“The overwhelming weight of 7 authority is that the failure to file documents in an original motion or opposition does 8 not turn the late filed documents into ‘newly discovered evidence.’” (collecting 9 cases)
How later courts described this case
- “The overwhelming weight of 7 authority is that the failure to file documents in an original motion or opposition does 8 not turn the late filed documents into ‘newly discovered evidence.’” (collecting 9 cases)
Written by the judges who cited it.
The opinion
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8 UNITED STATES DISTRICT COURT
9 FOR THE EASTERN DISTRICT OF CALIFORNIA
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11 LINNIE STAGGS, as Administrator of No. 2:11-CV-00414-DJC-CSK
the Estate of Robert E. Staggs, and
12 MELISSA STAGGS,
13 Plaintiffs, AMENDED FINAL PRETRIAL ORDER
14 v.
15 DOCTOR’S HOSPITAL OF MANTECA,
INC.; JACK ST. CLAIR, M.D.; CURTIS
16 ALLEN, M.D.; EDWIN BANGI, M.D.;
JOHN KRPAN; MARIO SATTAH, M.D.;
17 ZACHARY STAGGS; and ALEXA
WINTEMBERG, as next of friend of
18 ALEXA STAGGS,
19 Defendants.
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21 On June 10, 2024, the Court issued the Final Pretrial Order following a final
22 pretrial conference. (See ECF No. 366.) On June 24, 2024, Plaintiffs filed objections
23 to the Final Pretrial Order. (See ECF No. 367.) In light of Plaintiffs’ objections, the
24 Court issues the following Amended Final Pretrial Order, which shall govern the
25 remainder of the proceedings.
26 First, the Court addresses Plaintiffs’ specific objections regarding the expert for
27 Defendant Mario Sattah. Plaintiffs asked that the Court “reconsider its Order allowing
28 substitution of the expert because there is evidence that Defendant Sattah was not
1 diligent in seeking substitution of the expert.” (ECF No. 367 at 2.) As an initial matter,
2 though the Court GRANTS Plaintiff’s request for judicial notice, the stipulation Plaintiffs
3 cite is from August 1, 2022, which necessarily means that this is not new evidence that
4 only recently became available to Plaintiffs. It is thus not a basis for the Court to
5 reconsider its prior decision. See, e.g., School Dist. No. 1J, Multnomah Cnty., Or. v.
6 ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993) (“The overwhelming weight of
7 authority is that the failure to file documents in an original motion or opposition does
8 not turn the late filed documents into ‘newly discovered evidence.’” (collecting
9 cases)). That is sufficient to deny Plaintiffs’ request.
10 However, and more importantly, the Court finds that there is no reason to
11 “require a sworn declaration, preferably from Dr. Marx, that his unavailability could
12 have been known to counsel for Dr. Sattah only very recently.” (ECF No. 367 at 3.) As
13 officers of the court who owe the Court a duty of candor, see California Business and
14 Professions Code section 6068(d), the Court credits the statements provided by
15 counsel at the Final Pretrial Conference that she had been recently informed that Dr.
16 Marx had a medical condition that would not permit his testimony. An unexpected
17 medical emergency has always been sufficient to establish “good cause” under Rule
18 16. See, e.g., Deckers Outdoor Corp. v. Romeo & Juliette, Inc., No. 2:15-cv-02812-
19 ODW (PLAx), 2017 WL 11629880, at *1 (C.D. Cal. Aug. 3, 2017) (granting motion
20 where the original expert “recently suffered a severe medical condition that precludes
21 him from working further on this case”). Therefore, the Court concludes that, even if
22 the Court were to reconsider its prior decision, Defendant Sattah has established
23 good cause and diligence through the representations of his counsel. See, e.g., id.;
24 Landes v. Skil Power Tools, No. 2:12-cv-01252-MCE-KJN, 2013 WL 6859837, at *3
25 (E.D. Cal. Dec. 30, 2013) (granting motion where the movant began search for new
26 expert and promptly conferred with opposing counsel upon learning that the retained
27 expert would no longer adhere to the agreement). Thus, the Court DENIES Plaintiff’s
28 request for reconsideration. (See ECF No. 367 at 2–3.)
