McKenzie v. Truckee Tahoe Airport District

Filing 24

ORDER signed by Judge John A. Mendez on 4/7/15 modifying the 6/20/14 Status (Pre-trial Scheduling) Order as follows: Expert Witness Disclosures due on 10/23/2015. Supplemental Expert Witness Disclosures due on 10/30/2015. All Discovery completed by 12/31/2015. All Dispositive Motions filed by 2/10/2016. Hearing on dispositive motions on 3/9/2016 at 9:30 a.m.. Joint pretrial statement due on or before 4/15/2016. Final Pretrial Conference set for 4/22/2016 at 11:00 AM in Courtroom 6 (JAM) before Judge John A. Mendez. Jury Trial (5-7 days) set for 6/6/2016 at 09:00 AM in Courtroom 6 (JAM) before Judge John A. Mendez. (Kastilahn, A)

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1 2 3 4 REID, AXELROD Donald S. Honigman, SB# 106914 315 Montgomery Street, Suite 800 San Francisco, CA 94104 Phone: (415) 451-3300 Fax: (415) 451-3307 5 6 7 Attorneys for Defendant TRUCKEE TAHOE AIRPORT DISTRICT, a public entity 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 12 13 CASE NO.: 2:14-cv-00480-JAM-DAD AUDREY McKENZIE, Plaintiff, 14 JOINT REQUEST FOR MODIFICATION OF SCHEDULING ORDER DEADLINES AND ORDER vs. 15 16 TRUCKEE TAHOE AIRPORT DISTRICT, a public entity, and DOES 1-20, inclusive, Hon. John A. Mendez, United States District Judge 17 18 Defendants. ______________________________________/ 19 COMES NOW the undersigned parties, by and through their respective undersigned 20 counsel of record, to respectfully request that the Court modify the deadlines in its June 20, 2014 21 Pre-trial Scheduling Order. The parties request that all dates, including the February 1, 2016, 22 Trial, be continued at least 120 days to allow adequate time for discovery. 23 Federal Rules of Civil Procedure, Rule 16(b)(4) provides that "a schedule may be 24 modified only for good cause and with the judge's consent". Good cause for the modification 25 exists here because despite the diligence of the parties the current schedule cannot reasonably be 26 met. More specifically, the parties are unable to complete all necessary discovery by the June 27 19, 2015 deadline for expert witness disclosures and the August 28, 2015, deadline for 28 completion of all discovery. ___________________________________________________________________________________________________ Joint Request for Modification of Scheduling Order Deadlines and [Proposed] Order -1- 1 To date, discovery has been delayed due to the inability of Defendant to obtain 2 Plaintiff’s extensive medical records from Plaintiff’s out of state medical care providers, 3 including the Department of Veterans Affairs (VA Sierra Nevada Health Care System) in Reno, 4 Nevada. Defendant is informed that the Veteran’s Administration will not release Plaintiff’s 5 medical records without Plaintiff’s authorization. Thus, Defendant immediately requested that 6 Plaintiff provide the required signed Authorization. 7 The parties have met and conferred and Plaintiff has now agreed to immediately provide 8 Defendant with her signed Authorizations for the release of her medical records. In addition, in 9 order to facilitate the production of Plaintiff’s medical records, and address any of the medical 10 care providers HIPPAA concerns, the parties recently submitted a Proposed Protective Order to 11 the Court which the Court entered. 12 With an Authorization from Plaintiff, and a Protective Order in place, Defendant should 13 be able to obtain Plaintiff’s medical records from the Veteran’s Administration. However, based 14 upon past experience, the Veterans Administration is likely to be very slow in producing 15 Plaintiff’s medical records. Only upon receipt of Plaintiff’s medical records will the parties will 16 be able to proceed with their remaining required discovery, including plaintiff’s deposition and 17 expert discovery. Plaintiff’s counsel reports plaintiff is still treating. Additional good cause 18 exists to modify the scheduling order because, as discussed below, Plaintiff intends to request 19 leave of Court to name an additional Defendant. 20 A. 21 Plaintiff Audrey McKenzie alleges the following: Plaintiff was a spectator at an air show 22 at the Truckee Tahoe Airport. She was in the spectator area near where aircraft were on static 23 display. She took a step backward and fell over a block used to keep the planes in place that had 24 been left in the spectator area. She struck her head, suffered a concussion, post-concussion 25 syndrome, right temporal lobe damage. Her injuries forced her to drop out of the final semester 26 of her master's program and her treatment is continuing. 27 B. Plaintiff Alleges Continuing Medical Treatment for her Alleged Injuries: The Court’s June 20, 2014 Pre-trial Scheduling Order: 28 ___________________________________________________________________________________________________ Joint Request for Modification of Scheduling Order Deadlines and [Proposed] Order -2- 1 2 On June 20, 2014 the Court issued its STATUS (Pre-trial Scheduling) ORDER. After review of the parties’ Joint Status Report, the Court scheduled the following: 3 June 19, 2015. Expert Witness Disclosures. 