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Clark v. W & M Kraft

January 18, 2007

CHARLES CLARK, ET AL., PLAINTIFFS,
v.
W & M KRAFT, INC., ET AL., DEFENDANTS.



The opinion of the court was delivered by: S. Arthur Spiegel United States Senior District Judge

OPINION AND ORDER

This matter is before the Court on Defendants' Joint Motion for Costs, Extension of Time to Serve Defense Expert Reports, and To Adjust Trial Dates and Pretrial Schedule (doc. 120), and Plaintiffs' Memorandum in Opposition (doc. 121). For the reasons indicated herein, the Court GRANTS IN PART and DENIES IN PART Defendants' Motion in that it DENIES Defendants' Motion for Costs, but it GRANTS a brief extension of the trial calendar.

Defendants bring their Motion, arguing that because Plaintiff Charles Clark left the defendants' medical examination with Dr. Granacher early on December 20, 2006, so as to attend the hearing before this Court on the pending summary judgment motions, the entire trial schedule must be adjusted (doc. 120). Defendants further request that the Court levy costs against Plaintiff for a rescheduled examination (Id.). Defendants indicate that the medical examination had been rescheduled for January 16, 2007, and should that be completed as scheduled, the earliest date by which all expert reports can be prepared is February 20, 2007 (Id.).

Moreover, Defendants argue, they have other trials already scheduled for the week of February 20, 2007 (Id.).

Plaintiffs respond that Defendants improperly blame Mr. Clark for leaving the examination on December 20th, and the real reason for Defendants' motion is an attempt to stonewall the February 20, 2007 trial date (doc. 121). Plaintiffs further indicate that the medical exam was completed by one of Dr. Granacher's assistants on January 16, 2007, and there is plenty of time for Defendants to complete their expert work before the trial (Id.). Plaintiffs further argue the trial should not be delayed due to the schedule conflicts claimed by Consolidated's lawyers (Id.). Plaintiffs argue the firm representing Consolidated has other capable counsel who can overcome any scheduling issues, that the other trials could be rescheduled, and in any event, there is a strong indication that there is no real schedule conflict (Id.).

Having reviewed this matter, the Court is dismayed by the lack of cooperation and what appears to be a continual sniping between the parties. That said, the Court has no doubt that Defendants have been lackadaisical in conducting discovery. The cut-off in the scheduling order was set for September 15, 2006 (doc. 27). Defendants notified Plaintiffs' counsel on November 6, 2006 that a two-day medical exam was scheduled in two weeks, in Lexington, Kentucky. Plaintiffs responded that an exam in a distant city would be unduly burdensome, considering Mr. Clark's condition. When Plaintiffs therefore requested alternative dates closer to Cincinnati, Defendants offered the first alternative date for five weeks later, on December 20, 2006.

Although the Court finds no fault with Plaintiff Charles Clark for desiring to attend the December 20, 2006 hearing, particularly since Defendants' counsel were advised in advance of his desire to do so, the bottom line as far as the Court is concerned, is that Defendants' experts must review Dr. Granacher's report. It is reasonable for Dr. Granacher to take two weeks to complete his report, that is, by January 30, 2007. It is further reasonable to anticipate that further review of Dr. Granacher's report and the preparation of other reports will take no less than twenty days.

The Court agrees with Plaintiffs that Defendants should be able to arrange for counsel to be present at trial, taking into account the staffing resources available at their respective law firms. The Court therefore does not find well-taken Defendants' arguments that their counsel is unavailable for trial, and will not entertain such arguments henceforth.

The Court finds absolutely no basis for ordering Plaintiffs to pay Defendants' costs and expenses in completing the medical exam. The Court therefore DENIES IN PART Defendants' Motion as to their request for costs (doc. 120).

Finally, for the reasons indicated herein, the Court GRANTS IN PART Defendants' Motion (doc. 120) to the extent that it GRANTS Defendants until February 20, 2007 to serve defense expert reports, it VACATES the January 25, 2007 final pretrial conference and RESETS such conference for 10:00 A.M. on April 4, 2007, it VACATES the February 20, 2007 trial date, and RESETS the two-week trial to commence on June 5, 2007. This is a PEREMPTORY setting.

SO ORDERED.

20070118

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