United States of America et al v. Healthsouth Corporation et al

Filing 198

ORDER Granting 189 Joint Stipulation Concerning the Appointment of a Special Master. David M. Tenner is appointed as Special Master. Signed by Magistrate Judge Cam Ferenbach on 5/22/2019. (Copies have been distributed pursuant to the NEF - SLD) (Main Document 198 replaced on 5/22/2019) (SLD).

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Philip Goodhart (Bar No. 5332)
[e-mail]
THORNDAL, ARMSTRONG, DELK
BALKENBUSH & EISINGER
1100 E. Bridger Avenue
Las Vegas, NV 89101
Telephone: [phone]
Facsimile: 702.366.0327

James J. Pisanelli, Esq.
Nevada Bar No. 4027
PISANELLI BICE, PLLC
400 S. 7th Street, Suite 300
Las Vegas, NV 89101
Telephone:
[phone]
Facsimile:
[phone]
Email: [e-mail]

Merril Hirsh (admitted pro hac vice)
[e-mail]
LAW OFFICE OF MERRIL HIRSH PLLC
2837 Northampton St., NW
Washington, D.C. 20015
Telephone: [phone]

R. Jeffrey Layne, Esq. (admitted pro hac vice)
REED SMITH LLP
111 Congress Avenue, Suite 400
Austin, TX 78701
Telephone:
[phone]
Facsimile:
[phone]
Email: [e-mail]

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Frederick J. Morgan (admitted pro hac vice)
[e-mail]
Jennifer M. Verkamp (admitted pro hac vice)
[e-mail]
Sonya A. Rao (admitted pro hac vice)
[e-mail]
Ian M. Doig (admitted pro hac vice)
[e-mail]
MORGAN VERKAMP LLC
35 East Seventh Street, Suite 600
Cincinnati, OH 45202
Telephone: [phone]
Facsimile: 513.651.4405

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Attorneys for Plaintiff-Relator Joshua Luke

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MORGAN VERKAMP, LLC

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Attorneys for Defendants HealthSouth Corp.
And HealthSouth of Henderson, Inc.
Jack W. Selden (admitted pro hac vice)
1819 Fifth Avenue North
Birmingham, AL 35203
Kimberly B. Martin (admitted pro hac vice)
BRADLEY ARANT BOLT CUMMINGS LLP
200 Clinton Avenue West, Suite 900
Huntsville, AL 35801
Attorneys for Defendant Kenneth Bowman

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UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA

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UNITED STATES OF AMERICA, ex rel.,
Joshua Luke,

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Case No.: 2:13-cv-01319-APG-VCF
ORDER APPOINTING DAVID M.
TENNER AS SPECIAL MASTER

Plaintiff,
v.
HEALTHSOUTH CORPORATION,
HEALTHSOUTH OF HENDERSON, INC. and
KENNETH BOWMAN,
Defendants.

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Having considered the factors set forth in F.R.C.P. 53(a)(3), the parties’ Joint Stipulation

28 Concerning the Appointment of a Special Master (Doc. 189), and having given the parties notice and
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1 an opportunity to be heard, the Court hereby appoints David M. Tenner of Ridley, McGreevy, &
2 Winocur, P.C., 303 16th Street, Suite 200, Denver, Colorado, 80203, [phone], as Special
3 Master in this matter.
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1.

Authority for and Scope of Appointment. The Special Master is appointed pursuant

5 to F.R.C.P. 53(a)(1)(C) to resolve certain issues related to or arising out of discovery disputes
6 concerning matters that the Court, pursuant to F.R.C.P. 53(a)(1)(C), finds cannot be effectively and
7 timely addressed by the Court and so orders. In addition, the Special Master may perform any
8 additional duties consented to by the parties and Court pursuant to F.R.C.P. 53(a)(1)(A).
(a)

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Specific Issues Within Scope. The Court specifically orders that the Special
Master shall resolve the disputes concerning the scope of discovery (as set

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MORGAN VERKAMP, LLC

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forth in Doc. Nos. 180, 181, and 192, which incorporate the parties’ positions

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set forth in Doc. Nos. 161, 162, and 163) and new case deadlines (as set forth

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in Doc. 179). Pursuant to F.R.C.P. 53(a)(1)(C), the Court finds that these

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matters cannot be effectively and timely addressed by the Court.

