Alexander et al v. Costco Wholesale Corporation et al, No. 2:2021cv00509 - Document 13 (D. Nev. 2021)

Court Description: ORDER granting 12 Stipulation - Discovery due by 8/26/2022. Motions due by 9/24/2022. Proposed Joint Pretrial Order due by 10/25/2022. Signed by Magistrate Judge Cam Ferenbach on 12/15/2021. (Copies have been distributed pursuant to the NEF - DRS)

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Alexander et al v. Costco Wholesale Corporation et al Doc. 13 Case 2:21-cv-00509-APG-VCF Document 13 Filed 12/15/21 Page 1 of 12 1 2 3 4 5 6 7 BACKUS, CARRANZA & BURDEN 3050 SOUTH DURANGO LAS VEGAS, NEVADA 89117 TELE: (702) 872-5555 FAX: (702) 872-5545 8 Edgar Carranza, Esq. Nevada State Bar No. 5902 Jacquelyn Franco, Esq. Nevada State Bar No. 13484 BACKUS, CARRANZA & BURDEN 3050 S. Durango Drive Las Vegas, NV 89117 (702) 872-5555 (702) 872-5545 facsimile ecarranza@backuslaw.com Attorney for Defendants COSTCO WHOLESALE CORPORATION 9 UNITED STATES DISTRICT COURT 10 DISTRICT OF NEVADA 11 12 13 SARAH ELIZABETH ALEXANDER, an individual; ROBERT ROY ALEXANDER, an individual. Plaintiffs, 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 vs. COSTCO WHOLESALE CORPORATION, dba Costco, a Foreign Corporation, VALLEY CONTAX INC.; DOES I-X; and ROE BUSINESS ENTITIES XI – XX, inclusive, Defendants. ) ) Case No.: 2:21-cv-00509-APG-VCF ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) STIPULATION AND ORDER TO EXTEND DISCOVERY PLAN AND SCHEDULING ORDER (First Request) Plaintiffs, SARAH ELIZABETH ALEXANDER (referred to herein as “Ms. Alexander”) and ROBERT ROY ALEXANDER (referred to herein as “Mr. Alexander”), by and through counsel, Bradley Mainor, Esq. and Ash Marie Blackburn, Esq. of the Mainor Wirth law firm, and Defendants, COSTCO WHOLESALE CORPORATION (hereinafter referred to as “Costco”), by Dockets.Justia.com Case 2:21-cv-00509-APG-VCF Document 13 Filed 12/15/21 Page 2 of 12 1 and through counsel, Edgar Carranza, Esq. of the law firm BACKUS, CARRANZA & BURDEN, and 2 Defendant, VALLEY CONTAX INC. (hereinafter referred to as “Valley Contax”), by and through 3 4 5 6 7 and order to extend the Discovery Plan and Scheduling Order pursuant to Local Rule II 26-4 as follows: I. GOOD CAUSE SUPPORTING THE EXTENSION. 8 The parties come to this Court seeking a first extension of the Discovery Plan and 9 Scheduling Order governing this product liability/personal injury case . The parties have begun to 10 diligently move this case forward but significant discovery remains to be completed which 3050 SOUTH DURANGO LAS VEGAS, NEVADA 89117 TELE: (702) 872-5555 FAX: (702) 872-5545 11 BACKUS, CARRANZA & BURDEN Alan Westbrook, Esq. of the Perry & Westbrook law firm, hereby submit the instant stipulation warrants the requested extension. 12 A. 13 As this Court is well aware, this lawsuit involves allegations that Plaintiff, SARAH 14 15 SUMMARY OF EFFORTS THUS FAR. ELIZABETH ALEXANDER (referred to herein as “Ms. Alexander”) suffered serious injuries to 16 her eye after wearing prescription contact lenses, which were distributed by Valley Contax and 17 purchased from Costco, as the result of an unspecified defect with the lenses. 18 19 20 21 22 23 On October 28, 2021, Plaintiffs filed their Complaint against Costco and Valley Contax with the Eighth Judicial District Court for Clark County, Nevada. On February 17, 2021, Costco filed its Answer denying Plaintiffs’ allegations and denying all liability for the injuries. On February 18, 2021, Valley Contax filed its Answer denying Plaintiffs’ allegations and denying all liability for the injuries claim. 24 On March 9, 2021, Plaintiffs filed their Request for Exemption from Arbitration in which 25 they outlined their claimed injuries and alleged damages. On March 29, 2021, Costco filed its 26 Notice of Removal and removed the matter to this Court based on diversity jurisdiction. On April 27 28 13, 2021, Costco filed its Statement Regarding Removal. .... 