1 Second, Plaintiffs asked that the Court limit the new expert’s report and
2 testimony to the “’subject matter and theories already espoused by the former
3 expert.’” (Id. at 3 (quoting Holley v. Gilead Sciences, Inc., No. 19-cv-06972, 2023 WL
4 3607289, at *5 (N.D. Cal. Mar. 27, 2023)).) The Court agrees because “’[w]hen experts
5 are substituted, the substitute expert’s report and testimony is usually limited to the
6 subject matter and theories already espoused by the former expert.’” Jones v. Nat’l Rr.
7 Passenger Corp., No. 15-CV-02726-TSH, 2022 WL 689000, at *3 (N.D. Cal. Feb. 23,
8 2022) (quoting Chien Van Bui v. City and Cnty. of San Francisco, 11-cv-04189-LB, 2019
9 WL 4959056, at *2 (N.D. Cal. Jan. 31, 2008)). Therefore, the Court GRANTS Plaintiffs’
10 request to limit the testimony of the new expert to the same subject matter and
11 theories espoused by Dr. Marx. (See ECF No. 367 at 3.) See also 6/6/2024 Final
12 Pretrial Conference ECRO Recording at 2:24:08–2:24:15 (The Court stating that it
13 “would be prepared to limit the expert to the subject matter that was in Dr. Marx’s
14 report.”)
15 Finally, Plaintiffs asked for two new deadlines. These requests are GRANTED.
16 (See ECF No. 367 at 4.) The Court includes the two new deadlines below in the
17 Amended Final Pretrial Order, but, in short:
18 1. The parties shall exchange any portions of depositions, answers to
19 interrogatories, and responses to requests for admission as
20 contemplated by Local Rule 281(b)(12) by July 17, 2024, with any
21 objections due by July 22, 2024; and
22 2. The parties shall exchange all exhibits no later than 21 days before trial,
23 that is, by July 8, 2024. The other deadlines related to exhibits remains,
24 meaning that the parties shall file a copy of their respective final exhibit
25 lists no later than July 17, 2024, and any objections to exhibits shall be
26 filed on or before July 22, 2024.
27 ////
28 ////
1 On Thursday, June 6, 2024, the Court conducted a final pretrial conference.
2 Attorney Carter Capps White appeared on behalf of Plaintiffs and Attorney Carolyn
3 Northrup appeared on behalf of Defendant Doctor’s Hospital of Manteca, Inc.;
4 Attorney Diana Esquivel appeared on behalf of Defendants Jack St. Clair, Curtis Allen,
5 Edwin Bangi, and Joh Krpan; and Attorneys Curtis E. Jimerson and Stephanie Roundy
6 appeared on behalf of Defendant Mario Sattah. Based on the results of that pretrial
7 conference and the filed objections, the Court now issues this Amended Final Pretrial
8 Order.
9 This action proceeds on Plaintiffs’ Corrected Fourth Amended Complaint (ECF
10 No. 117) against Defendants for the following claims after Defendants’ Motion for
11 Summary Judgment was denied except with respect to the Sixth Claim for Relief (see
12 ECF No. 203):
13 • First Claim for Relief – Denial of rights under the Eighth and Fourteenth
14 Amendments to the U.S. Constitution for deliberate indifference to a
15 serious medical need against:
16 o Defendant Jack St. Clair;
17 o Defendant Edward Bangi; and
18 o Defendant John Krpan.
19 • Second Claim for Relief – Failing to summon and provide medical care
20 under California Government Code section 845.6 against:
21 o Defendant Jack St. Clair;
22 o Defendant Curtis Allen;
23 o Defendant Edward Bangi; and
24 o Defendant John Krpan.
