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28 STIPULATION AND ORDER RE PRE-TRIAL SCHEDULING DATES -1-

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CHARLES S. PAINTER (SBN 89045)

REGINALD A. DUNN (SBN 192632)

ERICKSEN, ARBUTHNOT, KILDUFF,

DAY & LINDSTROM, INC.

100 Howe Avenue, Suite 110 South

Sacramento, CA 95825-8201

(916) 483-5181 Telephone

(916) 483-7558 Facsimile

Attorneys for Defendant

EAGLE MOLDING COMPANY # 1

UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

ROY B. SMITH; VICKI SMITH 

Plaintiffs,

vs.

EAGLE MOLDING COMPANY #1

Defendants.

 

LIBERTY MUTUAL FIRE INSURANCE

COMPANY, 

Intervenor.

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CASE NO. CIV.S-04-1245 LKK GGH

STIPULATION AND ORDER TO

MOVE PRE-TRIAL SCHEDULING

DATES

[FRCP section 35(a)(b)]

COME NOW, plaintiffs ROY AND VICKI SMITH by and through their attorney of record,

Anthony J. Poidmore of the LAW OFFICES OF ANTHONY J. POIDMORE; defendant EAGLE

MOLDING COMPANY#1, by and through its attorney of record, Charles S. Painter of the law firm

ERICKSEN, ARBUTHNOT, KILDUFF, DAY & LINDSTROM, INC.; and intervenor, LIBERTY

MUTUAL FIRE INSURANCE COMPANY, by and through its attorney of records, Robert R.

Luster, Jr., of the law firm BROWNWOOD, CHAZEAN & CANNON and pursuant to the Federal

Rules of Civil Procedure, Rule 16, (b) submit the following stipulation for the court’s consideration:

Although the parties have been diligent in their efforts to complete discovery in order to

prepare this case for trial, the parties have been unable to complete all necessary discovery so that

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experts and their reports can be disclosed on May 30, 2006. The parties, however, do not believe

it is necessary to move the current trial date of May 8, 2007. 

The parties stipulate to an order continuing all dates set forth in the court’s Status (Pre-Trial

Scheduling) Conference order dated January 11, 2005, for a minimum of 90 days as follows:

The parties request this order based upon the following good cause:

Event Current Due Date Proposed Due Date

Disclose Experts & Reports May 30, 2006 August 30, 2006

Last Day re Motions To

Compel Discovery

June 30, 2006 September 30, 2006

Summary Statement of Law

& Motion Practice Heard

July 14, 2006 October 16, 2006

Closure of Discovery July 30, 2006 October 30, 2006

Last Day re Non-discovery

Law & Motion 

September 30, 2006 November 30, 2006

Last Day to File Respective

Pre-Trial Statements

Per Local Rules 40-28 and

16-281

Per Local Rules 40-28 and

16-281

Last Day to File Joint

Statement re Disputed and

Undisputed Factual Issues

Per Local Rule 16-281(b)(3),

(4), and (6)

Per Local Rule 16-281(b)(3),

(4), and (6)

Final Pre-Trial Conference February 5, 2007 February 5, 2007

Trial May 8, 2007 May 8, 2007

I.

THE NATURE OF THE CASE

This action arises out of a very serious industrial accident which occurred on September 18,

2002, at defendant’s place of business in Yuba City, California. 

Plaintiff, ROY B SMITH, is a long haul truck driver. At the time of this incident he was 50

years old and employed as a truck driver by Maverick Transportation which is headquartered in Little

Rock, Arkansas. Plaintiffs, ROY B. SMITH AND VICKI SMITH, resided in Arcola, Texas.

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28 STIPULATION AND ORDER RE PRE-TRIAL SCHEDULING DATES -3-

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 ROY B. SMITH claims he was seriously injured during the loading of his tractor trailer rig

when a very heavy tarp used to cover the load fell and struck him on the head. Plaintiff contends he

has suffered a very serious closed head injury as well as injuries to his spinal column. As a result

of this incident plaintiff, ROY B. SMITH, claims the following injuries:

"Cervical fracture, Thoracic Crush Fracture T6, Lower back pain, Depression, Nerve

damage C6, C7 & C8, and causing weakness of both hands and loss of fine motor

skills.”

The majority of his medical treatment has been in Texas. 

He has undergone the following medical procedures:

"Cervical spine exploration, bilateral C5-6 and left C6-7 laminectomy and

foraminotomy. Resections of fractured facet bony process of left C6-7 with nerve

root decompression (followed by posterior spinous process fusion ). Anterior cervical

discectomy, fusion with plating C5-7, posterior exploration of fusion C5."

Plaintiff contends he will need additional medical treatment and surgeries in the future. 

His medical expenses exceed $200,000.00.

Plaintiff, ROY B. SMITH, has not worked since the accident and he claims his wage loss

claim to date exceeds $200,000.00. Plaintiff is making a future wage loss claim and alleges it will

exceed $4 million. Plaintiff, VICKI SMITH, is making a loss of consortium claim.

II.

