Ken M. Markowitz 

E-mail: kmarkowitz@kennmark.com

Kimberly I. McIntyre 

E-mail: kmcintyre@kennmark.com

KENNEY

& 

MARKOWITZ

L.L.P. ATTORNEYS AT LAW

255 California Street, Suite 1300 

San Francisco, California 94111

Telephone: 415 397-3100 

Facsimile: 415 397-3170 

Web site: http://www.kennmark.com

August 9, 2010 

VIA E-FILING

Magistrate Judge James Larson 

UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF CALIFORNIA

450 Golden Gate Avenue 

Courtroom F, 15th Floor 

San Francisco, CA 94102 

Re: TERRY AND ELLEN AMBROFF v. AMERICAN 

MEDICAL SYSTEMS, INC. 

U.S.D.C., Northern District Case No. C08-04289 JL 

Our File No: 302053-45/35 

Dear Magistrate Judge Larson: 

This letter is to follow up on our appearance at the August 4, 2010 Further Case 

Management Conference, where we discussed an extension of the dates, including the trial date, 

in this matter. Subsequent to the Case Management Conference, we met and conferred to

prepare the enclosed Stipulation addressing the dates discussed with the Court. We appreciate

the Court’s flexibility in allowing us to try this case before the Court, in accordance with the

Court’s schedule, and, upon further discussion, we believe that we can get this case tried to 

verdict in two and one-half weeks. 

On August 5, 2010, we contacted your Courtroom Deputy, Frank Justiliano, to inquire 

whether we could start trial in this matter on a day other than a Monday. Mr. Justiliano indicated 

that the Court would entertain such a request, and he instructed us to put our request in a letter, 

{30115.302053 0141636.DOC}

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Magistrate Judge James Larson 

August 9, 2010 

Page 2 

KENNEY

& 

MARKOWITZ

L.L.P. 

 

{30115.302053 0141636.DOC}

which we do here. As set forth in the enclosed Stipulation, we are proposing that trial in this 

case commence on Thursday, May 12, 2011, assuming the Court is available. 

Thank you for your attention to this matter, as well as for the interest you expressed at the 

Case Management Conference in seeing this case through to completion. 

Yours very truly, 

/s/ Kimberly I. McIntyre 

KEN M. MARKOWITZ 

KIMBERLY I. MCINTYRE 

Attorneys for Defendant 

AMERICAN MEDICAL SYSTEMS, INC. 

Yours very truly, 

/s/ Amy Eskin 

AMY ESKIN 

MARK BURTON 

Attorneys for Plaintiffs 

ELLEN and TERRY AMBROFF 

KIM/njc 

Enclosure 

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AMY ESKIN, ESQ., State Bar No. 127668 

HERSH & HERSH, A Professional Corporation 

601 Van Ness Avenue, Suite 2080 

San Francisco, CA 94102-6388 

Tel: (415) 441-5544 

Fax: (415) 441-7586 

Email: aeskin@hershlaw.com

Attorneys for Plaintiffs ELLEN and TERRY AMBROFF 

KEN M. MARKOWITZ, ESQ., State Bar No. 104674 

KIMBERLY MCINTYRE, ESQ., State Bar No. 184648 

KENNEY & MARKOWITZ, L.L.P 

255 California Street, Suite 1300 

San Francisco, CA 94111 

Tel: (415) 397-3100 

Fax: (415) 397-3170 

Email: kmarkowitz@kennmark.com

 kmcintyre@kennmark.com

Attorneys for Defendant 

AMERICAN MEDICAL SYSTEMS, INC. 

DAN JOHNSON (Pro Hac Vice) 

AMERICAN MEDICAL SYSTEMS, INC. 

10700 Bren Road West 

Minnetonka, MN 55343 

Tel: (952) 933-4666 

Fax: (952) 930-6157 

Email: Dan.Johnson@AmericanMedicalSystems.com

Attorneys for Defendant 

AMERICAN MEDICAL SYSTEMS, INC. 

IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF CALIFORNIA 

SAN FRANCISCO – ECF PROGRAM 

{30115.302053 0141586.DOC} 

STIPULATION AND [PROPOSED]ORDER TO MODIFY PRE-TRIAL ORDER 

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ELLEN AMBROFF and TERRY 

AMBROFF, 

 Plaintiffs, 

vs. 

AMERICAN MEDICAL SYSTEMS, 

McKESSON CORPORATION, and 

DOES ONE through TWENTY-FIVE, 

inclusive, 

 Defendants. 