25 • Third Claim for Relief – Negligence for the ongoing failure to diagnose
26 and treat Mr. Stagg’s liver condition against:
27 o Defendant John Krpan;
28 o Defendant Edward Bangi;
1 o Defendant Mario Sattah;
2 o Defendant Jack St. Clair; and
3 o Defendant Doctor’s Hospital of Manteca, Incorporated.
4 • Fourth Claim for Relief – Denial of rights under the Eighth and Fourteenth
5 Amendments to the U.S. Constitution for deliberate indifference in
6 conducting the liver biopsy procedure against:
7 o Defendant John Krpan;
8 o Defendant Curtis Allen;
9 o Defendant Jack St. Clair;
10 o Defendant Mario Sattah;
11 o Defendant Edward Bangi;
12 o Defendant Doctor’s Hospital of Manteca, Incorporated
13 • Seventh Claim for Relief: Wrongful Death under California Code of Civil
14 Procedure § 377.60
15 o (Nominal) Defendant Zachary Staggs;
16 o (Nominal) Defendant Alexa Wintemburg;
17 o Defendant John Krpan;
18 o Defendant Curtis Allen;
19 o Defendant Jack St. Clair;
20 o Defendant Mario Sattah;
21 o Defendant Edward Bangi; and
22 o Defendant Doctor’s Hospital of Manteca, Incorporated
23 • Eighth Claim for Relief: Denial of rights under the Fourteenth
24 Amendment to the U.S. Constitution for loss of companionship
25 o Defendant John Krpan;
26 o Defendant Curtis Allen;
27 o Defendant Jack St. Clair;
28 o Defendant Mario Sattah;
1 o Defendant Edward Bangi; and
2 o Defendant Doctor’s Hospital of Manteca, Incorporated
3 This matter is set for trial on July 29, 2024.
4 I. Jurisdiction/Venue
5 Jurisdiction is predicated on federal question jurisdiction under 28 U.S.C.
6 § 1331. Venue is proper pursuant to 28 U.S.C. § 1391(b). Venue and Jurisdiction are
7 not contested.
8 II. Jury
9 Both parties have timely requested trial by Jury.
10 III. Motions in Limine
11 The parties have not yet filed motions in limine. The Court does not encourage
12 the filing of motions in limine unless they are addressed to issues that can realistically
13 be resolved by the Court prior to trial and without reference to the other evidence
14 which will be introduced by the parties at trial. Any motions in limine counsel elect to
15 file shall be filed on or before July 17, 2024. Each party’s motions in limine should be
16 filed in a single document with each motion beginning on a new page within that
17 document. Opposition shall be filed on or before July 22, 2024. Each party’s
18 oppositions to motions in limine should be filed in a single document with each
19 opposition beginning on a new page within that document. Where necessary for
20 sealing purposes, a motion in limine or opposition to a motion in limine may be filed
21 separately from the rest of the motions/oppositions. Parties should be prepared to
22 present argument on these motions at the final status conference.
23 IV. Witnesses
24 Plaintiffs’ and Defendants’ witnesses shall be those described in the Joint
25 Pretrial Statement unless a party updates their witness list by July 17, 2024. (See ECF
26 No. 364 at 24, 31–43 (providing Exs. A–D containing each party’s witness list).) Each
27 party may call any witnesses designated by the other.
28 The Court does not allow undisclosed witnesses to be called for any purpose,
1 including impeachment or rebuttal, unless they meet the following criteria:
2 1. The party offering the witness demonstrates that the witness is for the
3 purpose of rebutting evidence that could not be reasonably anticipated
4 at the pretrial conference, or
5 2. The witness was discovered after the pretrial conference and the
6 proffering party makes the showing described below.
7 Upon the post pretrial discovery of any witness a party wishes to present at trial,
8 the party shall promptly inform the court and opposing parties of the existence of the
9 unlisted witnesses by filing a notice on the docket so the court may consider whether
10 the witnesses shall be permitted to testify at trial. The witnesses will not be permitted
11 unless:
12 1. The witness could not reasonably have been discovered prior to the
13 discovery cutoff;
14 2. The court and opposing parties were promptly notified upon discovery
15 of the witness;
16 3. If time permitted, the party proffered the witness for deposition; and
17 4. If time did not permit, a reasonable summary of the witness’s testimony
18 was provided to opposing parties.