2 Case 2:21-cv-00509-APG-VCF Document 13 Filed 12/15/21 Page 3 of 12 1 The parties participated in the Fed. R. Civ. P. 26(f) conference on April 14, 2021, and filed 2 their proposed Joint Discovery Plan and Scheduling Order which was entered by this Court on 3 4 5 6 7 The parties also are working on a Stipulated Confidentiality Agreement and Protective Order providing protections for information and material deemed confidential by Costco to help facilitate the exchange of this material during discovery. This agreed upon protective order has 8 taken a few months to craft, review, negotiate and agree to but is expected to be submitted within 9 the next few weeks. 10 3050 SOUTH DURANGO LAS VEGAS, NEVADA 89117 TELE: (702) 872-5555 FAX: (702) 872-5545 11 BACKUS, CARRANZA & BURDEN April 28, 2021. 12 13 14 15 16 17 18 19 20 21 22 23 In the interim, the parties have been engaged in discovery. Initially, they exchanged their respective Fed. R. Civ. P. 26 disclosures. Next, the parties served a first set of written discovery requests to each other some of which have been responded to and others are still pending. At the same time, Plaintiffs’ medical records are being secured independently directly from the health care providers. As they are being produced, supplemental disclosures are being served to provide the records to all parties. Ms. Alexander and Mr. Alexander’s depositions are being scheduled to be taken by Defendants. So too, Plaintiffs intend to deposeCostco personnel, Karen Crawford (the Optical Manager) and Aaron Whitaker (Optician), Robert Ahern of Valley Contax and Edgar Retana of Dynatec Laboratories, Inc. The depositions of some of Plaintiff’s treating physicians will follow the completion of the fact related depositions. This will, no doubt, be followed by the deposition of the parties’ 24 respective experts. 25 B. 26 The shut down and subsequent limitations brought on by the COVID 19 pandemic initial 27 28 GOOD CAUSE. led to some delays in the parties’ respective ability to participate in the deposition process. In addition, counsel for Plaintiffs also was temporarily unavailable due to her maternity and the 3 Case 2:21-cv-00509-APG-VCF Document 13 Filed 12/15/21 Page 4 of 12 1 subsequent new addition to her family. Since those initial delays, the parties have diligently begun 2 deposing the parties and witnesses involved. 3 4 5 6 7 Moreover, this is a significant personal injury matter that will require significant effort by both parties. Plaintiff has already identified significant past medical expenses, unknown future medical expenses expected in excess of $100,000, loss of enjoyment of life in excess of $1,000,000, past pain and suffering in excess of $1,500,000 and future pain and suffering in 8 excess of $2,500,00, to name some of the damage components identified thus far. Significant 9 effort will be required to address each of the damage components, and the liability portion of this 10 case. BACKUS, CARRANZA & BURDEN 3050 SOUTH DURANGO LAS VEGAS, NEVADA 89117 TELE: (702) 872-5555 FAX: (702) 872-5545 11 12 13 14 15 16 17 18 19 20 21 22 Once the factual discovery has been completed, the parties can turn their attention to the depositions and discovery related to Plaintiff’s medical providers and expert witnesses. This is anticipated to take at least a couple of months, but necessary to prepare this case for trial or potential resolution. II. DISCOVERY COMPLETED TO DATE. In accordance with LR II 26-4(a), the Parties provide the following statement of discovery completed to date: A. Plaintiff’s Discovery. 1. Plaintiffs’ FRCP 26 initial disclosures served 04-20-21. 2. Plaintiffs’ First Supplement to FRCP 26 initial disclosures served on 07-2021. 23 24 3. served on 07-23-21. 25 26 4. 27 28 Plaintiff, Sarah Alexander’s Answers to Costco’s First Set of Interrogatories Plaintiff, Sarah Alexander’s Responses to Costco’s Request for Production served on 07-23-21. 