)

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)

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CASE NUMBER C 08-04289 JL 

STIPULATION AND [PROPOSED] 

ORDER TO MODIFY PRE-TRIAL

ORDER 

Civ.L.R. 7-12 

This Stipulation is entered into between Plaintiffs Ellen Ambroff and Terry 

Ambroff, by and through their counsel of record, Hersh & Hersh, and defendant American 

Medical Systems, Inc., by and through its counsel of record, Kenney & Markowitz, L.L.P. 

The parties stipulate as follows: 

1. On June 29, 2009, this Court issued its first Case Management and 

Pre-Trial Order in this case with a trial date of December 6, 2010 and other dates set by the 

Court accordingly, including a factual discovery cut-off date of April 5, 2010. 

2. On February 1, 2010, the parties stipulated to a modification of the 

June 29 Pre-Trial Order to extend discovery and related cut-off dates because additional 

time was required to schedule plaintiffs’ Rule 30(b)(6) depositions. The court approved the 

parties’ stipulation for modification of the Pre-Trial Order on February 3, 2010, setting a 

close of fact discovery for June 4, 2010. 

3. Some of plaintiffs’ Rule 30(b)(6) depositions were taken during the 

week of March 1, 2010 at AMS’ corporate office in Minnesota, however not all of AMS’ 

designated witnesses were available during the scheduled week. Plaintiffs thus requested 

and defendant agreed to produce four additional AMS employees for deposition in 

Minnesota. 

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4. On May 10, 2010, the parties stipulated to a modification of the 

February 3, 2010 Pre-Trial Order to extend discovery and related cut-off dates for several 

reasons. First, plaintiffs wished to take additional depositions of AMS employees pursuant 

to Federal Rule of Civil Procedure 30(b)(6) and there was difficulty getting these 

depositions scheduled because lead trial counsel for AMS was unavailable for several 

weeks in May due to a previously scheduled vacation making it difficult to schedule those 

depositions in Minnesota prior to the fact discovery cut-off date of June 4, 2010. The 

stipulation was also based on the fact that there were difficulties scheduling the deposition 

of plaintiff Ellen Ambroff’s treating physician, Robert Carter, M.D., and on the further 

grounds that associate counsel for AMS was unexpectedly relocating to Australia by the 

end of May and therefore a new associate would need to become familiar with the facts and 

procedural status of this action prior to taking over the handling of this action. 

5. Finally, the parties stipulated to modify the February 3, 2010 PreTrial Order to move the trial of this action from January 31, 2011 to March 28, 2011 

because new associate counsel for AMS will be unavailable from October 2010 through 

December 2010 due to a scheduled maternity leave. 

6. The Court approved the parties’ stipulation for modification of the 

Pre-Trial Order on May 12, 2010. 

7. The May 12, 2010 Pre-Trial Order set various deadlines, including 

setting the close of fact discovery for July 6, 2010, with plaintiffs’ Expert Witness 

Disclosure and Reports due August 6, 2010, defendant’s Expert Witness Disclosure and 

Reports due August 20, 2010, and trial set for March 28, 2011. 

8. Dr. Carter’s deposition, scheduled for May 18, 2010, did not take 

place due to the unavailability of his counsel. His deposition was re-set for June 22, 2010, 

in Placerville, California. The first session of Dr. Carter’s deposition took place on June 

22, 2010. However, due to the schedule of Dr. Carter, the deposition was not completed. 

The next session of Dr. Carter’s deposition took place on July 28, 2010 in Placerville, 

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California. The deposition was not completed. 

9. The parties participated in mediation before court-appointed neutral 

Jacqueline Corley on May 19, 2010. 

10. On June 3, 2010, the parties appeared at the Case Management 

Conference. Numerous discovery issues were discussed, and the possibility of an extension 

of time of certain dates in the Pre-Trial Order was discussed with the Court. 

11. The parties subsequently met and conferred extensively, by and 

through their counsel, regarding the scheduling of plaintiffs’ additional 30(b)(6) depositions 

as well as many other discovery matters. Due to the schedules of the witnesses and counsel 

for both parties, the earliest date that those depositions could take place was during the 

week of July 19, 2010. The depositions were held on July 20, 2010, July 21, 2010, and July 

22, 2010, in Minnesota. 

12. On July 15, 2010, defendant AMS produced a CD of an additional 

2000 pages of documents in response to plaintiffs’ discovery requests included with 

plaintiffs’ deposition notices, bringing the total number of pages of documents produced to 

more than 26,000 pages. 

