Smith v. Barrow Neurological Institute et al
Filing
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ORDER denying 178 Defendants' Motion for Time Enlargement and 179 Motion for Case Management Conference and 180 Supplement. See PDF for details.Signed by Judge Frederick J Martone on 07/19/12.(JAMA)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE DISTRICT OF ARIZONA
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Leanna Smith,
Plaintiff,
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vs.
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Barrow Neurological Institute et al,
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Defendant.
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No. CV 10-1632-PHX-FJM
ORDER
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The court has before it Defendants' Joint Motion for Time Enlargement (doc. 178),
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Defendants' Joint Motion for Case Management Conference (doc. 179), and the Barrow
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defendants' Supplement to Request for Time Enlargement (doc. 180).
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This action is now almost two years old. Judge Campbell's Case Management Order
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of January 17, 2012 (doc. 104) noted that it needed to be fully resolved "within three years
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of the August 2010 removal to this Court". Order of Jan 17, 2012 at 1. His order set forth
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generous and reasonable deadlines: Discovery-October 26, 2012; Expert Disclosures- July
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6, 2012, August 17, 2012 and September 14, 2012; and, Dispositive Motions- November 16,
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2012. The order then advised the parties that "The Deadlines are Real". Order of Jan. 17,
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2012 at 5.
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On March 16, 2012, the case was reassigned to the undersigned. (Doc. 124).
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Concerned about the age of the case, on March 21, 2012, we entered an order that advised
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the parties that because Judge Campbell's case management order was more than adequate
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to bring this case to a conclusion, there would "be no extensions granted to the deadlines in
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the order." Order of Mar. 21, 2012 at 2 (doc. 125).
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Defendants contend they need more time because plaintiff has failed to comply with
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the expert witness deadline. But the remedy for that is exclusion of expert witnesses. If the
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Rule 16 Order were subject to amendment every time a party failed to comply with it, the
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order would be worthless. Defendants contend that plaintiff has disclosed 250 treating
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physicians as potential experts and they need to know now what they must respond to. Of
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course, plaintiff has an obligation to very accurately identify who will actually be called.
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Judge Campbell's Order limits each side to one retained or specially employed expert per
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issue. Order of Jan. 17, 2012 at 3. And counsel for plaintiff has an obligation of candor to
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opposing counsel with respect to the witnesses and exhibits that will actually be used. This
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court will limit the parties to a limited number of trial days. See Rule 16(c)(2)(O), Fed. R.
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Civ. P. This alone will require counsel to realistically assess their witness lists. It is absurd
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to think that 250 witnesses will be called. They will not be allowed.
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Defendants argue that plaintiff intends to disclose "years" worth of medical records
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that need to be assessed. But if plaintiff has failed to comply with her disclosure or discovery
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obligations, sanctions, up to dismissal of the claim, are available. Again, a non-compliant
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party or lawyer has no right to upset the schedule. They just expose themselves to potential
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dismissal, default, exclusion and the like.
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Defendants argue that they have a motion for summary judgment pending. But it was
just ripe on June 22, 2012. It will be decided in due course.
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Finally, counsel for the Barrow defendants advise us of surgery which will take her
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out of action for a few weeks in August. We are, of course, sensitive to medical issues. But
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a few weeks in a case this old is not significant. Moreover, the Barrow defendants are
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represented by more than one lawyer–the other lawyer or lawyers can cover during the
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affected weeks.
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Counsel need to cooperate with each other in a professional way. If they do so, the
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schedule in this case is far more than adequate. If they do not, some litigant or lawyer,
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depending on whom is at fault, will bear the consequence. Non-compliance is not an option.
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Once we resolve the pending motion for summary judgment, and other motions for
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summary judgment, if at that point any claim is still standing we will issue a final supplement
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to the schedule, setting forth the dates for the submission of a proposed pre-trial order, a final
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pre-trial conference, and a firm trial date. We encourage, once again, the early filing of
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motions for summary judgment.
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For all of these reasons, it is ORDERED DENYING Defendants' Motion for Time
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Enlargement (doc. 178), Motion for Case Management Conference (doc. 179), and
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Supplement (doc. 180).
DATED this 19th day of July, 2012.
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