IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

)

THE UNITED STATES OF AMERICA, )

)

Plaintiff, )

)

v\. ) Case No.: \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

)

)

JACK H. CASTLE, D.D.S., INC. ) **MEMORANDUM OF LAW IN**

d/b/a CASTLE DENTAL CENTER, and ) **SUPPORT OF THE UNITED**

) **STATES\' EMERGENCY MOTION**

FAMILY DENTAL SERVICES OF ) **FOR LEAVE TO FILE A**

TEXAS, INC., ) **NOTICE OF DEPOSITION**

) **[TO PERPETUATE TESTIMONY]{.underline}**

Defendants. )

)

)

**I. [INTRODUCTION]{.underline}**

The United States of America (\"United States\") moves pursuant to Rule
30(a) of the Federal Rules of Civil Procedure for leave to file a notice
of deposition, to perpetuate the testimony of Henry Krakow, before 30
days have elapsed from the filing of the action. Mr. Krakow, who is in
the advanced stages of AIDS, may die or become incompetent to testify
before 30 days have passed. The United States respectfully requests this
court to order the deposition to take place by videotape on October 15,
1993.

Because of the emergency nature of this motion, the United States also
moves, pursuant to Local Rule 6(I), that this court hear the motion at
its earliest opportunity, rather than allowing the regular 20 days
before hearing.

The United States initiated this action against Jack H. Castle, D.D.S.,
Inc. d/b/a Castle Dental Center and Family Dental Services of Texas,
Inc. (\"Defendants\"), pursuant to title III of the Americans with
Disabilities Act of 1990 (\"ADA\"), 42 U.S.C. § 12181 (Supp. 1990). The
complaint alleges that the Defendants, who lease and operate a chain of
dental and orthodontic facilities, have violated title III of the ADA by
excluding persons who have tested positive for the Human
Immunodeficiency Virus (HIV) from receiving services from their
facilities. The United States is asking for relief in the form of: an
injunction requiring the Defendants to discontinue their discriminatory
policy; compensatory damages on behalf of Harrison Totten, a man with
HIV, who was excluded from one of the Defendants\' offices in May and
June of 1992; and civil penalties to vindicate the public interest.

The United States intends to introduce as evidence the testimony of
Henry Krakow, another man who was excluded from one of the Defendants\'
offices in the spring of 1990. Mr. Krakow will testify that he was
excluded from the services of Castle Dental Center because he had HIV,
and that his exclusion from services was carried out, in part, by Jack
H. Castle, D.D.S., a principal of both of Defendant corporations.

# II. DISCUSSION

Federal Rule of Civil Procedure 30(a) provides that:

> Leave of court, granted with or without notice, must be obtained . . .
> if the plaintiff seeks to take a deposition prior to the expiration of
> 30 days after service of the summons and complaint upon any defendant
> . . . .

Fed. R. Civ. P. 30(a). Pursuant to this rule, a plaintiff may take a
deposition to perpetuate the testimony of a witness quickly, if the
witness is in ill health and his or her testimony may be lost forever if
not obtained before 30 days have passed. [Id]{.underline}. advisory
committee\'s note (\"If a witness is aged or infirm, leave of court can
be obtained.\"); [see]{.underline}, [e.g.]{.underline}, [Gibson v. Bagas
Restaurants, Inc.]{.underline}, 87 F.R.D. 60, 62 (W.D. Mo. 1980)
(quoting [Babolia v. Local 456]{.underline}, 11 F.R.D. 423, 424
(S.D.N.Y. 1951)); [Munson Line, Inc. v. Green]{.underline}, 6 F.R.D. 14,
19-20 (S.D.N.Y. 1946), [app. dismissed]{.underline}, 165 F.2d 321 (2d
Cir. 1948).

