Waite v. Church of Jesus Christ, Latterday Saints et al

Filing 41

MEMORANDUM of Points and Authorities in Opposition re 36 MOTION to Continue Expert Disclosure Dates for Neuropsychology Opinions filed by Thomas A Waite. (Nordstrom, Stephen)

Waite v. Church of Jesus Christ, Latterday Saints et al

Doc. 41

Case 2:05-cv-00399-EFS

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Filed 01/18/2007

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STEPHEN L. NORDSTROM Nor dstr om & Nees, P.S. 323 South Pines Road Spokane, WA 99206 [phone] RICHARD C. EYMANN Eymann Allison Hunter & Jones, P.S. 2208 West Second Avenue Spokane, WA 99201-5417 [phone] Attorneys for Plaintiff UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF WASHINGTON THOMAS A. WAITE, Plaintiff, vs. THE CHURCH OF JESUS CHRIST OF LATTER DAY SAINTS d/b/a CORPORATION OF THE PRESIDING BISHOP OF THE CHURCH OF JESUS CHRIST OF LATTER DAY SAINTS, a Utah corporation, d/b/a CORPORATION OF THE PRESIDENT OF THE CHURCH OF JESUS CHRIST OF LATTER DAY SAINTS, a Utah cor por ation; DONALD C. FOSSUM; and STEVEN D. BRODHEAD, Defendants. On Tuesday, January 16, 2007, defendants filed a motion requesting an expedited hearing on their Motion to Continue Expert Disclosure Dates for Neur opsychology Opinions, requesting that this Court enter an Order requiring plaintiff Thomas A. Waite to attend a neuropsychological examination in Seattle on F ebr uar y 7-8, 2007. Plaintiff objects to this untimely defense examination as good No. CV-05-399-EFS MEMORANDUM IN OPPOSITION TO DEFENDANTS' MOTION TO CONTINUE EXPERT DISCLOSURE DATES FOR NEUROPSYCHOLOGY OPINIONS

NORDSTROM & NEES, P.S.
M E M O R A N D U M IN OPPOSITION TO DEFENDANTS' M O T IO N TO CONTINUE EXPERT DISCLOSURE D A T E S FOR NEUROPSYCHOLOGY OPINIONS - 1
(mem in opp to def motion to continue expert disclosure dates.wpd)

323 SOUTH PINES ROAD · SPOKANE, WA 99206 TE L E P H O N E : [phone] · FAX: [phone]

Dockets.Justia.com

Case 2:05-cv-00399-EFS

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cause does not exist for defendants' request for this examination by Frederick Wise, Ph. D. in Seattle, Washington, and requests this Court deny defendants' Motion to Continue Expert Disclosure Dates for Neuropsychology Opinions. I. STATEMENT OF FACTS On January 8, 2003, plaintiff Thomas A. Waite began serving a full-time two year mission for the Church of Jesus Christ of Latter Day Saints (Mormon Church). Residing in Fullerton, California, he had been called to serve in the Washington Spokane Mission. On August 21, 2003, Mr. Waite and five other LDS missionaries wer e riding in a 2003 Dodge Dakota extended cab pickup, owned by the Mormon Chur ch. The pickup had seatbelts and seats for four passengers within the cab. Two of the missionaries, including Mr. Waite, rode in the bed of the pickup where there wer e no seatbelts. Defendant Donald C. Fossum, an LDS Church missionary at the time, was the driver of the pickup. At the intersection of Adams Road and 8th Avenue in the Spokane Valley, Mr. Fossum slowed the pickup to a stop on the south side of the four-way stop. Mr. Fossum then proceeded into the intersection before looking and seeing a 1988 Honda Accord traveling at a high rate of speed East on 8th Avenue towar ds Adams Road. The Honda, which was being driven by defendant Stephen D. Br odhead, smashed into the side of the pickup, and Mr. Waite was ejected from the bed of the pickup, sustaining a severe traumatic brain injury. II. LAW AND ARGUMENT F ed. R. Civ. P. 35 provides as follows: Rule 35. Physical and Mental Examination of Persons. (a) Order for Examination. When the mental or physical condition (including the blood group) of a party or of a person in the custody or under the legal control of a party, is in controversy, the court in which the action is pending may order the party to submit to a physical or mental examination by a suitably licensed or certified examiner or to produce for examination the person in the party's custody or legal
NORDSTROM & NEES, P.S.
M E M O R A N D U M IN OPPOSITION TO DEFENDANTS' M O T IO N TO CONTINUE EXPERT DISCLOSURE D A T E S FOR NEUROPSYCHOLOGY OPINIONS - 2
(mem in opp to def motion to continue expert disclosure dates.wpd)

323 SOUTH PINES ROAD · SPOKANE, WA 99206 TE L E P H O N E : [phone] · FAX: [phone]

Case 2:05-cv-00399-EFS

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Filed 01/18/2007

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contr ol. The order may be made only on motion for good cause shown and upon notice to the person to be examined and to all parties and shall specify the time, place, manner, conditions, and scope of the examination and the person or persons by whom it is to be made. (Emphasis added) Plaintiff agrees that discovery rules are to be given broad and liberal treatment

