Atteberry v. Smith's Food & Drug Centers, Inc.

D. Nevada

Atteberry v. Smith's Food & Drug Centers, Inc.

DecidedJune 22, 2022

Docket2:21-cv-01984

StatusUnknown

This text of Atteberry v. Smith's Food & Drug Centers, Inc. (Atteberry v. Smith's Food & Drug Centers, Inc.) is published on Counsel Stack Legal Research, covering District Court, D. Nevada primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Atteberry v. Smith's Food & Drug Centers, Inc., (D. Nev. 2022).

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Opinion

1 JERRY S. BUSBY Nevada Bar #001107 2 GREGORY A. KRAEMER Nevada Bar #010911 3 COOPER LEVENSON, P.A. 3016 West Charleston Boulevard - #195 4 Las Vegas, Nevada 89102 (702)366-1125 5 FAX: (702) 366-1857 jbusby@cooperlevenson.com 6 gkraemer@cooperlevenson.com 7 Attorneys for Defendant SMITH’S FOOD & DRUG CENTERS, INC. 8 9 UNITED STATES DISTRICT COURT 10 DISTRICT OF NEVADA 11 SHERRIE ATTEBERRY, an individual, Case No. 2:21-cv-01984-CDS-EJY 12 Plaintiff, 13 vs. STIPULATION AND ORDER TO EXTEND THE REBUTTAL EXPERT 14 SMITH’S FOOD AND DRUG CENTERS, DISCLOSURE DEADLINE INC., d/b/a SMITH’S FOOD AND DRUG 15 CENTER; TYLER TATE, an individual; DOE (SECOND REQUEST) INDIVIDUALS I through XX; ROE LEGAL 16 ENTITIES I through XX, inclusive, 17 Defendants. 18 19 The deadline for rebuttal-experts is June 29, 2022. Pursuant to LR II 26-4, a request made 20 within 21 days of the expiration of a deadline that the parties seek to extend must also be supported 21 by a showing of good cause. See LR 26-3. To establish good cause, the Court looks to the diligence 22 of the party that seeks the extension. Safeco Ins. Co. of Am. v. Air Vent, Inc., Case No. 2:20-01579, 23 2021 U.S. Dist. LEXIS 95692, *1 (May 19, 2021) (citing Coleman v. Quaker Oats Co., 232 F.3d 24 1271, 1294-95 (9th Cir. 2000)). Good cause is present if the deadline at issue “cannot reasonably be 25 met despite the diligence of the party seeking the extension." Johnson v. Mammoth Recreations, Inc., 26 975 F.2d 604, 608-09 (9th Cir. 1992). 27 Here, on June 18, 2022, defense counsel received a telephone call from his retained rebuttal 28 expert, Dr. Vladimir Sinkov, that he could not complete his rebuttal report in time for the rebuttal 1 expert disclosure deadline. On June 1, 2022, Plaintiff served Defendant with the expert designation 2 of David Fish, M.D. According to Dr. Fish, Plaintiff’s complaints and treatment are related to the 3 accident based on the fact that she had not required any medical treatment to her neck in the 11 years 4 preceding the accident. Further, Dr. Fish opines that Plaintiff may require future treatment for her 5 cervical spine and included in his report a Life Care Plan. According to the Life Care Plan, Plaintiff 6 will need $782,450 in future treatment to her cervical spine which is 10 times the amount of 7 Plaintiff’s past medical expenses. 8 In addition, there are additional medical providers that defense counsel identified and 9 requested authorizations from plaintiff’s counsel to request the medical records. Plaintiff’s counsel 10 has informed defense counsel that he will add the providers to the authorization. Finally, the medical 11 records state that Plaintiff received an epidural injection approximately 11 years before the accident. 12 However, the name of the provider that administered the injection was not disclosed. 13 IT IS HEREBY STIPULATED AND AGREED by and between Plaintiff SHERRY 14 ATTEBERRY, by and through her attorney of record, Burke L. Huber, Esq. of the VAN LAW 15 FIRM, and Defendant SMITH’S FOOD & DRUG CENTERS, INC., by and through its attorney of 16 record, Gregory A. Kraemer, Esq. of the law firm COOPER LEVENSON, P.A., that the rebuttal 17 expert disclosure deadline and all other deadlines be extended for a period of 30 days. 18 STATEMENT SPECIFYING THE DISCOVERY THAT HAS BEEN COMPLETED. 19 1. Plaintiff’s Initial Disclosures were served on December 23, 2021. 20 2. Defendant’s Initial Disclosure Statement was served on February 10, 2022. 21 3. Plaintiff served Interrogatories, Requests for Production and Request for Admissions to 22 Defendant. 23 4. Defendant served Interrogatories, Request for Production and Request for Admission to 24 Plaintiff. 25 5. Plaintiff served her responses to Defendant’s Interrogatories, Request for Production and 26 Request for Admission. 27 6. Plaintiff served her Initial Expert Disclosure on May 31, 2022. 28 7. The deposition of Plaintiff was conducted on June 15, 2022. 1 A. SPECIFIC DESCRIPTION OF THE DISCOVERY THAT 2 REMAINS TO BE COMPLETED. 3 1. Collect Plaintiff’s medical records from additional providers identified in her medical 4 records. 5 2. Defendant to disclose Dr. Vladimir Sinkov as a rebuttal expert. 6 3. Plaintiff to take the deposition of SMITH’S Rule 30(b)(6) witness. 7 4. The depositions of the medical expert witnesses. 8 9 B. REASONS WHY THE DISCOVERY REMAINING WAS NOT 10 COMPLETED WITHIN THE DEADLINES CONTAINED IN THE DISCOVERY SCHEDULING ORDER 11 12 The need for Defendant to retain a medical expert in this case did not arise until Plaintiff’s 13 Initial Expert Disclosure served on June 1, 2022. Specifically, the Life Care Plan, which was 14 included in Dr. Fish’s report, calls for significant damages that require a medical expert to review. 15 Defendant retained Dr. Sinkov to provide a report; however, on June 18, 2022, Dr. Sinkov’s office 16 informed defense counsel that he needed additional time to review the medical records, needed time 17 to review records that have been disclosed, and thus could not provide his report in time for the June 18 29, 2022 rebuttal expert disclosure deadline. 19 / / / 20 / / / 21 / / / 22 / / / 23 / / / 24 / / / 25 / / / 26 / / / 27 / / / 28 / / / 1 C. PROPOSED SCHEDULE FOR COMPLETING ALL REMAINING 5 DISCOVERY

