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Suhn v. Breg

April 22, 2010

MARCUS J. SUHN, PLAINTIFF,
v.
BREG, INC., A CALIFORNIA CORPORATION, DEFENDANT.
KELLY J. KOCH, PLAINTIFF,
v.
BREG, INC., A CALIFORNIA CORPORATION, DEFENDANT.



The opinion of the court was delivered by: John E. Simko United States Magistrate Judge

ORDER ON MOTIONS

Pending are identical motions in each case on which rulings were previously deferred while waiting to learn whether the United States Judicial Panel on Multidistrict Litigation would grant or deny transfer of this case. The Panel denied transfer on April 14, 2010 (Koch Doc. 98 & Suhn Doc. 111). Each plaintiff moved to allow late disclosure of expert witness Dr. Dragoo (Koch Doc. 55 & Suhn Doc. 68). In both cases the defense moved to quash a notice to take the deposition of Dr. Dragoo (Koch Doc. 62 & Suhn Doc. 75).

JURISDICTION

These matters were referred to the Magistrate Judge pursuant to Chief Judge Schreier's Orders of Referral of March 16, 2010, in the respective cases (Suhn Doc. 80 & Koch Doc. 67) and Chief Judge Schreier's Standing Order dated March 18, 2010.

BACKGROUND

Plaintiffs Argue

Plaintiff respectfully asks the Court for an extension of time to disclose an expert beyond the deadline of December 4, 2009 set forth in the scheduling order in this matter. Specifically, plaintiff seeks leave of the Court to disclose Jason Dragoo, M.D. as a general causation expert witness. Although this disclosure is untimely, plaintiff believes the delay is substantially justified. Furthermore, disclosing this additional expert will not cause prejudice to the defendant or the Court. Breg and its experts are familiar with Dr. Dragoo's report and prior deposition testimony. Breg will have an opportunity to cross-examine him further at his deposition in a related case, which it has noticed for March 26, 2010. The Court has not yet set a trial date for this matter.

(Koch Doc 56, p. 1, & Suhn Doc. 69, p. 1).

Dr. Dragoo's testimony is important to plaintiff in order to meet his burden of proof on causation. Dr. Dragoo and his colleagues were at the forefront of the research to examine whether it was the toxicity of the local anesthetics infused through the pain pumps into the joint space that was causing an alarmingly high rate of chondrolysis of otherwise young and healthy patients, as opposed to some other mechanism. Breg itself acknowledges that Dr. Dragoo is a "prize witness" for plaintiff.

(Koch Doc 56, p. 4, & Suhn Doc. 69, p. 4).

Dr. Dragoo's schedule did not permit him to be available for separate depositions by each defendant on the same subject matter.

(Koch Doc 56, p. 5, & Suhn Doc. 69, p. 5).

Breg chose not to do so, even though it knew that there were other newly filed cases in which Breg was named as a defendant and that Dr. Dragoo would likely be disclosed as an expert in at least some of these cases. Rather than coordinating voluntarily in the discovery of plaintiffs' generic expert witnesses to save time and expense, Breg took strategic advantage of the conflicting deadlines imposed by the various scheduling orders in the pain pump cases. Breg refused to participate in depositions of plaintiffs' generic causation expert witnesses (i.e., witnesses whose testimony would be used in all cases) if it was premature to disclose these experts in any cases involving Breg. Breg's strategy put plaintiffs in a bind, because if Dr. Dragoo was not available for a separate deposition by Breg before the discovery deadlines, plaintiffs could not disclose him as an expert. That is what happened in this case. ...


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