PROCEDURAL HISTORY OF CASE AND 

DISCOVERY ATTEMPTED AND COMPLETED 

Attached as Exhibit “A” to this Stipulation is a complete Procedural History of this case as

well as the discovery conducted to date and the discovery that has been attempted and/or is currently

scheduled to take place.

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III.

GOOD CAUSE FOR ORDER RESETTING 

PRETRIAL DATES AND TRIAL DATES

The parties have worked diligently together to complete discovery in a timely manner. Due

to (a) the nature of Plaintiff's injuries, (b) claimed monetary damages, (c) and the fact that he is not

a resident of California, efforts to complete discovery timely have been complicated. Adding to this

complication is the fact that Plaintiff's wife is now ill. This has further hampered Plaintiff's

availability for deposition. All parties have extended professional courteous and have been flexible

throughout the discovery process, but despite their best efforts Plaintiff's deposition has not been

completed.

The parties do not believe that the May 8, 2007 trial date needs to be moved. Instead, it is

the pre-scheduling dates that need to be altered so that the parties can prepare their respective cases

in a complete and thorough manner. Once this occurs, all parties will be in a position to determine

if settlement is a reasonable possibility. In this regard, all parties are scheduled to disclose experts

and their respective reports on or before May 30, 2007. Defendant has retained medical experts in

the areas of physical medicine and rehabilitation, neuro-surgery, neurology, neuropsychology,

psychiatry and vocational rehabilitation. In order for Defendant's experts to prepare complete and

thorough reports, Plaintiff's deposition needs to be completed. Plaintiff is in a different position in

this regard, since his experts would seemingly have unfettered access to Plaintiff's version of events,

and current complaints via telephone or other means of communication.

Defendant had scheduled plaintiff to travel from Texas to California on October 03, 2005

through October 7, 2005 for his deposition and medical examinations. Plaintiff Roy Smith was

scheduled for deposition on October 03, 2005 and his medical examinations were set to go forward

as follows:

a. On 10/4/05 the Plaintiff was scheduled for an Independent Medical Examination with

Richard Rubenstein, M.D., neurologist, in the Bay Area.

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b. On 10/5/05 the Plaintiff was scheduled for an Independent Medical Examination with

Stuart M. Pickel, M.D., psychiatrist in the Bay Area..

c. On 10/5/05 and 10/6/05 the Plaintiff was scheduled for an Independent Medical

Examination with William D. Hooker, Ph.D., neuropsychologist in the Bay Area..

d. On 10/7/05 the Plaintiff was scheduled for an Independent Medical Examination with

Laura Anderson, M.D., neurosurgeon in Sacramento, California. 

Shortly before the date set for Mr. Smith’s deposition and medical examinations, his wife,

Vicki, was hospitalized. This caused the deposition and medical examinations to be taken off

calendar. 

Plaintiff was ultimately deposed on March 8 and March 9, 2006, but his deposition was not

completed. Due to the illness of Plaintiff's wife and his current Texas residency status, the

deposition has not resumed. 

Defendant will need a minimum of 90 days to (a) coordinate and complete the deposition of

plaintiff, Roy Smith, (b) obtain their written reports, and (c) disclose experts pursuant to the Federal

Rules of Civil Procedure. 

Accordingly, the parties respectfully request this court reset the pretrial and trial date for a

minimum of 90 days as set forth above. The parties believe all necessary discovery can be

completed without the necessity of moving the May 8, 2007 trial date.

In the alternative, if the court is unwilling to issue an order in accordance with this

stipulation, the parties request the court reset the disclosure of experts 45 days in order to allow

defendant time to either (a) file a Noticed Motion on this issue, and/or (b) schedule a telephonic

conference with the Court and all parties to this action. 

IT IS HEREBY STIPULATED AS FOLLOWS:

1. Defendant, EAGLE MOLDING COMPANY, wishes to move the following pre-trial

scheduling dates for a period of 90 days as set forth above.

//

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DATED: April 28, 2006

ERICKSEN, ARBUTHNOT, KILDUFF,

DAY & LINDSTROM, INC.

s/ Charles S. Painter

By: 

CHARLES S. PAINTER

Attorney for Defendant

EAGLE MOLDING COMPANY# 1

DATED: April 28, 2006

LAW OFFICES OF ANTHONY J

POIDMORE

s/ Anthony J. Poidmore

By: ________________________________

ANTHONY J. POIDMORE

Attorney for Plaintiffs ROY B.

SMITH and VICKI SMITH

DATED: May 1, 2006

BROWNWOOD, CHAZEAN & CANNON

s/ Robert B. Luster

By: ________________________________

ROBERT B. LUSTER

Attorney for Intervener LIBERTY

MUTUAL FIRE INSURANCE

COMPANY:

ORDER

The schedule set forth above is ADOPTED by the court. 

IT IS SO ORDERED.

DATED: May 2, 2006. /s/Lawrence K. Karlton 

LAWRENCE K. KARLTON

SENIOR JUDGE

UNITED STATES DISTRICT COURT

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