19 V. Exhibits
20 Plaintiffs’ and Defendants’ exhibits shall be those identified in the Joint Pretrial
21 Statement unless a party updates their exhibit list by July 17, 2024. (See ECF No. 264
22 at 24, 44–52 (providing Exs. E–H containing each party’s exhibit list).). If there are joint
23 exhibits, also state where those are identified. Counsel and/or parties shall file a copy
24 of their respective final exhibit lists no later than July 17, 2024.
25 No exhibit shall be marked with or entered into evidence under multiple exhibit
26 numbers. All exhibits must be pre-marked as discussed below.
27 At trial, joint exhibits shall be identified as JX and listed numerically, e.g., JX-1,
28 JX-2. Plaintiffs’ exhibits shall be listed numerically, and Defendants’ exhibits shall be
1 listed alphabetically. The parties must prepare three (3) separate exhibit binders for
2 use by the court at trial, with a side tab identifying each exhibit in accordance with the
3 specifications above. Each binder shall have an identification label on the front and
4 spine. The final exhibit binders are due to the court on the first day of trial.
5 The parties must exchange exhibits no later than 21 days before trial, that is, by
6 July 8, 2024. Any objections to exhibits shall be filed on or before July 22, 2024. In
7 making any objection, the party is to set forth the grounds for the objection. As to
8 each exhibit that is not objected to, no further foundation will be required for it to be
9 received into evidence, if offered.
10 The court will not admit exhibits other than those identified on the exhibit lists
11 referenced above unless:
12 1. The party proffering the exhibit demonstrates that the exhibit is for the
13 purpose of rebutting evidence that could not have been reasonably
14 anticipated, or
15 2. The exhibit was discovered after the issuance of this order and the
16 proffering party makes the showing required in paragraph B, below.
17 Upon the discovery of exhibits after the discovery cutoff, a party shall promptly
18 inform the court and opposing parties of the existence of such exhibits by filing a
19 notice on the docket so that the court may consider their admissibility at trial. The
20 exhibits will not be received unless the proffering party demonstrates:
21 1. The exhibits could not reasonably have been discovered earlier;
22 2. The court and the opposing parties were promptly informed of their
23 existence;
24 3. The proffering party forwarded a copy of the exhibits (if physically
25 possible) to the opposing party. If the exhibits may not be copied the
26 proffering party must show that it has made the exhibits reasonably
27 available for inspection by the opposing parties.
28 ////
1 VI. Deposition Excerpts and Excerpts of Discovery Responses
2 The parties have indicated that they intend to offer portions of depositions,
3 answers to interrogatories, and responses to requests for admission as contemplated
4 by Local Rule 281(b)(12). (See ECF No. 367 at 4.) The parties shall exchange any
5 portions of depositions, answers to interrogatories, and responses to requests for
6 admission by July 17, 2024, with any objections due by July 22, 2024.
7 VII. Further Discovery
8 Discovery has been completed and is now closed.
9 VIII. Stipulations
10 The parties have agreed to the following stipulations (see ECF No. 364 at 25–
11 26):
12 • The parties stipulate to the authenticity of Decedent’s unaltered records
13 from his central and medical files contained by the California
14 Department of Corrections and Rehabilitation (“CDCR”) and any CDCR
15 record generated and maintained in the regular course of business,
16 which may be used as exhibits at trial. The parties reserve the right to
17 object to such exhibits on other grounds.
18 • The parties stipulate to the authenticity of Decedent’s unaltered medical
19 records from any hospital or institution that was subpoenaed in this case.
20 • The parties stipulate to the ability of the custodians of records to
21 authenticate documents by their declarations to avoid the undue
22 expense of calling the custodians to testify to the authenticity of the
23 documents to be presented at trial.
