Case 1:07-cv-00026-OWW-TAG Document 118 Filed 05/05/2008 Page 1 of 14

Mark A. Wasser, CA SB #060160

1 LAW OFFICES OF MARK A. WASSER
400 Capitol Mall, Suite 1100
2 Sacramento, CA 95814
6) qqq-OqlJU
444-6405

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21 ) Date Action Filed: January 6, 2007
) Trial Date: December 3, 2008
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24 I, Mark A. Wasser, declare as follows:
25 1. I am counsel of record for Defendants and I am familiar with this proceeding.
26 facts in this declaration are true and correct of my own personal knowledge and I can testify
27 competently to them if called as a witness.
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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
 Case 1:07-cv-00026-OWW-TAG Document 118 Filed 05/05/2008 Page 2 of 14

1 2. The original scheduling order (filed May 31,2007) was modified by stipulation of

2 Court on November 20, 2007 ("Scheduling Order"). A true and correct

4 wrtne:ss(~s are to Clls,ClOsea on 5, a

names,

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Olson-Buchanan can cornpJ,ete to

21 focused on Defendants' affirmative defenses and Plaintiff has done little to develop any evidence
22 to support the allegations in his complaint.

23 7. Defendants intend to schedule the examination of Plaintiff, either by noticed motion

24 under Rule 35 or stipulation, before the Supplemental Disclosure on June 4, 2008. The reports

25 should be available shortly after the examinations.

26 8. It is not clear that the reports of examining physicians are subject to the disclosure
27 requirements of Rule 26(a)(2)(B). Although the Ninth Circuit does not appear to have addressed

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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
 Case 1:07-cv-00026-OWW-TAG Document 118 Filed 05/05/2008 Page 3 of 14

1 this issue, this District has. In Minnard v. Rotech Healthcare Inc., CIY. NO. S-06-1460 GEB
LJLd'UU 6 -r /." ,.U CaL Jan. 15, 2008), Honorable Gregory
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Pursuant to
ex

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20 13. A copy of Wasser permiSSJlOn to serve

21 expert reports after May 5, 2008 is attached hereto as Exhibit B.

22 14. Defendants respectfully suggest the following filing, service and hearing dates for the

23 motion:
24 Filing of Motion: May 5, 2008.

25 Plaintiff's Opposition, if any: May 12,2008.

26 Defendants' Reply: WAIVED.

27 Hearing on Motion:

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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
 Case 1:07-cv-00026-OWW-TAG Document 118 Filed 05/05/2008 Page 4 of 14

1 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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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
Case 1:07-cv-00026-OWW-TAG Document 118 Filed 05/05/2008 Page 5 of 14

EXHIBIT A
 1 •
Case 1:07-cv-00026-OWW-TAG Document 118
•
Filed 05/05/2008
11/20/2007
Page 6 of 14
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1 Mark A. Wasser CA SB #060160

LAW OFFICES OF MARK A. WASSER
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21 UNITED STATES DISTRICT COURT

22 EASTERN DISTRICT OF CALIFORNIA
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DAVID F. JADWIN, D.O. Case No.: 1:07-cv-00026 OWW TAG
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Plaintiff, STIPULATION TO CONTINUE TRIAL
25 AND PRE-TRIAL DATES AND ORDER
vs.
26 Complaint Filed: January 5, 2007
COUNTY OF KERN, et aI., Trial Date: August 26, 2008
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Defendants. Note: Dates on last page have been changed
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STIPULATION TO CONTINUE TRIAL AND PRE-TRIAL DATES AND ORDER

PDF with pdfFactory trial version www.pdffactorv.com

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Case 1:07-cv-00026-OWW-TAG Document 118 Filed 05/05/2008 Page 7 of 14
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1 WHEREAS discovery is taking substantially longer than the parties anticipated because

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22 Dated: November 15, 2007 OFFICE OF EUGENE

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24 By: lsi Eu ene D. Lee as authorized on 11/15/07

Eugene D. Lee
25 Attorney for Plaintiff, David F. Jadwin, D.O.
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27

