Kormylo, M.D. et al v. Forever Resorts, LLC et al

Filing 55

Amended order after telephonic Discovery Conference. Signed by Magistrate Judge William V. Gallo on 8/18/2014.(av1)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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NICHOLAS KORMYLO, M.D.,
et al.,

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Plaintiffs,
v.
FOREVER RESORTS, LLC,
et al.,
Defendants.

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Civil No. 13-CV-0511-JM (WVG)
AMENDED ORDER AFTER
TELEPHONIC DISCOVERY
CONFERENCE

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On August 15, 2014, this Court held a telephonic Discovery Conference with

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counsel for all parties. Mr. Robert Francavilla and Ms. Angela Jae participated on

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behalf of Plaintiffs, Dr. Nicholas Kormylo, Kimberly Kormylo, and Bruce Kormylo

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(collectively “Plaintiffs”). Ms. Chelsea Yuan participated on behalf of Defendants

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Forever Resorts, LLC and Kenneth Williams (collectively “Defendants”), and Mr.

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Douglas Guy participated on behalf of Third Party Defendant Scott Neeley.

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On June 13, 2014, Defendants filed a Motion for Leave to File a Third Party

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Complaint. (Doc. No. 44.) On August 5, 2014, the Honorable Jeffrey T. Miller, United

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States District Judge, granted Defendants’ Motion. (Doc. No. 50.) On August 13,

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2014, Defendants filed a Third Party Complaint against the Boy Scouts of America and

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a number of individuals (collectively “Boy Scouts of America”). (Doc. No. 51.) The
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Boy Scouts of America have not been served, nor have they answered the Third Party

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Complaint, and accordingly, did not participate in the Discovery Conference held on

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August 15, 2014.

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The purpose of the Discovery Conference was to discuss, among other things,

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whether a planned inspection of the vessels involved in the accident, which is the

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subject of this lawsuit, should occur as planned on August 19, 2014. Defendants

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requested that the inspection be delayed or continued until after the Boy Scouts of

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America have entered the lawsuit and can participate in the inspection. Plaintiff and

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Third Party Defendant Neeley objected to any delay of the inspection on several

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grounds, most notably that extensive coordination of experts has occurred, some with

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non-refundable airline tickets. Also, as was previously discussed and agreed to, the

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parties have agreed to exchange any and all data obtained as a result of the inspection,

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and this data can be shared with the Boy Scouts of America.
The Court hereby DENIES Defendants’ request to delay the inspection. The

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inspection of the houseboats and chase boat shall proceed as previously planned.

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Further, Plaintiffs made two requests. First, Plaintiffs requested that the

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houseboat in question, from which Plaintiff Dr. Kormylo purportedly dove, be moved

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from its current location at Defendants’ dock, to a nearby cove where the houseboat

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would be beached. Plaintiffs explain that it is necessary to have the houseboat in a

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stationary position, which can only be accomplished by beaching it, so that their experts

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can take accurate and precise measurements by use of a scanning device. Defendants

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objected, stating that one of the houseboats in question has been removed from the

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water and is sitting stationary in parking lot. The other houseboat, from which Plaintiff

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Dr. Kormylo allegedly jumped, is tied up securely at the dock.

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Plaintiffs’ request is therefore DENIED. In addition to being able to take the

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measurements that they need, either from the houseboat in the parking lot, or the

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houseboat that is securely tied to the dock, each boat should have published specifica-

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tions and diagrams which can be used by Plaintiffs’ experts to obtain accurate

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measurements.

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The second request made by Plaintiffs was to allow someone, presumably

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Plaintiff Dr. Kormylo, to jump off of the houseboat in question while being filmed, in

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an effort to “recreate” his activities before the accident. The purpose of the filming,

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from the vantage point of where the chase boat may have been, is to determine that

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someone in the chase boat should have easily seen Plaintiff Dr. Kormylo jump off of

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the houseboat. Defendants object for reasons which were previously discussed.

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Defendants’ objection is SUSTAINED. Plaintiffs are not permitted to film Plaintiff Dr.

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Kormylo, or anyone else, jumping from the back of the houseboat.

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Additionally, Plaintiffs raised an anticipatory objection that Defendants may

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conduct their own independent inspection, separate and apart from the joint inspection

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that is scheduled to occur on or about August 19, 2014. Plaintiffs anticipate that any

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independent inspection made by Defendants will not be shared. Whether or not

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Defendants choose to perform tests independent of the joint testing or inspection that

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will occur on or about August 19, 2014, is entirely within their prerogative, and any

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data obtained from that inspection, separate and apart from the joint inspection, need

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not be disclosed or released until expert discovery.

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During the Discovery Conference, the parties brought several issues to the

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Court’s attention that were prematurely raised and wholly unnecessary. The parties are

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reminded that they are to meet and confer whenever issues arise, to have a good faith

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discussion about those issues, and only bring the unresolved issues to the Court’s

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attention. Judge Gallo’s Chambers Rule IV(A).

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IT IS SO ORDERED.

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DATED: August 18, 2014

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Hon. William V. Gallo
U.S. Magistrate Judge

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