Scheller v. American Medical Response, Inc. et al

Filing 117

STIPULATION and ORDER Permitting Parties to Present Testimony by Video Transmission signed by Judge Oliver W. Wanger on 6/27/2011. (Figueroa, O)

SanFrancisco

1
2
3
4
5

Scott M. Mahoney (State Bar No. 122254)
Jennifer K. Achtert (State Bar No. 197263)
FISHER & PHILLIPS LLP
One Embarcadero Center, Suite 2340
San Francisco, CA 94111-3712
Telephone: [phone]
Facsimile: [phone]
Attorneys for Defendant
AMERICAN MEDICAL RESPONSE, INC.

6
7
8
9

IN THE UNITED STATES DISTRICT COURT

10

FOR THE EASTERN DISTRICT OF CALIFORNIA

11

FRESNO DIVISION

12

KAREN SCHELLER,

13

Plaintiff,

14
15
16

Case No.: 1:08-CV-00798-OWW-DLB

v.

STIPULATION AND ORDER
PERMITTING PARTIES TO PRESENT
TESTIMONY BY VIDEO
TRANSMISSION

AMERICAN MEDICAL RESPONSE, INC., a
foreign corporation, CINDY WOOLSTON, an
individual, and DOES 1-25, inclusive,

17

Defendants.

18

Complaint Filed: February 20, 2008
Trial Date: July 12, 2011

19
Defendant American Medical Response, Inc. (“AMR”) and Plaintiff Karen Scheller

20
21

(“Scheller”), by and through their counsel, hereby move the Court pursuant to Federal Rules

22

of Civil Procedure 43(a) for an order allowing the parties, if they desire, to take the testimony

23

of Marvin H. Lipton, M.D., Michael Purnell, M.D., Ronald T. Whitmore, M.D., and/or Debra

24

Wilson, RNC, FNP, by contemporaneous video transmission from a different location.

25

This motion is based upon the records, pleadings, and papers on file herein, together

26

with the points and authorities set forth below.

27

///

28

///
___________________________________________________________________________________________________________________
STIP. AND ORDER PERMITTING TESTIMONY BY VIDEO
08-CV-00798 OWW DLB 1

116669.1

1
2

I.

LEGAL AUTHORITIES
Scheller’s lawsuit consists of a three related claims in a single cause of action. She

3

alleges discrimination based on disability, failure to accommodate a disability, and failure to

4

engage in the interactive process. Scheller was injured at work on January 20, 2005.

5

Following her injury, she obtained treatment from a number of medical providers, and

6

underwent an Independent Medical Examination in connection with her workers’

7

compensation claim.

8

Scheller obtained treatment from Michael Purnell, M.D. (an orthopedic surgeon, based

9

in Modesto), Ronald T. Whitmore, M.D. (occupational medicine, based in Sacramento), and

10

Debra Wilson, RNC, FNP (registered nurse, certified, and family nurse practitioner, based in

11

Modesto). She was examined by Marvin H. Lipton (an orthopedic surgeon, based in

12

Burlingame), who was acting as an Agreed Medical Examiner. Because these witnesses live

13

and work approximately some distance from the Courthouse (ranging from approximately

14

100 miles to approximately 184 miles), the parties seek the Court’s permission to present the

15

testimony of these witnesses by contemporaneous video transmission from the cities where

16

they are located. These witnesses were not deposed during discovery.

17

Federal Rules of Civil Procedure 43(a) provides: “For good cause in compelling

18

circumstances and with appropriate safeguards, the court may permit testimony in open court

19

by contemporaneous transmission from a different location.” While the Advisory Committee

20

Notes to the 1996 amendments to the rule which adopted this change may suggest that the

21

party seeking to present testimony in this manner has a high burden, subsequent Ninth Circuit

22

and other case law show that the burden is satisfied in this instance. See, e.g., Beltran-Tirado

23

v. Immigration and Naturalization Service (9th Cir. 2000) 213 F.3d 1179, 1185-86 (permitting

24

the use of telephonic testimony where witness not present in the jurisdiction and witness was

25

subject to cross-examination); Alderman v. Securities and Exchange Commission (9th Cir.

26

1997) 104 F.3d 285, 288 n4 (“Nor do we agree with [plaintiff’s] suggestion that the [Conduct

27

Committee’s] credibility findings are undermined because O'Hanley testified at the hearing

28

by telephone”); Official Airline Guides, Inc. v. Churchfield Publications, Inc. (D.Or. 1990)
___________________________________________________________________________________________________________________
STIP. AND ORDER PERMITTING TESTIMONY BY VIDEO
08-CV-00798 OWW DLB 2

116669.1

1

756 F.Supp. 1393, 1398 n2 (relying on telephonic testimony and noting that the Court had

2

“greater opportunity to evaluate the credibility of the witnesses through telephone testimony

3

than through deposition testimony), aff'd, (9th Cir. 1993) 6 F.3d 1385; see also Federal Trade

4

Commission v. Swedish Match North America, Inc., (D. D.C. 2000) 197 F.R.D. 1, 2 (“More

5

importantly, however, the use of live video transmission will not prejudice the defendants

6

because adequate safeguards exist to protect the procedure.”)

7

Cross-examination will be available in this case, and the Court and jury will have the

8

opportunity to evaluate the credibility of the witnesses through video testimony. On the other

9

hand, there would be considerable expense associated with these witnesses having to travel to

10

Fresno to testify at trial, as well as likely disruption to their lives for a full day or longer for

11

the purpose of presenting two hours or less of testimony. The possibility of this motion was

12

mentioned at the Pretrial Conference, and mentioned in the Pretrial Order.

13

II.

14

CONCLUSION
Based on the foregoing, the parties respectfully request the Court enter an order that

15

they may, if they desire, take the testimony of Marvin H. Lipton, M.D., Michael Purnell,

16

M.D., Ronald T. Whitmore, M.D., and/or Debra Wilson, RNC, FNP, by contemporaneous

17

video transmission from a different location.

18
19

DATED: June 23, 2011

FISHER & PHILLIPS LLP

20
By: /s/ Jennifer K. Achtert______________
Jennifer K. Achtert
Attorneys for Defendant
AMERICAN MEDICAL RESPONSE, INC.

21
22
23

DATED: June 23, 2011

GIANELLI & ASSOCIATES LLP

24
25
26

By: /s/ Brett Dickerson, as authorized 6/23/11_
Brett Dickerson
Attorneys for Plaintiff
KAREN SCHELLER

27
28
___________________________________________________________________________________________________________________
STIP. AND ORDER PERMITTING TESTIMONY BY VIDEO
08-CV-00798 OWW DLB 3

116669.1

1

ORDER

2

Based upon the stipulation of the Parties and good cause having been shown, it is

3

hereby ORDERED that the parties may, if they desire, take the testimony of Marvin H. Lipton,

4

M.D., Michael Purnell, M.D., Ronald T. Whitmore, M.D., and/or Debra Wilson, RNC, FNP, by

5

contemporaneous video transmission from a different location.

6
7

IT IS SO ORDERED.

8
9
10

Dated:

June 27, 2011

/s/ Oliver W. Wanger
UNITED STATES DISTRICT JUDGE

DEAC_Signature-END:

emm0d64h

11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
___________________________________________________________________________________________________________________
STIP. AND ORDER PERMITTING TESTIMONY BY VIDEO
08-CV-00798 OWW DLB 4