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STIPULATION TO CONTINUE TRIAL AND PRE-TRIAL DATES AND ORDER

PDF with pdfFactory trial version www.pdffactory.com

 Case 1:07-cv-00026-OWW-TAG
• Document 118
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Filed 05/05/2008
Filed 11/20/2007
Page 8 of 14
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ORDER

2 n"rties n:-l\i'lflV stirlUlated as her,elmlbo1/e set cause aDt)ear'im;: thel:elo r;

i

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STIPULATION TO CONTINUE TRIAL AND PRE-TRIAL DATES A"t\TD ORDER

PDF with pdfFactory trial version www.pdffactory.com

Case 1:07-cv-00026-OWW-TAG Document 118 Filed 05/05/2008 Page 9 of 14

EXHIBITB
 Case 1:07-cv-00026-OWW-TAG Document 118 Filed 05/05/2008 Page 10 of 14

1 Mark A. Wasser CA SB #060160

LAW OFFICES OF MARK A. WASSER
2 400 Capitol Mall, Suite 1100
Sacramento, CA 95814
3 6) 444-6400
444-6405

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January 6, 2007
21 Trial Date: December 3, 2008

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23 TO PLAINTIFF AND HIS ATTORNEY OF RECORD:

24 PLEASE TAKE NOTICE that, on , 2008 at a.m., or as soon

25 thereafter as the matter can be heard, in the courtroom of the above-referenced Court at
26 , California, Defendants will, and hereby do, move the Court for
27 an order granting them partial relief from the Scheduling Order. Specifically, Defendants
28 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
 Case 1:07-cv-00026-OWW-TAG Document 118 Filed 05/05/2008 Page 11 of 14

1 perform the Rule 35 examination Plaintiff after May 5, as soon as they can be prepared.

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

21 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
 Case 1:07-cv-00026-OWW-TAG Document 118 Filed 05/05/2008 Page 12 of 14

1 Mark A. Wasser CA SB #060160

LAW OFFICES OF MARK A. WASSER
2 400 Capitol Mall, Suite 1100
Sacramento, CA 95814
3 6) "+44-0"+1.1I J
444-6405

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) Date Action Filed: January 6, 2007
21 ) Trial Date: December 3,2008
)
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24 I, Mark A. Wasser, declare as follows:

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

26 The facts in this declaration are true and correct of my own personal knowledge and I can testify

27 competently to them if called as a witness.

28
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DECLARATION OF MARK A. WASSER IN SUPPORT OF DEFENDANTS' MOTION

FOR PERMISSION TO SERVE EXPERT REPORTS AFTER MAY 5, 2008
 Case 1:07-cv-00026-OWW-TAG Document 118 Filed 05/05/2008 Page 13 of 14

1 2. Defendants have retained three expert witnesses and have disclosed their names,

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

7 35 eXamlIJlatH)ll

21 Hollows discussed the interplay between Rule 26 and Rule 35 and, on the facts in Minnard, ruled

22 that the Defendant could rely on information "including a Rule 35 examination, taken after

23 designation and report issuance." Minnard, 2008 U.S. Dist. LEXIS 6149, at *11. Other Districts

24 have split on the issue. See, e.g., Waggoner v. Ohio Central Railroad, Inc. 242 F.R.D. 413, 414

25 (S.D. OH, 2007); Furlong v. Circle Line Statute ofLiberty Ferry, Inc., 902 F.Supp. 65

26 (S.D.N.Y., 1995); and Shumaker v. West, 196 F.R.D. 454 (S.D.W.VA, 2000).

27 5. Thus, the reports of Dr. Burchuk and Dr. Sarkasian appear to be exempt from the

28 Rule 26 disclosure obligation. Defendants included these two physicians in their list of expert
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DECLARATION OF MARK A. WASSER IN SUPPORT OF DEFENDANTS' MOTION

FOR PERMISSION TO SERVE EXPERT REPORTS AFTER MAY 5, 2008
 Case 1:07-cv-00026-OWW-TAG Document 118 Filed 05/05/2008 Page 14 of 14

1 witnesses out of a desire for full disclosure even though the Rule 35 exams have not yet
2 occurred.
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DECLARAnON OF MARK A. WASSER IN SUPPORT OF DEFENDANTS' MOTION

FOR PERMISSION TO SERVE EXPERT REPORTS AFTER MAY 5, 2008