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2.

Special Master’s Duties and Authority. The Special Master shall proceed with all

16 reasonable diligence to undertake these responsibilities with a view to avoiding disputes wherever
17 possible and where disputes arise, to resolve them as quickly and inexpensively as possible. The
18 Special Master shall have all of the authority provided to masters as set forth in F.R.C.P. 53(c),
19 including the power to sanction as set forth in F.R.C.P. 53(c)(2).
(a)

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Timeframes for Completion of Certain Events: Unless otherwise agreed to by

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the parties and the Special Master, the parties shall have an initial meeting

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with the Special Master, by telephone, within 14 days of the issuance of this

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Order. During that initial meeting, the parties and the Special Master shall

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(1) set a date for an evidentiary hearing concerning the issues set forth in

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paragraph 1(a) of this Order; and (2) the parameters and procedures

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concerning the aforementioned hearing. The Special Master shall issue his

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order and findings within 30 days of the completion of the hearing.

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3.

Ex Parte Communications.
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(a)

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With the Court. The Special Master may have ex parte communications with

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the Court regarding (1) whether or not a particular dispute or motion is subject

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to the scope of the Special Master’s duties; (2) assisting the Court with

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procedural matters, such as apprising the Court regarding logistics, the nature

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of the Special Master’s activities, and management of the litigation; (3) any

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matter upon which the parties or their counsel have consented; (4) the

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application of F.R.C.P. 53; and (5) any matter, the subject of which is initiated

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by the Court.
(b)

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With the Parties and Counsel. The Special Master may have ex parte
communications with the parties or their respective counsel regarding (1)

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purely procedural or scheduling matters; (2) resolution of privilege or similar

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questions, in connection with in camera inspections, and with notice to the

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other parties; and (3) any matter upon which the parties or their counsel have

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consented.

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4.

Material to be Preserved and Filed as the Record of the Special Master’s Activities.

16 All orders of the Special Master shall be filed with the Court, unless the parties or their counsel have
17 agreed otherwise. It shall be the duty of the parties and counsel, not the Special Master, to provide
18 for any record of proceedings with the Special Master. The Special Master shall not be responsible
19 for maintaining any records of the Special Master’s activities other than billing records. In the event
20 of any hearing where evidence is taken, it shall be the duty of the parties and counsel to preserve any
21 exhibits tendered or rejected at the hearing and to provide the Special Master with a copy of all
22 transcripts.
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5.

Review of Special Master’s Reports, Orders or Recommendations. Subject to the

24 provisions of F.R.C.P. 53(f), any report or order of the Special Master is effective upon its issuance.
25 Any objection to any report, order or recommendation of the Special Master shall be made in writing
26 by the objecting party and filed with the Court within 7 days of the date of the order, report or
27 recommendation to which the party is objecting. Review of the Special Master’s order, report or
28 recommendation shall be governed by F.R.C.P. 53(f)(3).
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6.

Compensation. The Special Master shall be compensated at $400/hour (except that

2 time in travel shall be compensated at $200/hour) and shall be reimbursed for all reasonable
3 expenses and costs incurred in the performance of his duties. These fees and costs shall be paid ½
4 by the Plaintiff, and ½ by the Defendants, although the Special Master has the power to adjust the
5 division of fees and costs in his discretion based on the merits of the matter before him. The Special
6 Master shall bill the parties on a monthly basis for fees and disbursements, with invoices that
7 provide sufficient description to understand the work performed. The parties shall promptly pay the
8 Special Master directly, upon receipt of the Special Master’s invoice. The fees and costs may be
9 reallocated by the Court in its discretion at the conclusion of the case. Upon the failure of a party to
10 timely pay the Special Master’s fees, the Court may enter judgment in favor of the Special Master

MORGAN VERKAMP, LLC

11 and against the non-paying party.
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7.

Special Master’s Affidavit. The Special Master’s Affidavit required by F.R.C.P.

13 53(b)(3)(A) has been executed and filed.
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IT IS SO ORDERED:

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___________________________________
THE HONORABLE CAM FERENBACH
UNITED STATES MAGISTRATE JUDGE
5-22-2019
Dated: _________________________

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