little to develop any evidence to support the allegations in his complaint. 7. Defendants intend to schedule the examination of Plaintiff, either by noticed motion under Rule 35 or stipulation, before the Supplemental Disclosure on June 4, 2008. The reports should be available shortly after the examinations. 8. It is not clear that the reports of examining physicians are subject to the disclosure requirements of Rule 26(a)(2)(B). Although the Ninth Circuit does not appear to have addressed

DECLARATION OF MARK A. WASSER IN SUPPORT OF DEFENDANTS' EX PARTE APPLICATION FOR ORDER SHORTENING TIME RE MOTION FOR PERMISSION TO SERVE EXPERT REPORTS AFTER MAY 5,2008

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this issue, this District has. In Minnard v. Rotech Healthcare Inc., CIY. NO. S-06-1460 GEB
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CaL Jan. 15, 2008),

Honorable Gregory

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Pursuant to ex

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-3DECLARATION OF MARK A WASSER IN SUPPORT OF DEFENDANTS' EX PARTE APPLICATION FOR ORDER SHORTENING TIME RE MOTION FOR PERMISSION TO SERVE EXPERT REPORTS AFTER MAY 5,2008

13. A copy of

Wasser

permiSSJlOn to serve

expert reports after May 5, 2008 is attached hereto as Exhibit B. 14. Defendants respectfully suggest the following filing, service and hearing dates for the motion: Filing of Motion: Plaintiff's Opposition, if any: Defendants' Reply: Hearing on Motion: May 5, 2008. May 12,2008. WAIVED.

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15. Pursuant to Local Rule 6-144(b), one prior continuance was granted upon stipulation above. Defendants do not propose to modify

were

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-4DECLARATION OF MARK A. WASSER IN SUPPORT OF DEFENDANTS' EX PARTE APPLICATION FOR ORDER SHORTENING TIME RE MOTION FOR PERMISSION TO SERVE EXPERT REPORTS AFTER MAY 5,2008

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EXHIBIT A

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Mark A. Wasser CA SB #060160 LAW OFFICES OF MARK A. WASSER 11 4

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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA DAVID F. JADWIN, D.O.
Plaintiff, Case No.: 1:07-cv-00026 OWW TAG

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STIPULATION TO CONTINUE TRIAL AND PRE-TRIAL DATES AND ORDER
Complaint Filed: January 5, 2007 Trial Date: August 26, 2008

vs.

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COUNTY OF KERN, et aI.,
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Defendants. Note: Dates on last page have been changed 28 1 1 - - - - - - - - - - - - - - - - 1
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STIPULATION TO CONTINUE TRIAL AND PRE-TRIAL DATES AND ORDER

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with pdfFactory trial version www.pdffactorv.com

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WHEREAS discovery is taking substantially longer than the parties anticipated because

21 22 23 24 25 By: Dated: November 15, 2007 OFFICE OF EUGENE

lsi Eu ene D. Lee as authorized on 11/15/07
Eugene D. Lee Attorney for Plaintiff, David F. Jadwin, D.O.

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STIPULATION TO CONTINUE TRIAL AND PRE-TRIAL DATES AND ORDER

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ORDER

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stirlUlated as her,elmlbo1/e set

cause aDt)ear'im;: thel:elo r;
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STIPULATION TO CONTINUE TRIAL AND PRE-TRIAL DATES A"t\TD ORDER

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EXHIBITB

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Mark A. Wasser CA SB #060160 LAW OFFICES OF MARK A. WASSER 400 Capitol Mall, Suite 1100 Sacramento, CA 95814 6) 444-6400 444-6405

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January 6, 2007 Trial Date: December 3, 2008

TO PLAINTIFF AND HIS ATTORNEY OF RECORD: PLEASE TAKE NOTICE that, on , 2008 at a.m., or as soon

thereafter as the matter can be heard, in the courtroom of the above-referenced Court at , California, Defendants will, and hereby do, move the Court for an order granting them partial relief from the Scheduling Order. Specifically, Defendants request that the Court allow Defendants to serve the expert reports of the physicians who will
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DEFENDANTS' NOTICE OF MOTION AND MOTION FOR PERMISSION TO SERVE EXPERT REPORTS AFTER MAY 5, 2008

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perform the Rule 35 examination

Plaintiff after May 5, as soon as they can be prepared.

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Defendants request that they be permitted to serve the report of Dr. Olson-Buchanan on or

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Mark A. Wasser Attorney for Defendants, County of Kern, et al.

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DEFENDANTS' NOTICE OF MOTION AND MOTION FOR PERMISSION TO SERVE EXPERT REPORTS AFTER MAY 5, 2008

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Mark A. Wasser CA SB #060160 LAW OFFICES OF MARK A. WASSER 400 Capitol Mall, Suite 1100 Sacramento, CA 95814 6) "+44-0"+1.1I J 444-6405

) ) ) ) ) ) ) ) )

21 22 23 24 25 26 27 28 I, Mark A. Wasser, declare as follows: 1.

) Date Action Filed: January 6, 2007 ) Trial Date: December 3,2008 )

I am counsel of record for Defendants and I am familiar with this proceeding.

The facts in this declaration are true and correct of my own personal knowledge and I can testify competently to them if called as a witness.

-1DECLARATION OF MARK A. WASSER IN SUPPORT OF DEFENDANTS' MOTION FOR PERMISSION TO SERVE EXPERT REPORTS AFTER MAY 5, 2008

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2.

Defendants have retained three expert witnesses and have disclosed their names,

addresses, qualifications and hourly rates to Plaintiff, however, Defendants need additional time to nre:naJre serve

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35 eXamlIJlatH)ll

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Hollows discussed the interplay between Rule 26 and Rule 35 and, on the facts in Minnard, ruled that the Defendant could rely on information "including a Rule 35 examination, taken after designation and report issuance." Minnard, 2008 U.S. Dist. LEXIS 6149, at *11. Other Districts have split on the issue. See, e.g., Waggoner v. Ohio Central Railroad, Inc. 242 F.R.D. 413, 414 (S.D. OH, 2007); Furlong v. Circle Line Statute ofLiberty Ferry, Inc., 902 F.Supp. 65 (S.D.N.Y., 1995); and Shumaker v. West, 196 F.R.D. 454 (S.D.W.VA, 2000). 5. Thus, the reports of Dr. Burchuk and Dr. Sarkasian appear to be exempt from the

Rule 26 disclosure obligation. Defendants included these two physicians in their list of expert
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witnesses out of a desire for full disclosure even though the Rule 35 exams have not yet occurred. 6.

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DECLARAnON OF MARK A. WASSER IN SUPPORT OF DEFENDANTS' MOTION FOR PERMISSION TO SERVE EXPERT REPORTS AFTER MAY 5, 2008


								
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