5. Plaintiff, Robert Roy Alexander’s Answers to Costco’s First Set of 4 Case 2:21-cv-00509-APG-VCF Document 13 Filed 12/15/21 Page 5 of 12 Interrogatories served on 07-23-21. 1 2 6. 3 Production served on 07-23-21. 4 7. 5 8. 7 9. 9 10 Plaintiffs’ First Set of Requests for Production to Valley Contax served on 11-15-21. 11 3050 SOUTH DURANGO LAS VEGAS, NEVADA 89117 TELE: (702) 872-5555 FAX: (702) 872-5545 Plaintiffs’ Third Supplement to FRCP 26 initial disclosures served on 0902-21. 8 BACKUS, CARRANZA & BURDEN Plaintiffs’ Second Supplement to FRCP 26 initial disclosures served on 0825-21. 6 10. 12 Plaintiffs’ Fourth Supplement to FRCP 26 initial disclosures served on 1122-21. 13 11. 14 15 Plaintiff, Robert Roy Alexander’s Responses to Costco’s Request for B. Plaintiffs’ First Set of Interrogatories to Costco served on 11-23.21. Costco’s Discovery. 16 1. Costco’s FRCP 26 initial disclosures served 05-10-21. 17 2. Costco’s First Set of Interrogatories to Plaintiff, Robert Roy Alexander 18 19 served 05-12-21. 3. 20 21 22 Alexander served 05-12-21. 4. 5. 6. 27 28 Costco’s First Set of Requests for Production to Plaintiff, Sarah Alexander served 05-12-21. 25 26 Costco’s First Set of Interrogatories to Plaintiff, Sarah Alexander served 0512-21. 23 24 Costco’s First Set of Requests for Production to Plaintiff, Robert Roy Custodian of records depositions were set for various health care providers on 08-17-21. 7. Costco’s First Supplement to FRCP 26 disclosures served on 10-04-21. 5 Case 2:21-cv-00509-APG-VCF Document 13 Filed 12/15/21 Page 6 of 12 C. 1 2 3 4 5 6 7 Valley Contax’s Discovery. 1. III. DISCOVERY REMAINING TO BE COMPLETED. In accordance with LR II 26-4(b), the Parties provide the following statement of discovery remaining to be completed: A. Plaintiff’s remaining discovery. 1. 8 10 3050 SOUTH DURANGO LAS VEGAS, NEVADA 89117 TELE: (702) 872-5555 FAX: (702) 872-5545 11 BACKUS, CARRANZA & BURDEN Take the deposition of Karen Crawford, Costco’s Optical Manager at the relevant time. 9 12 13 14 15 16 2. Take the deposition of Aaron Whitaker, Costco’s Optician at the time. 3. Take the deposition of Costco’s Rule 30(b)(6) witness. 4. Take the deposition of Robert Ahern of Valley Contax. 5. Take the deposition of Valley Contax’s Rule 30(b)(6) witness. 6. Take the deposition of Edgar Retana of Dynatec Laboratories, Inc. 7. Plaintiff must designate initial experts and produce the required report and materials. 17 18 8. 19 Plaintiff must designate rebuttal experts and produce the required report and materials. 20 21 22 23 Valley Contax’s FRCP 26 initial disclosures served on June 9, 2021. B. 9. Deposition(s) of Costco’s experts must be taken. 10. Deposition(s) of Valley Contax’s experts must be taken. Costco’s remaining discovery: 24 1. Costco must respond to Plaintiffs’ First Set of Interrogatories. 25 2. Depositions of Plaintiff, Sarah Alexander. 26 3. Deposition of Plaintiff, Robert Roy Alexander. 4. Depositions of Plaintiff’s treating providers must be taken. 5. Costco must designate initial experts and produce the required report and 27 28 6 Case 2:21-cv-00509-APG-VCF Document 13 Filed 12/15/21 Page 7 of 12 materials. 1 2 6. 3 materials. 4 7. 5 C. 6 Deposition(s) of Plaintiffs’ experts must be taken. Valley Contax’s remaining discovery: 1. 7 Valley Contax must respond to Plaintiffs’ First Set of Requests for Production. 8 9 2. Depositions of Plaintiff, Sarah Alexander. 10 3. Deposition of Plaintiff, Robert Roy Alexander. 4. Depositions of Plaintiff’s treating providers must be taken. 5. Valley Contax must designate initial experts and produce the required 3050 SOUTH DURANGO LAS VEGAS, NEVADA 89117 TELE: (702) 872-5555 FAX: (702) 872-5545 11 BACKUS, CARRANZA & BURDEN Costco must designate rebuttal experts and produce the required report and 12 13 report and materials. 