3 Pursuant to Local Rule 26-4(d), the parties propose the following new discovery deadlines: 4 Event Current Deadline Propesed-Deadline 5 Disclosure of Experts 05/31/2022 N/A 6 Disclosure Of Rebuttal Experts 06/29/2022 07/29/2022 Close Of Discovery 08/01/2022 09/01/2022 7 Dispositive Motions 08/29/2022 9/29/2022 8 Pre-Trial Order 09/29/2022 10/28/2022 9 RESPECTFULLY SUBMITTED this 22nd day of June, 2022. VAN LAW FIRM COOPER LEVENSON, P.A. 11|| /s/ Burke L. Huber /s/ Gregory A. Kraemer Burke L. Huber, Esq. Gregory A. Kraemer, Esq. Nevada Bar No. 010902 Nevada Bar No.: 10911 1290 S. Jones Blvd. 3016 West Charleston Blvd. #195 Las Vegas, Nevada 89146 Las Vegas, NV 89102 14|| Attorneys for Plaintiff Attorneys for Defendant Smith’s Food & Drug Centers, Inc. 15 16 7 IT IS SO ORDERED. 18 19 DATED this 22nd day of June, 2022.

20 21 UNITED STA IAGISTRATE JUDGE 22 23 24 25 26 27 28

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1 JERRY S. BUSBY Nevada Bar #001107 2 GREGORY A. KRAEMER Nevada Bar #010911 3 COOPER LEVENSON, P.A. 3016 West Charleston Boulevard - #195 4 Las Vegas, Nevada 89102 (702)366-1125 5 FAX: (702) 366-1857 jbusby@cooperlevenson.com 6 gkraemer@cooperlevenson.com 7 Attorneys for Defendant SMITH’S FOOD & DRUG CENTERS, INC. 8 9 UNITED STATES DISTRICT COURT 10 DISTRICT OF NEVADA 11 SHERRIE ATTEBERRY, an individual, Case No. 2:21-cv-01984-CDS-EJY 12 Plaintiff, 13 vs. STIPULATION AND ORDER TO EXTEND THE REBUTTAL EXPERT 14 SMITH’S FOOD AND DRUG CENTERS, DISCLOSURE DEADLINE INC., d/b/a SMITH’S FOOD AND DRUG 15 CENTER; TYLER TATE, an individual; DOE (SECOND REQUEST) INDIVIDUALS I through XX; ROE LEGAL 16 ENTITIES I through XX, inclusive, 17 Defendants. 18 19 The deadline for rebuttal-experts is June 29, 2022. Pursuant to LR II 26-4, a request made 20 within 21 days of the expiration of a deadline that the parties seek to extend must also be supported 21 by a showing of good cause. See LR 26-3. To establish good cause, the Court looks to the diligence 22 of the party that seeks the extension. Safeco Ins. Co. of Am. v. Air Vent, Inc., Case No. 2:20-01579, 23 2021 U.S. Dist. LEXIS 95692, *1 (May 19, 2021) (citing Coleman v. Quaker Oats Co., 232 F.3d 24 1271, 1294-95 (9th Cir. 2000)). Good cause is present if the deadline at issue “cannot reasonably be 25 met despite the diligence of the party seeking the extension." Johnson v. Mammoth Recreations, Inc., 26 975 F.2d 604, 608-09 (9th Cir. 1992). 27 Here, on June 18, 2022, defense counsel received a telephone call from his retained rebuttal 28 expert, Dr. Vladimir Sinkov, that he could not complete his rebuttal report in time for the rebuttal 1 expert disclosure deadline. On June 1, 2022, Plaintiff served Defendant with the expert designation 2 of David Fish, M.D. According to Dr. Fish, Plaintiff’s complaints and treatment are related to the 3 accident based on the fact that she had not required any medical treatment to her neck in the 11 years 4 preceding the accident. Further, Dr. Fish opines that Plaintiff may require future treatment for her 5 cervical spine and included in his report a Life Care Plan. According to the Life Care Plan, Plaintiff 6 will need $782,450 in future treatment to her cervical spine which is 10 times the amount of 7 Plaintiff’s past medical expenses. 8 In addition, there are additional medical providers that defense counsel identified and 9 requested authorizations from plaintiff’s counsel to request the medical records. Plaintiff’s counsel 10 has informed defense counsel that he will add the providers to the authorization. Finally, the medical 11 records state that Plaintiff received an epidural injection approximately 11 years before the accident. 