24 • The parties stipulate that no evidence will be elicited or introduced at
25 trial on the following issues:
26 o Offers to compromise;
27 o CDCR’s or any entity’s indemnification of an adverse judgment;
28 o Plata v. Brown, No. C01-1351-TEH, a class action and appointment
1 of the federal receiver to oversee the provision of medical care of
2 California prisoners;
3 o Any testimony about medical causation and the standard of care
4 from Plaintiffs and non-expert, percipient witnesses; and
5 o How Decedent contracted Hepatitis C (but does not limit
6 Defendants’ ability to elicit testimony or offer evidence concerning
7 Decedent’s drug use for damages purpose subject to the Court’s
8 ruling on the motion in limine regarding Decedent’s drug use).
9 IX. Trial Briefs
10 Trial Briefs from both parties shall be filed on July 17, 2024.
11 X. Joint Statement of the Case
12 Parties shall file a stipulated joint statement of the case by July 17, 2024.
13 XI. Proposed Jury Voir Dire
14 By July 17, 2024, the parties shall file proposed questions to be asked by the
15 Court during jury selection. The parties are advised to limit the number of proposed
16 voir dire and to only propose questions they feel are essential.
17 At this time, each party will be limited to 20 minutes of jury voir dire. However,
18 given the multiple defendants, the parties are ordered to meet and confer on this
19 issue, which will be addressed again at the Final Status Conference on July 26, 2024.
20 XII. Proposed Jury Instructions and Proposed Verdict Form
21 The Court directs the parties to meet and confer in an attempt to generate a
22 joint set of jury instructions and verdict form.
23 On or before July 17, 2024, the parties shall file their Joint Proposed Jury
24 Instructions and a Proposed Verdict Form. All blanks in form instructions should be
25 completed and all brackets removed.
26 If the parties are unable to agree on an instruction and/or verdict form, the
27 parties shall include any such instruction and/or verdict form under a separate
28 heading in the Joint Proposed Jury Instructions or Verdict Form and identify which
1 party proposed the jury instructions or verdict form and the source of and authority for
2 the proposed jury instruction or verdict form. Any objections to a proposed jury
3 instruction or proposed verdict form shall be included in the Joint Proposed Jury
4 Instructions or Verdict Form. Any objection should identify the party objecting,
5 provide a concise statement of the reasons for the objection, and include any relevant
6 citation to authority. When applicable, the objecting party shall include an alternative
7 proposed instruction on the issue or identify which of his or her own proposed
8 instructions covers the subject.
9 XIII. Filing Documents
10 All documents mentioned above, including but not limited to Proposed Jury
11 Instructions, Witness Lists, Exhibit Lists, Joint Statement of the Case, Proposed Verdict
12 Form, and Motions in Limine, shall be filed on the docket in this action and also
13 emailed as a Word document to djcorders@caed.uscourts.gov.
14 XIV. Final Status Conference
15 The Court will conduct a Final Status Conference on July 26, 2024. At that time,
16 the Court will hear argument on motions in limine and any outstanding matters to be
17 resolved before trial.
18 XV. Trial Date/Estimated Time of Trial
19 Jury Trial is set for July 29, 2024, at 8:30 a.m. in Courtroom 10 before the
20 Honorable Daniel J. Calabretta. Trial is anticipated to last seven to ten court days.
21 The parties are directed to Judge Calabretta’s standard procedures available on his
22 webpage on the court’s website.
23 The parties are to contact Gabriel Michel, Courtroom Deputy for Judge
24 Calabretta, via email (gmichel@caed.uscourts.gov), one week prior to trial to ascertain
25 the status of the trial date.
26 XVI. Objections to Pretrial Order
27 No further objections to this pretrial order are contemplated. The parties are
28 reminded that pursuant to Rule 16(e) of the Federal Rules of Civil Procedure and Local
1 | Rule 283 of this Court, this order shall control the subsequent course of this action and
2 | shall be modified only to prevent manifest injustice.
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A IT IS SO ORDERED.
5 | Dated: _July 3, 2024 Donel J Cob bn tto—
Hon. Daniel alabretta
6 UNITED STATES DISTRICT JUDGE
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