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Latoya Mckenzie, et al. v. Kern County

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


June 23, 2011

LATOYA MCKENZIE, ET AL. PLAINTIFFS
v.
KERN COUNTY, ET AL DEFENDANTS.

The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge

FEDERICO CASTELAN SAYRE, ESQ., SBN 067420 sayreesq@sayrelevitt.com TYLER RICHARD DOWDALL, ESQ., SBN 258950 tdowdall@sayrelevitt.com SAYRE & LEVITT, LLP 900 N. BROADWAY, 4th FLOOR SANTA ANA, CALIFORNIA 92701-3452 Phone (714) 550-9117 Facsimile (714) 550-9125 Attorneys for Plaintiffs:

Assigned to Magistrate Judge Dennis L. Beck

STIPULATION TO CONTINUE DISCOVERY AND ALL SUBSEQUENT DATES BY ONE MONTH and ORDER THEREON

Pre-Trial Conference: Nov. 18, 2011 Trial: January 31, 2012

COME NOW, the Parties herein, by and through their respective counsel of record, Tyler R. Dowdall, Esq. of SAYRE & LEVITT, LLP for Plaintiffs LaToya McKenzie, Brenda McKenzie, Chastity McKenzie, Rory McKenzie, Jr., Zilah Peeples, Amiya McKenzie, Zikirah Harris, Jamarri Joiner and the Estate of Rory McKenzie (hereinafter collectively "Plaintiffs"); Andrew C. Thomson, Deputy, Office of Kern County Counsel, for Defendants County of Kern, Kern County Sheriff's Office, Otis Whinery, Douglas Jauch, Edward Tucker and Patrick Neal (hereinafter collectively "Kern Defendants"); and Mildred K. O'Linn, Esq. of Manning & Kass, Ellrod, Ramirez, Trester, counsel for Defendant TASER International, Inc. with the authority of their respective clients, hereby stipulate as follows:

GOOD CAUSE STATEMENT

1. The parties have repeatedly met and conferred regarding various issues and potential conflicts regarding discovery in this matter in an effort to informally resolve these matters.

2. Former Kern County Coroner's Forensic Pathologist Dr. Joseph Pestaner currently resides in the State of Maryland and works in Washington, D.C. Dr. Pestaner conducted an autopsy of Plaintiffs' decedent, Rory McKenzie, on July 3, 2009. In light of the fact that medical issues related to causation are key issues in this action, and in light of the state of the testimony from other percipient witnesses related to these issues, Dr. Pestaner's testimony is highly material to this case.

3. Plaintiffs have been informed that Dr. Pestaner has been subpoenaed to testify in a Federal action in the final week of June 2011. Plaintiffs are serving a deposition subpoena on Dr. Pestaner with a deposition date of July 1, 2011, however, Plaintiffs report that because Dr. Pestaner is expected to be testifying in a federal trial, plaintiffs anticipate Dr. Pestaner will be unavailable to testify July 1, 2011.

4. Plaintiffs have been informed that Dr. Pestaner has advised he has more flexibility in July 2011. In particular, Dr. Pestaner reports to plaintiffs that the week of July 11, 2011 is presently open for deposition.

5. In order to accommodate the schedule of Dr. Pestaner, the parties agree that an additional one (1) month of fact discovery is appropriate for the completion of discovery. However, Defendant TASER will only stipulate to a continuance of discovery deadlines if all case management deadlines -- including expert disclosures, dispositive motions, and trial -- are also continued by an equivalent amount of time.

6. Based upon the foregoing, good cause exists for a one (1) month continuance of the discovery cut-off and all subsequent dates, including the trial date.

7. The parties propose a new trial date in May 2012.

8. The parties respectfully request the Court's consideration of this request.

9. Defendant TASER maintains that, in light of the complex and highly technical causation and medical/scientific facts at issue in Plaintiffs' product liability claims, a staggered discovery-disclosure and related motion case management schedule, comparable to the case management schedule adopted by the Court on May 4, 2010 (Dkt. Doc. 68), and on January 21, 2011 (Dkt. Doc. 80) is essential to prevent undue prejudice to defendant TASER. TASER hereby incorporates by reference here all of its arguments on this issue as stated in the Joint Case Management Statement. (See Dkt. Doc. 66 at 8:1-10:20).

10. Additionally, the Deposition of LaToya McKenzie was scheduled for June 7, 2011, but Ms. McKenzie failed to attend. The Parties have been attempting to informally resolve the associated discovery issues and have proposed to reschedule the deposition of Ms. McKenzie for June 30, 2011, but the date has yet to be confirmed by Plaintiffs' counsel.

STIPULATION FOR CONTINUANCE AND MODIFICATION

11. TASER's stipulation to any modification of the Court's operative case management scheduling order (Dkt. Doc. 68, 73, 80) is conditional upon such modification continuing all case management dates and deadlines, including all pretrial discovery-disclosure and motion deadlines, in such a manner that the case management schedule is modified to emulate the sequence and timing of pretrial discovery-disclosure and motion deadlines, and their relationship to the trial date, as is embodied in the current operative case management schedule. TASER does not stipulate to any continuance of any deadlines that does not emulate the current sequence and timing of discovery, disclosures, motions and trial.

12. In light of the foregoing, the Parties hereby stipulate that Good Cause exists, and the parties respectfully request the Court, to modify the operative case management scheduling order(s) (Dkt. Doc. 68, 73, 80) as follows: DISCOVERY DEADLINES:

CURRENT DATES: PROPOSED DATES: Initial Disclosures: Completed No modification Non-expert Discovery cut-off: July 1, 2011 August 1, 2011

Expert Discovery cut-off: September 16, 2011 October 17, 2011

Expert Disclosures

Plaintiffs' Disclosure: July 8, 2011 August 8, 2011 Defendants' Disclosure: July 18, 2011 August 18, 2011 Supplemental Disclosure:August 2, 1011 September 2, 2011

Non-Dispositive Motion Deadlines:

Filing: September 21, 2011 October 21, 2011 Hearing: October 21, 2011 November 21, 2011 Dispositive Motion Deadlines:

Filing: October 17, 2011 November 17, 2011 Hearing: December 9, 2011 January 9, 2012

Settlement Conference: August 29, 2011 September 29, 2011 at 10:00 Pretrial Conference: January 20, 2012 February 24, 2012

Trial: April 10, 2012 May 15, 2012

IT IS HEREBY STIPULATED.

ORDER

Pursuant to the aforementioned Stipulation of the Parties, and Good Cause appearing therefore, the aforementioned stipulated proposed dates and deadlines are hereby adopted and the case management schedule for the above entitled matter is hereby modified accordingly.

IT IS SO ORDERED.

DEAC_Signature-END:

20110623

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