12 However, the name of the provider that administered the injection was not disclosed. 13 IT IS HEREBY STIPULATED AND AGREED by and between Plaintiff SHERRY 14 ATTEBERRY, by and through her attorney of record, Burke L. Huber, Esq. of the VAN LAW 15 FIRM, and Defendant SMITH’S FOOD & DRUG CENTERS, INC., by and through its attorney of 16 record, Gregory A. Kraemer, Esq. of the law firm COOPER LEVENSON, P.A., that the rebuttal 17 expert disclosure deadline and all other deadlines be extended for a period of 30 days. 18 STATEMENT SPECIFYING THE DISCOVERY THAT HAS BEEN COMPLETED. 19 1. Plaintiff’s Initial Disclosures were served on December 23, 2021. 20 2. Defendant’s Initial Disclosure Statement was served on February 10, 2022. 21 3. Plaintiff served Interrogatories, Requests for Production and Request for Admissions to 22 Defendant. 23 4. Defendant served Interrogatories, Request for Production and Request for Admission to 24 Plaintiff. 25 5. Plaintiff served her responses to Defendant’s Interrogatories, Request for Production and 26 Request for Admission. 27 6. Plaintiff served her Initial Expert Disclosure on May 31, 2022. 28 7. The deposition of Plaintiff was conducted on June 15, 2022. 1 A. SPECIFIC DESCRIPTION OF THE DISCOVERY THAT 2 REMAINS TO BE COMPLETED. 3 1. Collect Plaintiff’s medical records from additional providers identified in her medical 4 records. 5 2. Defendant to disclose Dr. Vladimir Sinkov as a rebuttal expert. 6 3. Plaintiff to take the deposition of SMITH’S Rule 30(b)(6) witness. 7 4. The depositions of the medical expert witnesses. 8 9 B. REASONS WHY THE DISCOVERY REMAINING WAS NOT 10 COMPLETED WITHIN THE DEADLINES CONTAINED IN THE DISCOVERY SCHEDULING ORDER 11 12 The need for Defendant to retain a medical expert in this case did not arise until Plaintiff’s 13 Initial Expert Disclosure served on June 1, 2022. Specifically, the Life Care Plan, which was 14 included in Dr. Fish’s report, calls for significant damages that require a medical expert to review. 15 Defendant retained Dr. Sinkov to provide a report; however, on June 18, 2022, Dr. Sinkov’s office 16 informed defense counsel that he needed additional time to review the medical records, needed time 17 to review records that have been disclosed, and thus could not provide his report in time for the June 18 29, 2022 rebuttal expert disclosure deadline. 19 / / / 20 / / / 21 / / / 22 / / / 23 / / / 24 / / / 25 / / / 26 / / / 27 / / / 28 / / / 1 C. PROPOSED SCHEDULE FOR COMPLETING ALL REMAINING 5 DISCOVERY

3 Pursuant to Local Rule 26-4(d), the parties propose the following new discovery deadlines: 4 Event Current Deadline Propesed-Deadline 5 Disclosure of Experts 05/31/2022 N/A 6 Disclosure Of Rebuttal Experts 06/29/2022 07/29/2022 Close Of Discovery 08/01/2022 09/01/2022 7 Dispositive Motions 08/29/2022 9/29/2022 8 Pre-Trial Order 09/29/2022 10/28/2022 9 RESPECTFULLY SUBMITTED this 22nd day of June, 2022. VAN LAW FIRM COOPER LEVENSON, P.A. 11|| /s/ Burke L. Huber /s/ Gregory A. Kraemer Burke L. Huber, Esq. Gregory A. Kraemer, Esq. Nevada Bar No. 010902 Nevada Bar No.: 10911 1290 S. Jones Blvd. 3016 West Charleston Blvd. #195 Las Vegas, Nevada 89146 Las Vegas, NV 89102 14|| Attorneys for Plaintiff Attorneys for Defendant Smith’s Food & Drug Centers, Inc. 15 16 7 IT IS SO ORDERED. 18 19 DATED this 22nd day of June, 2022.

20 21 UNITED STA IAGISTRATE JUDGE 22 23 24 25 26 27 28

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