Dantzler v. City and County of San Francisco

Filing 41

STIPULATION AND ORDER re 40 TO CONTINUE EXPERT DISCOVERY AND RE DEFENDANT'S PSYCHOLOGICAL EVALUATION OF PLAINTIFF AMENDED filed by City and County of San Francisco. Discovery due by 1/10/2018. Rebuttal Reports due by 1/29/2018. Expert Discovery Cut-Off by 2/12/2018. Signed by Judge Edward M. Chen on 8/11/17. (bpfS, COURT STAFF) (Filed on 8/11/2017)

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1 2 3 4 5 6 7 DENNIS J. HERRERA, State Bar #139669 City Attorney KATHARINE HOBIN PORTER, State Bar #173180 Chief Labor Attorney JENICA D. MALDONADO, State Bar #266982 Deputy City Attorney 1390 Market Street, Fifth Floor San Francisco, California 94102-5408 Telephone: (415) 554-3915 E-Mail: jenica.maldonado@sfgov.org Attorneys for Defendant CITY AND COUNTY OF SAN FRANCISCO 8 9 10 11 12 BRIAN K. ROSS, ESQ., State Bar #163940 11850 Dublin Avenue Dublin, California 94568 Telephone: (925) 803-9450 Attorney for Plaintiff EUGENE F. DANTZLER 13 UNITED STATES DISTRICT COURT 14 NORTHERN DISTRICT OF CALIFORNIA 15 16 17 18 EUGENE F. DANTZLER, Plaintiff, vs. 19 CITY AND COUNTY OF SAN FRANCISCO, 20 Case No. C16-3119 EMC STIPULATION AND AMENDED [PROPOSED] ORDER TO CONTINUE EXPERT DISCOVERY AND RE: DEFENDANT’S PSYCHOLOGICAL EVALUATION OF PLAINTIFF Defendant. 21 22 23 24 25 26 27 28 STIP & AMENDED [PROPOSED] ORDER TO CONTINUE EXPERT DISC AND FOR IME Case No. C16-3119 EMC 1 c:\users\wtakao\appdata\local\temp\notesc7a056\01212532.docx STIPULATION 1 2 Plaintiff Eugene Dantzler (“Plaintiff”) and Defendant City and County of San Francisco 3 (“Defendant” or “City”) (collectively, the “Parties”), by and through their attorneys, enter the 4 following stipulation regarding their mutual request to continue expert discovery and Defendant’s 5 psychological evaluation of Plaintiff pursuant to Federal Rule of Civil Procedure 35(b)(6): 6 1. On July 13, 2017, Plaintiff appeared for deposition at the Office of the City Attorney, 7 1390 Market Street, Fifth Floor, San Francisco, CA 94102. This was Plaintiff’s first appearance for 8 deposition. 9 2. At deposition, Plaintiff disclosed that prior to his employment with the City he served 10 in the military. He testified that while enlisted he experienced a service-related incident that resulted 11 in diagnosis of multiple mental health conditions. He also testified that, from the date of the service- 12 related incident until present, he has received mental health treatment for such conditions from 13 providers at the United States Department of Veterans Affairs and Kaiser Permanente. 14 3. Also at deposition, Plaintiff testified that he seeks damages for emotional distress 15 associated with the loss of his job with Defendant. He testified that he has suffered “more depression” 16 and “low self-esteem” as a result of the job loss. Before deposition, Plaintiff’s specific mental health 17 conditions had not been disclosed to Defendant in the litigation. 18 4. The Parties jointly request a continuance of the expert discovery deadlines. The current 19 expert discovery deadlines are as follows: September 7 (initial reports); September 28 (rebuttal 20 reports); October 19 (expert discovery cut-off). (Dkt. No. 25) These dates are far in advance of the 21 last day for hearing on dispositive motions (November 30) and the trial date (March 12, 2018). 