14 6. 15 report and materials. 16 7. 17 18 19 20 21 22 23 Valley Contax must designate rebuttal experts and produce the required IV. Deposition(s) of Plaintiffs’ experts must be taken. WHY REMAINING DISCOVERY HAS NOT BEEN COMPLETED. As referenced above, initially, the limitations related to the COVID 19 pandemic led to some delays and conflicts with counsels’ availability/schedule. Nonetheless, good faith efforts were made by both parties to meet the obligations required of all parties. The parties have also devoted considerable effort to crafting, negotiating and ultimately 24 agreeing to the Stipulated Confidentiality Agreement and Protective Order, which will be 25 submitted to this Court for its endorsement. By agreeing to the same, the parties hope to facilitate 26 the exchange of confidential and/or proprietary material during discovery which could avoid 27 28 delays as this case moves forward. Once the parties embarked on discovery, they have been able to move this matter forward 7 Case 2:21-cv-00509-APG-VCF Document 13 Filed 12/15/21 Page 8 of 12 1 with the appropriate diligence. As detailed above, significant discovery has been completed 2 including the exchange of initial disclosures, completion of multiple waves of written discovery 3 and securing independent copies of Plaintiffs’ medical records. 4 5 6 7 responses to written discovery requests, completion of Plaintiffs’ depositions, completion of Costco personnel depositions and completion of Valley Contax’s personnel depositions. 8 Plaintiffs’ medical providers must also be deposed as will the parties’ respective expert witnesses. 9 The experts also need to have available the deposition testimony of some of the providers in order 10 to render a comprehensive opinion of their respective areas of expertise. 3050 SOUTH DURANGO LAS VEGAS, NEVADA 89117 TELE: (702) 872-5555 FAX: (702) 872-5545 11 BACKUS, CARRANZA & BURDEN Despite the diligent efforts, significant discovery remains to be completed including V. 12 13 14 15 PROPOSED SCHEDULE FOR COMPLETING DISCOVERY. This request for an extension of time is not sought for any improper purpose or other purpose of delay. The parties respectfully submit that this constitutes good cause for the extension. The following is a list of the current discovery deadlines and the parties’ proposed 16 extended deadlines. 17 Scheduled Event Current Deadline Proposed Deadline 18 Discovery Cut Off April 28, 2022 August 26, 2022 Amend Pleadings/Add Parties January 28, 2022 May 28, 2022 Initial Expert Disclosures January 28, 2022 May 28, 2022 Rebuttal Expert Disclosures March 30, 2022 July 29, 2022 23 Dispositive Motions May 27, 2022 September 24, 2022 24 Joint Pre-Trial Order June 27, 2022 October 25, 2022 19 20 21 22 25 26 27 28 If dispositive motions are filed, the deadline for filing the joint pretrial order will be suspended until 30 days after decision on the dispositive motions or further court order. .... .... .... 8 Case 2:21-cv-00509-APG-VCF Document 13 Filed 12/15/21 Page 9 of 12 1 This is the first request for extension of time in this matter and no trial date will be 2 impacted by the extension as no such trial date has been set. The parties submit that the reasons 3 set forth above constitute good cause for the requested extension. 4 5 6 Dated this 14th day of December, 2021. Dated this 14th day of December, 2021. BACKUS, CARRANZA & BURDEN 7 Mainor Wirth, LLP 8 9 By: 10 BACKUS, CARRANZA & BURDEN 3050 SOUTH DURANGO LAS VEGAS, NEVADA 89117 TELE: (702) 872-5555 FAX: (702) 872-5545 11 12 13 By: /s/ Edgar Carranza_____________ Edgar Carranza, Esq. Nevada Bar No. 5902 3050 South Durango Drive Las Vegas, Nevada 89117 Attorney for Defendants COSTCO WHOLESALE CORPORATION 14 15 /s/ Ash Marie Blackburn_________ Bradley Mainor, Esq. Nevada Bar No. Ash Marie Blackburn, Esq. Nevada Bar No. 6018 S. Fort Apache Road, Ste, 150 Las Vegas, Nevada 