Ambroff et al v. American Medical Systems, Inc.

Filing 78

ORDER MODIFYING PRE-TRIAL ORDER re 77 Order. Signed by Judge JAMES LARSON on 8/12/10. (jlsec, COURT STAFF) (Filed on 8/12/2010)

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KENNEY
Ken M. Markowitz E-mail: [e-mail] Kimberly I. McIntyre E-mail: [e-mail]

&

MARKOWITZ
L.L.P.
ATTORNEYS AT LAW

Telephone: [phone] Facsimile: 415 397-3170 Web site: http://www.kennmark.com

255 California Street, Suite 1300 San Francisco, California 94111

August 9, 2010 VIA E-FILING

Magistrate Judge James Larson UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA 450 Golden Gate Avenue Courtroom F, 15th Floor San Francisco, CA 94102 Re: TERRY AND ELLEN AMBROFF v. AMERICAN MEDICAL SYSTEMS, INC. U.S.D.C., Northern District Case No. C08-04289 JL Our File No: 302053-45/35

Dear Magistrate Judge Larson: This letter is to follow up on our appearance at the August 4, 2010 Further Case Management Conference, where we discussed an extension of the dates, including the trial date, in this matter. Subsequent to the Case Management Conference, we met and conferred to prepare the enclosed Stipulation addressing the dates discussed with the Court. We appreciate the Court's flexibility in allowing us to try this case before the Court, in accordance with the Court's schedule, and, upon further discussion, we believe that we can get this case tried to verdict in two and one-half weeks. On August 5, 2010, we contacted your Courtroom Deputy, Frank Justiliano, to inquire whether we could start trial in this matter on a day other than a Monday. Mr. Justiliano indicated that the Court would entertain such a request, and he instructed us to put our request in a letter,

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Magistrate Judge James Larson August 9, 2010 Page 2

KENNEY & MARKOWITZ
L.L.P.

which we do here. As set forth in the enclosed Stipulation, we are proposing that trial in this case commence on Thursday, May 12, 2011, assuming the Court is available. Thank you for your attention to this matter, as well as for the interest you expressed at the Case Management Conference in seeing this case through to completion. Yours very truly, /s/ Kimberly I. McIntyre KEN M. MARKOWITZ KIMBERLY I. MCINTYRE Attorneys for Defendant AMERICAN MEDICAL SYSTEMS, INC. Yours very truly, /s/ Amy Eskin AMY ESKIN MARK BURTON Attorneys for Plaintiffs ELLEN and TERRY AMBROFF KIM/njc Enclosure

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AMY ESKIN, ESQ., State Bar No. 127668 HERSH & HERSH, A Professional Corporation 601 Van Ness Avenue, Suite 2080 San Francisco, CA 94102-6388 Tel: [phone] Fax: [phone] Email: [e-mail] Attorneys for Plaintiffs ELLEN and TERRY AMBROFF KEN M. MARKOWITZ, ESQ., State Bar No. 104674 KIMBERLY MCINTYRE, ESQ., State Bar No. 184648 KENNEY & MARKOWITZ, L.L.P 255 California Street, Suite 1300 San Francisco, CA 94111 Tel: [phone] Fax: [phone] Email: [e-mail] [e-mail] Attorneys for Defendant AMERICAN MEDICAL SYSTEMS, INC. DAN JOHNSON (Pro Hac Vice) AMERICAN MEDICAL SYSTEMS, INC. 10700 Bren Road West Minnetonka, MN 55343 Tel: [phone] Fax: [phone] Email: [e-mail] Attorneys for Defendant AMERICAN MEDICAL SYSTEMS, INC. IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO ­ ECF PROGRAM

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ELLEN AMBROFF and TERRY AMBROFF, Plaintiffs, vs. AMERICAN MEDICAL SYSTEMS, McKESSON CORPORATION, and DOES ONE through TWENTY-FIVE, inclusive, Defendants.

) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

CASE NUMBER C 08-04289 JL STIPULATION AND [PROPOSED] ORDER TO MODIFY PRE-TRIAL ORDER Civ.L.R. 7-12

This Stipulation is entered into between Plaintiffs Ellen Ambroff and Terry Ambroff, by and through their counsel of record, Hersh & Hersh, and defendant American Medical Systems, Inc., by and through its counsel of record, Kenney & Markowitz, L.L.P. The parties stipulate as follows: 1. On June 29, 2009, this Court issued its first Case Management and

Pre-Trial Order in this case with a trial date of December 6, 2010 and other dates set by the Court accordingly, including a factual discovery cut-off date of April 5, 2010. 2. On February 1, 2010, the parties stipulated to a modification of the

June 29 Pre-Trial Order to extend discovery and related cut-off dates because additional time was required to schedule plaintiffs' Rule 30(b)(6) depositions. The court approved the parties' stipulation for modification of the Pre-Trial Order on February 3, 2010, setting a close of fact discovery for June 4, 2010. 3. Some of plaintiffs' Rule 30(b)(6) depositions were taken during the

week of March 1, 2010 at AMS' corporate office in Minnesota, however not all of AMS' designated witnesses were available during the scheduled week. Plaintiffs thus requested and defendant agreed to produce four additional AMS employees for deposition in Minnesota.
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4.

On May 10, 2010, the parties stipulated to a modification of the

February 3, 2010 Pre-Trial Order to extend discovery and related cut-off dates for several reasons. First, plaintiffs wished to take additional depositions of AMS employees pursuant to Federal Rule of Civil Procedure 30(b)(6) and there was difficulty getting these depositions scheduled because lead trial counsel for AMS was unavailable for several weeks in May due to a previously scheduled vacation making it difficult to schedule those depositions in Minnesota prior to the fact discovery cut-off date of June 4, 2010. The stipulation was also based on the fact that there were difficulties scheduling the deposition of plaintiff Ellen Ambroff's treating physician, Robert Carter, M.D., and on the further grounds that associate counsel for AMS was unexpectedly relocating to Australia by the end of May and therefore a new associate would need to become familiar with the facts and procedural status of this action prior to taking over the handling of this action. 5. Finally, the parties stipulated to modify the February 3, 2010 Pre-

Trial Order to move the trial of this action from January 31, 2011 to March 28, 2011 because new associate counsel for AMS will be unavailable from October 2010 through December 2010 due to a scheduled maternity leave. 6. The Court approved the parties' stipulation for modification of the

Pre-Trial Order on May 12, 2010. 7. The May 12, 2010 Pre-Trial Order set various deadlines, including

setting the close of fact discovery for July 6, 2010, with plaintiffs' Expert Witness Disclosure and Reports due August 6, 2010, defendant's Expert Witness Disclosure and Reports due August 20, 2010, and trial set for March 28, 2011. 8. Dr. Carter's deposition, scheduled for May 18, 2010, did not take

place due to the unavailability of his counsel. His deposition was re-set for June 22, 2010, in Placerville, California. The first session of Dr. Carter's deposition took place on June 22, 2010. However, due to the schedule of Dr. Carter, the deposition was not completed. The next session of Dr. Carter's deposition took place on July 28, 2010 in Placerville,
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California. The deposition was not completed. 9. The parties participated in mediation before court-appointed neutral

Jacqueline Corley on May 19, 2010. 10. On June 3, 2010, the parties appeared at the Case Management

Conference. Numerous discovery issues were discussed, and the possibility of an extension of time of certain dates in the Pre-Trial Order was discussed with the Court. 11. The parties subsequently met and conferred extensively, by and

through their counsel, regarding the scheduling of plaintiffs' additional 30(b)(6) depositions as well as many other discovery matters. Due to the schedules of the witnesses and counsel for both parties, the earliest date that those depositions could take place was during the week of July 19, 2010. The depositions were held on July 20, 2010, July 21, 2010, and July 22, 2010, in Minnesota. 12. On July 15, 2010, defendant AMS produced a CD of an additional

