Hall v. Provident Life and Accident Insurance Company

Filing 81

ORDER re 80 Stipulation filed by Margaret Hall. Signed by Judge Charles R. Breyer on 4/8/2010. (be, COURT STAFF) (Filed on 4/12/2010)

1 THOMAS M. HERLIHY (SBN 83615) Email: [e-mail] 2 FRANCIS TORRENCE (SBN 154653) Email: francis.torrence(g),wilsonelser.com 3 WILSON, ELSER, MOSKOWITZ, EDELMAN & DICKER LLP th 4 525 Market Street, 17 Floor San Francisco, California 94105 Telephone: [phone] Facsimile: [phone] 6 Attorneys for Defendant PROVIDENT LIFE AND ACCIDENT INSURANCE COMPANY 7 8 J. DAVID OSWALT (SBN 073439) Email: [e-mail] 9 CHRISTINA J. SMITH (SBN 193509) Email: [e-mail] 10 KANTOR & KANTOR 19839 Nordhoff Street 11 Northridge, California 91324 [phone] 12 Telephone: Facsimile: [phone] 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiff Margaret Hall and defendant Provident Life and Accident Insurance Company ("Provident"), through their respective counsel, stipulate with respect to the following facts: vs. PROVIDENT LIFE AND ACCIDENT INSURANCE COMPANY, Defendant MARGARET HALL, Plaintiff, UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION ) Case No.: CV08 0114CRB
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STIPULATION REGARDING THE DEPOSITIONS OF DR. E. GARY STARR AND MARY FULLER AND [PROPOSED] ORDER THEREON

STIPULATION REGARDING THE DEPOSITIONS OF DR. E. GARY STARR AND MARY FULLER USDC NDCA Case No.: CV 08 0114 CRB 480091.1

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1.

Dr. E. Gary Starr is a physiatrist with an office in Reno, Nevada. On October 1,

2007, Dr. Starr performed an independent medical examination of Plaintiff at the request of Provident. Provident relied upon Dr. Starr's report of the examination in deciding to terminate Plaintiffs disability benefits. 2. Plaintiff served a deposition subpoena on Dr. Starr scheduling his deposition for

January 19, 2010. 3. Prior to the deposition, Dr. Starr's office demanded a deposition fee of $2,500 per

hour. Plaintiffs counsel contend that they negotiated an agreement with Dr. Starr's office whereby he would appear for his deposition for a deposition fee of $1,000 per hour. Prior to the deposition, Plaintiffs counsel paid Dr. Starr $1,000 for the first hour of the deposition. 4. On January 19, 2010, counsel for Plaintiff and Provident traveled to Reno,

12 Nevada, for Dr. Starr's deposition. Dr. Starr appeared for his deposition, but left after thirty 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 minutes stating: You purchased a half an hour of my time. So we made arrangements in the office that I would have patients after that. So, when you sent us a check for a thousand dollars, that was your request to buy a half an hour. So we have patients. So I need to go. (January 19, 2010 Deposition of Edward Gary Starr, M.D., at 17:14-17.) 5. Plaintiff then filed a Petition and Application for an Order to Show Cause

Regarding the Deposition of Dr. E. Gary Starr with the United States District Court for the District of Nevada, which was assigned Case No. 3:10-cv-00075 ("the OSC Action"). In the OSC Action, plaintiff seeks an order compelling Dr. Starr to appear for a deposition at a date and time set by the Court and awarding Plaintiff her actual losses incurred as a result of Dr. Starr's failure to comply with the deposition subpoena. 6. On February 19, 2010, Magistrate Judge Valerie P. Cooke entered an order in the

OSC Action directing Dr. Starr to appear on March 29, 2010, to show cause why he should not be held in contempt for his violation of the deposition subpoena and why Plaintiff should not be awarded compensatory damages, including costs and expenses incurred in connection with the

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STIPULATION TO REGARDING THE DEPOSITONS OF DR. E. GARY STARR AND MARY FULLER USDC NDCA Case No.: CV 08 0114 CRB

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January 19, 2010 deposition and the costs and expenses incurred in bringing the OSC Action. The hearing on the order to show cause has been continued to April 12, 2010. 7. action. 8. The deposition of Mary Fuller, one of Plaintiff s designated expert witnesses, was On February 23, 2010, Provident designated Dr. Starr as an expert witness in this

originally scheduled for March 19, 2010 in Portland, ME. The parties have agreed to reschedule that deposition for a mutually convenient date that may be after the expert discovery cut-off date of April 1,2010. THEREFORE, Plaintiff and Provident, through their respective counsel, stipulate as follows: 1. Provident will notice Dr. Starr's deposition at his office or another location in

Reno, Nevada on a date that is mutually convenient for counsel for Plaintiff and Provident. 2. April 1,2010. 3. Provident will pay Dr. Starr's deposition fee for a four hour deposition at a rate The deposition of Dr. Starr may be taken after the expert discovery cut-off date of

not to exceed a maximum of $6,000. 4. Plaintiffs counsel will exam Dr. Starr first and will have up to three hours to

complete the examination. Plaintiffs counsel may reserve a portion of the three hours for additional questions after the examination by Provident's counsel. 5. 6. Provident's counsel will then depose Dr. Starr for up to one hour. Provident will videotape the deposition and the parties agree that the deposition

can be used at trial in lieu of live testimony, subject to evidentiary objections. 7. Plaintiff will promptly dismiss the OSC Action.

STIPULATION TO REGARDING THE DEPOSITONS OF DR. E. GARY STARR AND MARY FULLER USDC NDCA Case No.: CV 08 0114 CRB

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8.

The deposition of Mary Fuller may be taken after the expert discovery cut-off

date of April 1,2010. Dated: April 6, 2010 WILSON, ELSER, MOSKOWITZ, EDELMAN & DICKER LLP

/s/ Thomas M. Herlihy By:. Thomas M. Herlihy Francis J. Torrence Lisa S. Passalacqua Attorneys for Defendant Provident Life and Accident Insurance Company

Dated: April 6, 2010

ICANTOR & KANTOR LLP /s/ J. David Oswalt By:_ J. David Oswalt Attorneys for Plaintiff Margaret Hall

ORDER PURSUANT TO STIPULATION, IT IS ORDERED that: 1. Provident will notice Dr. Starr's deposition at his office or another location in

Reno, Nevada on a date that is mutually convenient for counsel for Plaintiff and Provident. 2. April 1,2010. 3. Provident will pay Dr. Starr's deposition fee for a four hour deposition at a rate The deposition of Dr. Starr may be taken after the expert discovery cut-off date of

not to exceed a maximum of $6,000. 4. Plaintiffs counsel will exam Dr. Starr first and will have up to three hours to

complete the examination. Plaintiffs counsel may reserve a portion of the three hours for additional questions after the examination by Provident's counsel.

STIPULATION TO REGARDING THE DEPOSITONS OF DR. E. GARY STARR AND MARY FULLER USDC NDCA Case No.: CV 08 0114 CRB

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5. 6.

Provident's counsel will then depose Dr. Starr for up to one hour. Provident will videotape the deposition and the parties agree that the deposition

can be used at trial in lieu of live testimony, subject to evidentiary objections. 7. 8. Plaintiff will promptly dismiss the OSC Action. The deposition of Mary Fuller may be taken after the expert discovery cut-off

date of April 1,2010.

UNIT ED

April 8

,2010

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S DISTRICT TE C TA

United States District ED Judge

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STIPULATION TO REGARDING THE DEPOSITONS OF DR. E. GARY STARR AND MARY FULLER USDC NDCA Case No.: CV 08 0114 CRB

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