In fact, in cases of illness and imminent death, not only are
depositions permitted within 30 days of filing suit, the Federal Rules
of Civil Procedure allow them to be taken even [prior]{.underline} to
the filing of a complaint, in order to perpetuate testimony that may
otherwise be lost. [See]{.underline} Fed. R. Civ. P. 27;
[see]{.underline}, [e.g.]{.underline}, [Kurz-Kasch, Inc. v. United
States]{.underline}, 115 F.R.D. 470, 471 (S.D. Ohio 1986) (deposition of
witness, who had had two heart attacks and five pacemakers within last
five years, permitted before action); [In re Petition of Delta Quarries
& Disposal Inc.]{.underline}, 139 F.R.D. 68, 69-70 (M.D. Pa. 1991)
(deposition of witness, who was in danger of dying, permitted before
action); [Windsor v. A Fed. Executive Agency]{.underline}, 614 F. Supp.
1255, 1264-65 (D.C. Tenn. 1983), [aff\'d without op]{.underline}., 767
F.2d 923 (6th Cir. 1985); [Mosseller v. United States]{.underline}, 158
F.2d 380, 381 (2d Cir. 1946) (testimony permitted of injured son who
\"might die before the \[time for bringing the suit\] elapsed\");
[Petition of Ferkauf]{.underline}, 3 F.R.D. 89,

91 (S.D.N.Y. 1943) (early discovery is allowed \"where, for one reason
or another, testimony might be lost to a prospective litigant unless
taken immediately\").

Further, the purpose behind the 30-day rule is not applicable in this
action. The purpose of the 30-day rule is to protect defendants who have
not had the opportunity to learn about the action and to obtain legal
counsel. Fed. R. Civ. P. 30(a) advisory committee\'s note;
[Gibson]{.underline}, 87 F.R.D. at 61. In this action the Defendants
have already retained legal counsel and have had many months\' notice of
the possibility of this lawsuit. The United States notified the
Defendants in January of 1993 of its investigation of the exclusion of
Mr. Totten from a Castle Dental Center office. [See]{.underline} Letter,
dated 1/4/93, from Bebe Novich to William J. Rohrbach, attached as
Exhibit A. Castle retained counsel at that time, and the United States
has been in contact with this counsel. In addition, on September 20,
1993, the United States notified the Defendants of its intent to bring
an action if settlement cannot be reached by October 4, 1993.
[See]{.underline} Letter, dated 9/20/93, from Bebe Novich to William J.
Rohrbach, attached as Exhibit B.

Mr. Krakow\'s physician, Dr. Jane Corboy, believes that he is in danger
of death or incompetency at any time, quite possibly within the next few
weeks. [See]{.underline} Declaration of Dr. Jane Corboy (\"Corboy
Dec.\") (Exhibit C) ¶ 7. Mr. Krakow was diagnosed with HIV in October of
1989, and with AIDS in 1990. [See]{.underline} Declaration of Henry
Krakow (\"Krakow Dec.\") (Exhibit D) ¶ 3; Corboy Dec. ¶ 5.

Since his AIDS diagnosis, he has been seriously ill several times,
including eight hospital stays in the last seven months.
[Id]{.underline}. Recently, Mr. Krakow was hospitalized for heart
failure. [Id]{.underline}. ¶ 6. He underwent surgery and suffered
life-threatening complications. [Id]{.underline}.

Mr. Krakow can testify to an event in which a Castle Dental Center
employee physically threw him out of the Castle office, despite his
being in great pain from an abscessed tooth, because of his HIV.
[See]{.underline} \"Krakow Dec.\" ¶¶ 6, 7. Mr. Krakow can also testify
that, after being thrown out of the Castle office, he brought his
complaint to Jack H. Castle, D.D.S., a principal in both defendant
corporations, who perpetuated the discrimination. [See]{.underline}
[id.]{.underline} ¶¶ 8, 9.

Mr. Krakow\'s testimony may be relevant to many issues in this action,
some of which cannot possibly be anticipated. Unfortunately, because of
Mr. Krakow\'s ill health, there will not be another opportunity to
obtain this testimony if it is not obtained now.

**III. [CONCLUSION]{.underline}**

For the above reasons, the United States urges this court to grant leave
and order that the deposition of Mr. Henry Krakow take place on October
15, 1993.

Respectfully submitted on October 4, 1993.

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

BEBE NOVICH, Attorney in Charge\
Public Access Section\
Civil Rights Division\
U.S. Department of Justice\
P.O. Box 66738\
Washington, D.C. 20035-6738\
(202) 616-231

Of Counsel:

MARIANNE TOMECEK

Assistant United States Attorney

Southern District of Texas

Texas State Bar #20116300

440 Louisiana, Suite 800

Houston, Texas 77002

\(713\) 238-9501