89148-5652 Attorney for Plaintiffs SARAH ELIZABETH ALEXANDER and ROBERT ROY ALEXANDER Dated this 14th day of December, 2021 16 Perry & Westbrook 17 18 19 20 21 22 By: /s/ Alan Westbrook______________ Alan Westbrook, Esq. Nevada Bar No. 11500 S. Eastern, Suite 140, Henderson, Nevada 89052 Attorneys for Defendant VALLEY CONTAX INC. 23 24 25 26 27 IT IS SO ORDERED… DATED this 15th day of December, 2021. ____________________________________ UNITED STATES MAGISTRATE JUDGE 28 9 Case 2:21-cv-00509-APG-VCF Document 13 Filed 12/15/21 Page 10 of 12 Patti Sherretts From: Sent: To: Cc: Subject: Attachments: Ash Blackburn <Ash@mwinjury.com> Sunday, December 12, 2021 9:47 PM Edgar Carranza Alan W. Westbrook; Jennifer Meacham; Lindsay Hayes; vgonzalez@perrywestbrook.com; Patti Sherretts Re: Costco adv. Alexander... Stip & Order 2 Extend Scheduling Order (1st req) 12-03-21.doc No changes. You can sign for me. Thank you. Sent from my iPhone On Dec 3, 2021, at 2:00 PM, Edgar Carranza <edgarcarranza@backuslaw.com> wrote: All: Attached please find our draft of the proposed stipulation to continue the scheduling order. I have provided the document in Word format to allow for your additions/changes. I only ask that any such changes be made in redline so that we can track. Please review and ensure that the information is accurate for each of your respective clients. Have a good weekend. Thank you. Edgar Carranza, Esq. Backus, Carranza & Burden 3050 South Durango Drive Las Vegas, Nevada 89117 (702) 872 5555 office (702) 872 5545 fax 1 Case 2:21-cv-00509-APG-VCF Document 13 Filed 12/15/21 Page 11 of 12 Patti Sherretts From: Sent: To: Cc: Jennifer Meacham <jmeacham@perrywestbrook.com> Tuesday, December 14, 2021 11:44 AM Ash Blackburn; Edgar Carranza Alan W. Westbrook; Lindsay Hayes; vgonzalez@perrywestbrook.com; Patti Sherretts; Jennifer Meacham Re: Costco adv. Alexander... Subject: Good morning, Mr. Westbrook has now had an opportunity to review the Stipulation and Order to Extend Discovery Plan and Scheduling Order (First Request). He requests one change at page 6, line 2. Can you please revise to include the date of Valley Contax's FRCP 26 initial disclosures which were served on June 9, 2021? Once that change is made, he gives his authorization to use his electronic signature on same. Thank you. Jennifer Meacham Perry & Westbrook, A Professional Corporation 11500 S. Eastern Avenue, Ste. 140 Henderson, NV 89052 Phone: (702) 870 2400 Fax: (702) 870 8220 Email: jmeacham@perrywestbrook.com THIS MESSAGE IS INTENDED FOR THE USE OF THE INDIVIDUAL OR ENTITY TO WHICH IT IS ADDRESSED, AND MAY CONTAIN INFORMATION THAT IS PRIVILEGED, CONFIDENTIAL AND EXEMPT FROM DISCLOSURE UNDER APPLICABLE LAW. IF THE READER OF THIS MESSAGE IS NOT THE INTENDED RECIPIENT, OR THE EMPLOYEE OR AGENT RESPONSIBLE FOR DELIVERING THE MESSAGE TO THE INTENDED RECIPIENT, YOU ARE HEREBY NOTIFIED THAT ANY DISSEMINATION, DISTRIBUTION OR COPYING OF THIS COMMUNICATION IS STRICTLY PROHIBITED. IF YOU HAVE RECEIVED THIS COMMUNICATION IN ERROR, PLEASE NOTIFY US IMMEDIATELY BY TELEPHONE. THANK YOU. On 12/12/2021 9:47 PM, Ash Blackburn wrote: No changes. You can sign for me. Thank you. Sent from my iPhone On Dec 3, 2021, at 2:00 PM, Edgar Carranza <edgarcarranza@backuslaw.com> wrote: All: Attached please find our draft of the proposed stipulation to continue the scheduling order. I have provided the document in Word format to allow for your additions/changes. I only ask that any such changes be made in redline so that we can track. Please review and ensure that the information is accurate for each of your respective clients. Have a good weekend. Thank you. 1 Case 2:21-cv-00509-APG-VCF Document 13 Filed 12/15/21 Page 12 of 12 Edgar Carranza, Esq. Backus, Carranza & Burden 3050 South Durango Drive Las Vegas, Nevada 89117 (702) 872 5555 office (702) 872 5545 fax 2

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