2000 pages of documents in response to plaintiffs' discovery requests included with plaintiffs' deposition notices, bringing the total number of pages of documents produced to more than 26,000 pages. 13. Plaintiff ELLEN AMBROFF appeared for a defense medical

examination with Craig Comiter, M.D., on July 9, 2010 at 9:00 a.m. Plaintiffs have requested a copy of Dr. Comiter's report. 14. Defendant AMS provided plaintiffs with an exemplar piece of large

pore polypropylene mesh on June 16, 2010. 15. On June 18, 2010, defendant AMS commenced the deposition of one

of plaintiff ELLEN AMBROFF'S treating physicians, Kenneth R. Stemmle, M.D. Due to Dr. Stemmle's schedule, the deposition was not completed. Dr. Stemmle's deposition was completed on July 15, 2010. 16. On June 24, 2010, based on the stipulation of the parties, the Court

modified the May 12, 2010 Pre-Trial Order to extend and set various deadlines, including a
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fact discovery cut-off of August 6, 2010 to allow for the completion of certain additional discovery. 17. Some of that additional discovery still remains to be conducted,

including the deposition of another of defendant's employees, Ginger Glaser, and the completion of Dr. Carter's deposition, as well as outstanding written discovery. Because of the schedule of plaintiffs' counsel, and pre-planned vacations, the parties agreed to extend the fact discovery cut-off to September 17, 2010 and to extend all other deadlines, including the trial date, set forth in this Court's June 23, 2010 Order Modifying the PreTrial Order. 18. For all the above reasons, the parties stipulate to modify the current

Pre-Trial Order to extend the fact discovery cut-off date to September 17, 2010 in order to complete the additional depositions of Ginger Glaser and Dr. Carter and the abovementioned outstanding written discovery and to extend the accompanying dates within the Pre-Trial Order as set forth hereinbelow. The trial date would be continued by 45 days. 19. It is not the intention of the parties to waive any rights to object to

discovery requests by this Stipulation. 20. For good cause, the parties stipulate to and respectfully request that

the Court continue the discovery dates within the Pre-Trial Order and accompanying dates, including the trial date, as follows: DISCOVERY Non-Expert Discovery Cutoff Designation of Plaintiffs' Experts with Reports Designation of Defendants' Experts with Reports Designation of Rebuttal Experts with Reports Expert Discovery Cutoff DISPOSITIVE MOTIONS Last Day to Hear Case Dispositive Motions
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September 17, 2010 October 22, 2010 November 5, 2010 November 19, 2010 December 17, 2010

April 15, 2011

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//// PRETRAL CONFERENCE Final Pre-Trial Conference at 11:00 a.m. TRIAL DATE Jury Trial to begin at 9:00 a.m. May 12, 2011 April 18, 2011

DATED: August 9, 2010 HERSH & HERSH A Professional Corporation

By___/s/ Amy Eskin__________________ AMY ESKIN Attorneys for Plaintiffs DATED: August 9, 2010 KENNEY & MARKOWITZ, L.L. P.

By___/s/ Kimberly I. McIntyre___________ KEN M. MARKOWITZ KIMBERLY I. MCINTYRE Attorneys for Defendant AMERICAN MEDICAL SYSTEMS, INC.

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[PROPOSED] ORDER Pursuant to the parties' stipulation and request for modification of the Court's Case Management Order and Pre-Trial Order, the following schedule shall apply to this case: DISCOVERY Non-Expert Discovery Cutoff Designation of Plaintiffs' Experts with Reports Designation of Defendants' Experts with Reports Designation of Rebuttal Experts with Reports Expert Discovery Cutoff DISPOSITIVE MOTIONS Last Day to Hear Case Dispositive Motions PRETRAL CONFERENCE Final Pre-Trial Conference at 11:00 a.m. TRIAL DATE Jury Trial to begin at 9:00 a.m. May 12, 2011 April 15, 2011 April 20, 2011 April 18, 2011 September 17, 2010 October 22, 2010 November 5, 2010 November 19, 2010 December 17, 2010

IT IS SO ORDERED: DATED: August 11, 2010

HON. JAMES LARSON UNITED STATES MAGISTRATE JUDGE

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