4 June 26, 2015. Supplemental Expert Witness Disclosures. 5 August 28, 2015. All Discovery completed. 6 October 7, 2015. All dispositive motions filed; 7 November 4, 2015, at 9:30 a.m. Hearing on dispositive motions. 8 December 18, 2015, at 10:00 a.m. Final Pre-Trial Conference 9 February 1, 2016, at 9:00 a.m. Jury Trial (5-7 days). 10 11 C. The Parties Request Additional Time to Conduct Discovery: 12 Defendant TRUCKEE TAHOE AIRPORT DISTRICT has made diligent efforts to 13 determine the nature, extent and cause of plaintiff’s alleged injuries and damages. However, to 14 date, Defendant has been unable to obtain Plaintiff’s medical records from Plaintiff’s out of state 15 medical care providers, including the Department of Veterans Affairs (VA Sierra Nevada Health 16 Care System) in Reno, Nevada, without Plaintiff’s signed authorization. 17 The parties have met and conferred and Plaintiff has now agreed to immediately provide 18 Defendant with her signed Authorizations for the release of her medical records. In addition, in 19 order to facilitate the production of Plaintiff’s medical records, and address any of the medical 20 care provider’s HIPPAA concerns, the parties recently submitted a Proposed Protective Order to 21 the Court. 22 With an Authorization from Plaintiff, and a Protective Order in place, Defendant should 23 be able to obtain Plaintiff’s medical records from the Veteran’s Administration. However, based 24 upon past experience, the Veterans Administration is likely to be very slow in producing 25 Plaintiff’s medical records. Only upon receipt of Plaintiff’s medical records will the parties will 26 be able to proceed with their remaining required discovery, including the deposition of Plaintiff 27 Audrey McKenzie, as well as the depositions of Plaintiff’s fiancé and son who were allegedly 28 present at the time of the incident, and expert discovery. ___________________________________________________________________________________________________ Joint Request for Modification of Scheduling Order Deadlines and [Proposed] Order -3- 1 Plaintiff’s counsel represents that Plaintiff is continuing to receive medical treatment for 2 her alleged injuries. Thus, no party will be prejudiced by a modification of the pretrial 3 scheduling order. In fact, greater time is needed to allow the parties to properly assess Plaintiff’s 4 alleged damages, her current medical condition, and her prognosis. 5 6 D. Plaintiff Requests Additional Time to Investigate a Potential Defendant: 7 Plaintiff is currently considering whether to seek leave of Court to amend the First 8 Amended Complaint to name the Experimental Aircraft Association Chapter 1073 as a 9 Defendant. Plaintiff believes that the Experimental Aircraft Association may have been involved 10 in the incident. Modification of the Pretrial Scheduling Order would provide Plaintiff with 11 additional time to investigate the involvement, if any, of the Experimental Aircraft Association. 12 This would enable Plaintiff to determine whether or not the Association should be named as a 13 defendant in this action. 14 15 E. 16 Based on the above, the parties respectfully request that the Court modify the deadlines in 17 its June 20, 2014 Pre-trial Scheduling Order. The parties request that all dates, including the 18 February 1, 2016, Trial, be continued at least 120 days to allow adequate time for discovery. Conclusion: 19 20 21 DATED: April 7, 2015 CASEY, GERRY, SCHENK, FRANCAVILLA, BLATT & PENFIELD, LLP 22 23 /s/ Scott C. Cummins 24 25 DATED: April 7, 2015 REID, AXELROD 26 27 /s/ Donald S. Honigman 28 ___________________________________________________________________________________________________ Joint Request for Modification of Scheduling Order Deadlines and [Proposed] Order -4- 1 [PROPOSED] ORDER MODIFYING SCHEDULING ORDER DEADLINES 2 3 4 For good cause the Court’s June 20, 2014 STATUS (Pre-trial Scheduling) ORDER is modified as follows: 5 6 Expert Witness Disclosures on 10/23/2015. 7 8 Supplemental Expert Witness Disclosures on 10/30/2015. 9 10 All Discovery completed by 12/31/2015. 11 12 All dispositive motions filed by 2/10/2016. 13 14 Hearing on dispositive motions on 3/9/2016 at 9:30 a.m. 15 16 Joint pretrial statement due on or before 4/15/2016. 17 18 Final Pre-Trial Conference on 4/22/2016 at 11:00 a.m. 19 20 Jury Trial (5-7 days) on 6/6/2016 at 9:00 a.m. 21 22 IT IS SO ORDERED. 23 24 Dated: 4/7/2015 /s/ John A. Mendez______________ United States District Court Judge 25 26 27 28 ___________________________________________________________________________________________________ Joint Request for Modification of Scheduling Order Deadlines and [Proposed] Order -5-

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