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so as to avoid trial by ambush. Nonetheless, it is not an abuse of discretion for the
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tr ial judge to refuse such a request for examination, either physical or mental. Tietjen
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v. Department of Labor and Industries, 13 Wn. App. 86, 584 P.2d 151 (1975).
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F ur ther , "good cause" is not a mere formality but must be affirmatively satisfied by
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the movant in order to request the trial judge to exercise his or her discretion by
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or der ing such an exam. Matter of Welfare Green, 14 Wn. App. 939, 546 P.2d 1230
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(1976). As the court indicated in Schlagenhauf v. Holder, 39 U.S. 104, 118, 85 S.
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Ct. 234, 13 L.Ed.2d 152 (1964), the "good cause" requirement is unique to this
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discover y rule. In that case, the Supreme Court opined:
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They are not met by mere conclusory allegations of the pleadings ­ nor by mere relevance to the case ­ but require an affirmative showing by the movant that each condition as to which the examination is sought is really and genuinely in controversy and that good cause exists for ordering each par ticular examination. Obviously, what may be good cause for one type of examination may not be so for another. The ability of the movant to obtain the desired information by other means is also relevant. Defendants requested and obtained a neuropsychological evaluation of Thomas

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Waite prior to the commencement of this litigation. Indeed, Mr. Waite was asked by
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defendant LDS Church and agreed to be seen at St. Luke's Rehabilitation Institute for
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a neuropsychological evaluation on December 6,
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2004.

A Report of

Neur opsychological Evaluation was prepared by Angelique G. Tindall, Ph.D., clinical psychologist. Declaration of Stephen L. Nordstrom, Exhibit "A". Good cause does
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not exist as required by Fed.R.Civ.P. 35 for a second such examination.
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M E M O R A N D U M IN OPPOSITION TO DEFENDANTS' M O T IO N TO CONTINUE EXPERT DISCLOSURE D A T E S FOR NEUROPSYCHOLOGY OPINIONS - 3
(mem in opp to def motion to continue expert disclosure dates.wpd)

NORDSTROM & NEES, P.S.
323 SOUTH PINES ROAD · SPOKANE, WA 99206 TE L E P H O N E : [phone] · FAX: [phone]

Case 2:05-cv-00399-EFS

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As the Court is well aware, there is a known element of improvement on neur opsychological scores with second and third exposures to neuropsychological test batter ies. Mr. Waite has already undergone two such batteries. Absent some

evidence that defendants' experts would be unable to reach an opinion and/or testify r egar ding plaintiff Mr. Waite's injuries without such exam, plaintiff resists the idea that Mr. Waite should be forced to travel from Fullerton, California to Seattle, Washington for a two-day defense evaluation. If, however, the Court is inclined to accommodate the defendants' request, plaintiff would ask that Dr. Wise arrange for testing in Fullerton due to plaintiff's schooling and his family's schedule. Mr . Waite should not be forced to complete multiple neuropsychological evaluations, which the defense hopes to use against him without acknowledging his tr aumatic brain injury. The information sought by the defense expert is available in Mr . Waite's complete medical file, copies of which have been provided. Additionally, plaintiff will request that his expert, William Burkhart, Ph.D. provide a copy of his r aw data and testing to Dr. Wise if the Court deems a "paper review" is warranted. In addition, there has been no allegation that the defense's expert, Dr. Wise, lacks sufficient information to form opinions or that he believes that an examination of Mr. Waite will impact his current opinion in any way. For this reason as well, ther e has been no showing of good cause as required by the rule. III. CONCLUSION F or the reasons stated above, plaintiff respectfully requests this Court deny Defendants' Motion to Continue Expert Disclosure Dates for Neuropsychological Opinions. If an examination is to be permitted, plaintiff requests that any such exam take place in Fullerton, California due to Mr. Waite's schooling and his family's schedule.
NORDSTROM & NEES, P.S.
M E M O R A N D U M IN OPPOSITION TO DEFENDANTS' M O T IO N TO CONTINUE EXPERT DISCLOSURE D A T E S FOR NEUROPSYCHOLOGY OPINIONS - 4
(mem in opp to def motion to continue expert disclosure dates.wpd)

323 SOUTH PINES ROAD · SPOKANE, WA 99206 TE L E P H O N E : [phone] · FAX: [phone]

Case 2:05-cv-00399-EFS

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RESPECTF ULLY SUBMITTED this 18th day of January, 2007. NORDSTROM & NEES, P.S.

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M E M O R A N D U M IN OPPOSITION TO DEFENDANTS' M O T IO N TO CONTINUE EXPERT DISCLOSURE D A T E S FOR NEUROPSYCHOLOGY OPINIONS - 5
(mem in opp to def motion to continue expert disclosure dates.wpd)

By:

s/Stephen L. Nordstrom STEPHEN L. NORDSTROM, WSBA #11267 Co-Counsel for Plaintiff

NORDSTROM & NEES, P.S.
323 SOUTH PINES ROAD · SPOKANE, WA 99206 TE L E P H O N E : [phone] · FAX: [phone]

Case 2:05-cv-00399-EFS

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CERTIFICATE OF SERVICE I, STEPHEN L. NORDSTROM, hereby certify that on the 18th day of January, 2007, I electronically filed the foregoing with the Clerk of the Court using the CM/ ECF System which will send notification of such filing to the following par ticipants: Br ian T. Rekofke Wither spoon Kelley Davenport & Toole 1100 U.S. Bank Building 422 W. Riverside Avenue Spokane, WA 99201 Andr ew C. Smythe Paine Hamblen Coffin Brooke & Miller 717 W. Sprague Avenue, Suite 1200 Spokane, WA 99201

s/Stephen L. Nordstrom STEPHEN L. NORDSTROM

NORDSTROM & NEES, P.S.
M E M O R A N D U M IN OPPOSITION TO DEFENDANTS' M O T IO N TO CONTINUE EXPERT DISCLOSURE D A T E S FOR NEUROPSYCHOLOGY OPINIONS - 6
(mem in opp to def motion to continue expert disclosure dates.wpd)

323 SOUTH PINES ROAD · SPOKANE, WA 99206 TE L E P H O N E : [phone] · FAX: [phone]