22 Defendant, with Plaintiff counsel’s consent, proposed the existing expert discovery deadlines before it 23 was aware of Plaintiff’s unique mental health conditions and had an opportunity to evaluate their 24 potential impact on Plaintiff’s claim for emotional distress damages. With this information now 25 revealed, the City has determined it will need to retain an expert witness to opine as to the impact of 26 Plaintiff’s pre-existing mental health conditions on his claim for emotional distress damages. Because 27 of the expense associated with such discovery and because it will only become relevant if the Court 28 STIP & AMENDED [PROPOSED] ORDER TO CONTINUE EXPERT DISC AND FOR IME Case No. C16-3119 EMC 2 c:\users\wtakao\appdata\local\temp\notesc7a056\01212532.docx 1 denies the City’s motion for summary judgment (which the City intends to file on October 26 and have 2 heard on November 30), the Parties jointly request that the Court postpone expert discovery until 3 closer to trial, as set forth in the proposed order. There is good cause to do so because such 4 information only becomes relevant if the case proceeds to trial and Plaintiff’s potential damage 5 recovery becomes at issue. Moreover, postponing this part of the litigation may avoid expense of 6 certain costs associated with expert discovery, should the Court grant the City’s motion. 6. 7 The Parties also agree that, pursuant to Federal Rule of Civil Procedure 35, Plaintiff 8 Eugene Dantzler will appear for a psychological evaluation on December 18, 2017 at 9:30 a.m. at the 9 office of Joanna Berg, Ph.D at 5665 College Avenue, Suite 240 East, Oakland, California 94618. Dr. 10 Berg will perform an interview and a standard battery of psychological tests, including but not limited 11 to: (1) Minnesota Multiphastic Personality Inventory; (2) MCMI; (3) Rorschach Performance 12 Assessment System; and (4) Rotter Incomplete Sentence Blank. It is anticipated that the examination 13 will take a minimum of six hours. Plaintiff should bring his reading glasses, if any, and any 14 medication he is currently taking. Plaintiff understands and agrees that he is not entitled to have his 15 attorney present at the examination and agrees to attend the examination without any other person or 16 representative. 7. 18 19 Dr. Berg will make an audio recording of the examination and Plaintiff consents to the 8. 17 Plaintiff will not sign any authorization or consent form for Dr. Berg, nor will he fill same. 20 out any forms, charts, new patient records, insurance information, or histories for Dr. Berg or her 21 office. Plaintiff will complete written tests. 22 9. The evaluation of Plaintiff will be limited to psychological and neuropsychological 23 evaluation and will not include any medical diagnostic tests or physical examination other than 24 pertaining to the psychological and neuropsychological evaluation. 25 10. Dr. Berg must preserve all documents relating to these tests and procedures, including 26 any and all notes made by Dr. Berg and her staff at any time before, during or after the examination, 27 all raw data generated during the examination, all tests, forms, score sheets, or other writings 28 STIP & AMENDED [PROPOSED] ORDER TO CONTINUE EXPERT DISC AND FOR IME Case No. C16-3119 EMC 3 c:\users\wtakao\appdata\local\temp\notesc7a056\01212532.docx 1 generated during the examination whether generated by Plaintiff or Dr. Berg. Dr. Berg must produce 2 all raw test data to Plaintiff’s designated expert in psychiatry/psychology, if any, within a reasonable 3 period after the completion of her examination and not less than one week after Plaintiff identifies his 4 designated expert and, through counsel, has requested production of such data. 11. 5 This examination, any audio recordings of this examination, Dr. Berg’s report, all 6 medical and psychotherapeutic information provided to Dr. Berg, and all test data are subject to the 7 protective order already in place in this matter. 12. 