The opinion of the court was delivered by: Oliver W. Wanger United States District Judge
SCHEDULING CONFERENCE ORDER Discovery Cut-Off: 11/16/09 Non-Dispositive Motion Filing Deadline: 12/1/09 Dispositive Motion Filing Deadline: 1/8/10
I. Date of Scheduling Conference. March 27, 2009
11/18/09 10:00 Ctrm. 10 Settlement Conference Date: Pre-Trial Conference Date: 4/12/10 11:00 Ctrm. 3 Ctrm. 3 (JT-5 days) Trial Date: 5/25/10 9:00
II. Appearances Of Counsel
Plaintiff appeared in pro se.
Lewis Brisbois Bisgaard & Smith LLP by Stacy C. Spodick, Esq., appeared on behalf of Defendant.
III. Summary of Pleadings
1. This matter arises from allegations that Plaintiff was injured when he used an Ultraflex Silicone Self-Adhering Male External Catheter ("the product"), manufactured by RMC. Plaintiff asserts causes of action for strict liability, negligent products liability, fraudulent misrepresentations, and breach of implied warranty of fitness. Plaintiff also asserts a claim for punitive damages.
2. Plaintiff alleges he is a wheelchair paralytic who is an inmate at Kern Valley State Prison. On March 20, 2006, Plaintiff allegedly used RMC's Ultraflex Silicone Self-Adhering Male External Catheter. Plaintiff alleges that the product is "inherently defective and dangerous because the glue of the condom is unnecessarily excessively strong and bonds to the length of the penis. . . ." Plaintiff contends that the product did not roll off as depicted on the package, but instead "tore off" skin and pubic hair. Plaintiff alleges that the information given on the product's package "encourages and falsely deceived the user to believe that after unrolling the glue-on condom onto the user's penis shaft the condom can be removed without difficulty and pain by simply rolling the glued on condom off the penis shaft." As a result of Plaintiff's alleged difficulty removing the condom, he claims he suffered injuries.
3. Plaintiff initially filed his complaint in the Superior Court of California, Bakersfield, on June 14, 2007. RMC timely removed the case to this court on September 7, 2007, on the basis of diversity jurisdiction.
4. On or about October 22, 2008, RMC filed a Request Re Setting of Mandatory Scheduling Conference, requesting that the parties be allowed to file individual Scheduling Reports. This request was granted by the Court on or about November 6, 2008.
IV. Orders Re Amendments To Pleadings
1. The parties do not anticipate amending the pleadings at this time.
A. Admitted Facts Which Are Deemed Proven Without Further Proceedings
1. Plaintiff is a resident of the Eastern District of California and is currently incarcerated.
2. Defendant Rochester Medical Corporation is a Minnesota corporation doing business in the Eastern District of California.
1. All remaining facts are contested.
1. Jurisdiction exists under 28 U.S.C. § 1332(a)(1). The Defendant John Doe Distributor has been dismissed without prejudice.
2. Venue is proper under 28 U.S.C. § 1391.
3. The substantive law of the State of California provides the rule of decision in ...