13. Plaintiff ELLEN AMBROFF appeared for a defense medical 

examination with Craig Comiter, M.D., on July 9, 2010 at 9:00 a.m. Plaintiffs have 

requested a copy of Dr. Comiter’s report. 

14. Defendant AMS provided plaintiffs with an exemplar piece of large 

pore polypropylene mesh on June 16, 2010. 

15. On June 18, 2010, defendant AMS commenced the deposition of one 

of plaintiff ELLEN AMBROFF’S treating physicians, Kenneth R. Stemmle, M.D. Due to 

Dr. Stemmle’s schedule, the deposition was not completed. Dr. Stemmle’s deposition was 

completed on July 15, 2010. 

16. On June 24, 2010, based on the stipulation of the parties, the Court 

modified the May 12, 2010 Pre-Trial Order to extend and set various deadlines, including a 

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fact discovery cut-off of August 6, 2010 to allow for the completion of certain additional 

discovery. 

17. Some of that additional discovery still remains to be conducted, 

including the deposition of another of defendant’s employees, Ginger Glaser, and the 

completion of Dr. Carter’s deposition, as well as outstanding written discovery. Because of 

the schedule of plaintiffs’ counsel, and pre-planned vacations, the parties agreed to extend 

the fact discovery cut-off to September 17, 2010 and to extend all other deadlines, 

including the trial date, set forth in this Court’s June 23, 2010 Order Modifying the PreTrial Order. 

18. For all the above reasons, the parties stipulate to modify the current 

Pre-Trial Order to extend the fact discovery cut-off date to September 17, 2010 in order to 

complete the additional depositions of Ginger Glaser and Dr. Carter and the abovementioned outstanding written discovery and to extend the accompanying dates within the 

Pre-Trial Order as set forth hereinbelow. The trial date would be continued by 45 days. 

19. It is not the intention of the parties to waive any rights to object to 

discovery requests by this Stipulation. 

20. For good cause, the parties stipulate to and respectfully request that 

the Court continue the discovery dates within the Pre-Trial Order and accompanying dates, 

including the trial date, as follows: 

DISCOVERY

Non-Expert Discovery Cutoff September 17, 2010 

Designation of Plaintiffs’ Experts with Reports October 22, 2010 

Designation of Defendants’ Experts with Reports November 5, 2010 

Designation of Rebuttal Experts with Reports November 19, 2010 

Expert Discovery Cutoff December 17, 2010 

DISPOSITIVE MOTIONS

Last Day to Hear Case Dispositive Motions April 15, 2011 

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STIPULATION AND [PROPOSED]ORDER TO MODIFY PRE-TRIAL ORDER 

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//// 

PRETRAL CONFERENCE

Final Pre-Trial Conference at 11:00 a.m. April 18, 2011 

TRIAL DATE

Jury Trial to begin at 9:00 a.m. May 12, 2011 

DATED: August 9, 2010 

HERSH & HERSH 

A Professional Corporation 

By___/s/ Amy Eskin__________________ 

 AMY ESKIN 

 Attorneys for Plaintiffs 

DATED: August 9, 2010 

KENNEY & MARKOWITZ, L.L. P. 

By___/s/ Kimberly I. McIntyre___________ 

 KEN M. MARKOWITZ 

 KIMBERLY I. MCINTYRE 

 Attorneys for Defendant AMERICAN 

 MEDICAL SYSTEMS, INC. 

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STIPULATION AND [PROPOSED]ORDER TO MODIFY PRE-TRIAL ORDER 

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STIPULATION AND [PROPOSED]ORDER TO MODIFY PRE-TRIAL ORDER 

[PROPOSED] ORDER

Pursuant to the parties’ stipulation and request for modification of the 

Court’s Case Management Order and Pre-Trial Order, the following schedule shall apply to 

this case: 

DISCOVERY

Non-Expert Discovery Cutoff September 17, 2010 

Designation of Plaintiffs’ Experts with Reports October 22, 2010 

Designation of Defendants’ Experts with Reports November 5, 2010 

Designation of Rebuttal Experts with Reports November 19, 2010 

Expert Discovery Cutoff December 17, 2010 

DISPOSITIVE MOTIONS

Last Day to Hear Case Dispositive Motions April 15, 2011 

PRETRAL CONFERENCE

Final Pre-Trial Conference at 11:00 a.m. April 18, 2011 

TRIAL DATE

Jury Trial to begin at 9:00 a.m. May 12, 2011 

IT IS SO ORDERED: 

DATED: 

 

HON. JAMES LARSON 

UNITED STATES MAGISTRATE JUDGE 

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