8 9 10 The examiner’s report will be timely produced to provide to Plaintiff’s counsel pursuant to Federal Rule of Civil Procedure 35 within 30 days after her completion of her examination of Plaintiff. This stipulation constitutes Plaintiff’s formal request under Rule 35. 13. 11 Plaintiff also agrees to sign waivers authorizing release of his mental health records 12 from the United States Department of Veterans Affairs, located at the VA Martinez Outpatient Clinic, 13 150 Muir Road, Martinez, CA 94553 for mental health records from July 1, 2000 until present, and 14 from Kaiser Permanente, located in Oakland, California for mental health records from January 1, 15 2012 through December 31, 2014. Plaintiff agrees to provide the signed waivers to the City by 16 Wednesday, August 16, 2017. Plaintiff agrees that, if the City is required to file a motion to compel 17 timely production of these records from either the United States Department of Veterans Affairs or 18 Kaiser Permanente that Plaintiff will not oppose the City’s motion. 14. 19 Defendant shall provide a copy of this stipulation to Dr. Berg reasonably in advance of 20 the examination in an effort to minimize the possibility of disagreement or misunderstanding at the 21 time of examination. 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 STIP & AMENDED [PROPOSED] ORDER TO CONTINUE EXPERT DISC AND FOR IME Case No. C16-3119 EMC 4 c:\users\wtakao\appdata\local\temp\notesc7a056\01212532.docx 1 SO STIPULATED. 2 Dated: August 10, 2017 DENNIS J. HERRERA City Attorney KATHARINE HOBIN PORTER Chief Labor Attorney JENICA D. MALDONADO Deputy City Attorney 3 4 5 6 By: /s/Jenica D. Maldonado JENICA D. MALDONADO 7 8 Attorneys for Defendant CITY AND COUNTY OF SAN FRANCISCO 9 10 LAW OFFICES OF BRIAN K. ROSS 1 Dated: August 10, 2017 11 By: /s/Brian K. Ross BRIAN K. ROSS, ESQ. 12 13 Attorney for Plaintiff EUGENE F. DANTZLER 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 Pursuant to General Order No. 45, the counsel for the City attests that concurrence in the filing of this document has been obtained from the other signatory, which shall serve in lieu of his signature on the document. STIP & AMENDED [PROPOSED] ORDER TO CONTINUE EXPERT DISC AND FOR IME Case No. C16-3119 EMC 5 c:\users\wtakao\appdata\local\temp\notesc7a056\01212532.docx ORDER 1 2 3 Having considered the Parties’ stipulation, and good cause appearing, the Court modifies the scheduling order as follows: Current Date 4 5 Opening Expert Reports: September 7, 2017 6 Rebuttal Reports: September 28, 2017 7 Expert Discovery Cut-off: New Date 10 January 17, 2018 January 29, 2018 February 12, 2018 12 February 26, 2018 October 19, 2017 8 9 10 All other dates set forth in the Case Management and Pretrial Order for Jury Trial (Dkt. No. 25) remain unchanged. Moreover, the independent medical examination (“IME”) of Plaintiff will take place on Friday 11 December 18, 2017 in accordance with Federal Rule of Civil Procedure 35(b)(6) and pursuant to the 12 terms and conditions set forth in the Parties’ stipulation. If necessary, the Parties may mutually agree 13 on an alternative date and time for the IME, provided that the examination takes place before 14 December 18, 2017 and otherwise remains subject to the terms and conditions set forth in the 15 stipulation. Dated: August 11, 2017 U.S. DISTRICT JUDGE EDWARD CHEN hen rd M. C ge Edwa Jud H ER LI RT 21 FO NO 20 22 23 A 19 D RDERE IS SO O FIED IT DI AS MO R NIA 18 UNIT ED IT IS SO ORDERED. S DISTRICT TE C TA RT U O 17 S 16 N F D IS T IC T O R C 24 25 26 27 28 STIP & AMENDED [PROPOSED] ORDER TO CONTINUE EXPERT DISC AND FOR IME Case No. C16-3119 EMC 6 c:\users\wtakao\appdata\local\temp\notesc7a056\01212532.docx

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