Thomas et al v. Clark County et al, No. 2:2022cv00899 - Document 52 (D. Nev. 2023)
Court Description: ORDER Granting 51 Stipulation to Extend Discovery Deadlines. No further discovery extensions will be granted. Discovery due by 1/8/2024. Motions due by 2/7/2024. Proposed Joint Pretrial Order due by 3/8/2024. Signed by Magistrate Judge Nancy J. Koppe on 7/28/2023. (Copies have been distributed pursuant to the NEF - RGDG)
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Thomas et al v. Clark County et al Doc. 52 1 S. BRENT VOGEL Nevada Bar No. 6858 2 Brent.Vogel@lewisbrisbois.com ETHAN M. FEATHERSTONE 3 Nevada Bar No. 11566 Ethan.Featherstone@lewisbrisbois.com 4 LEWIS BRISBOIS BISGAARD & SMITH LLP 6385 S. Rainbow Boulevard, Suite 600 5 Las Vegas, Nevada 89118 Telephone: 702.893.3383 6 Facsimile: 702.893.3789 Attorneys for Defendants Wellpath, LLC; Correct 7 Care Solutions, LLC; J. Marcos, RN; Earl D. Salviejo, NP; Tanja Wasielewski, RN; H. Taddeo, 8 RN; Ace T. RN; Larry Williamson, RN; H. Hannash, RN; David Oliphant, PA, LPN Alexia; 9 Becky S. Christensen, RN; Ray Martin Montenegro, NP, and Kate Purcell, RN 10 11 UNITED STATES DISTRICT COURT 12 DISTRICT OF NEVADA 13 DAICHENA THOMAS, individually and as the personal representative of Estate of Palmer 14 Pearce Joseph Wright; DANA THOMAS, individually; DEVONTAY THOMAS, 15 individually; DELON ARMSTRONG, individually; JW, individually; GERMAINE 16 CERMENA, individually, STIPULATION TO EXTEND DISCOVERY DEADLINES (Third Request) Plaintiffs, 17 18 Case No. 2:22-CV-0899-GMN-NJK vs. 19 CLARK COUNTY; LAS VEGAS METROPOLITAN POLICE DEPARTMENT; 20 CLARK COUNTY DETENTION CENTER; WELLPATH, LLC; CORRECT CARE 21 SOLUTIONS, LLC; J. MARCOS, RN; EARL D. SALVIEJO, NP; TANJA WASIELEWSKI, 22 RN; H. TADDEO, RN; ACE T. RN; LARRY WILLIAMS, RN; H. HANNASH, RN; 23 DAVID OLIPHANT, PA; LPN ALEXIA; BECKY S. CHRISTENSEN, RN; RAY 24 MARTIN MONTENEGRO, NP; KATE PURCELL, RN; DOES I through C, inclusive, 25 and ROE CORPORATIONS I though II, inclusive, 26 Defendants. 27 LEWIS 28 BRISBOIS BISGAARD & SMITH LLP ATTORNEYS AT LAW 127315620.1 Dockets.Justia.com 1 IT IS HEREBY STIPULATED AND AGREED between the parties, Las Vegas 2 Metropolitan Police Department (“LVMPD”); Wellpath, LLC; Correct Care Solutions, LLC; J. 3 Marcos, RN; Earl D. Salviejo, NP; Tanja Wasielewski, RN; H. Taddeo, RN; Ace T. RN; Larry 4 Williamson, RN; H. Hannash, RN; David Oliphant, PA, LPN Alexia; Becky S. Christensen, RN; 5 Ray Martin Montenegro, NP, and Kate Purcell, RN’s (“Wellpath Defendants”); and Plaintiffs, 6 Daichena Thomas, Dana Thomas, Devontay Thomas, Delon Armstrong, JW, and Germaine 7 Carmena, (“Plaintiffs”), by and through their respective counsel that the discovery cut-off date of 8 October 10, 2023, be continued for a period of 90 days up to and including January 8, 2024, for 9 the purpose of allowing the parties to complete written discovery, obtain records from third-parties, 10 disclose expert and rebuttal expert reports, and take depositions. 11 The parties’ previous attempt (ECF No. 49) at extending unexpired deadlines in the 12 scheduling order was denied without prejudice based upon the following: 13 • The appointment of J.W.’s guardian ad litem had not been renewed despite a misplaced representation that the appointment was pending; 14 15 • There was no explanation why “the volume of discovery, the need to review audio recordings, and one party’s incarceration” warrant a three-month extension. 16 17 This stipulation addresses each of these reasons below. 18 I. DISCOVERY COMPLETED TO DATE 19 All parties have provided their initial Rule 26 Disclosures and produced supplemental 20 disclosures. LVMPD served written discovery (interrogatories, requests for production of 21 documents and requests for admissions) on Plaintiffs which responses and supplemental responses 22 were made. LVMPD served numerous third-party subpoenas. The parties have retained expert 23 witnesses. Wellpath Defendants have served the following written discovery on the Plaintiffs: 24 1. 25 26 2. 27 LEWIS DEFENDANT KATE PURCELL, RN FIRST SET OF INTERROGATORIES TO PLAINTIFF THE ESTATE OF PALMER WRIGHT DEFENDANT ALEXIA MAHONEY, LPN (LISTED INCOMPLETELY AS LPN ALEXIA) FIRST SET OF INTERROGATORIES TO PLAINTIFF THE ESTATE OF PALMER WRIGHT 28 BRISBOIS BISGAARD & SMITH LLP ATTORNEYS AT LAW 127315620.1 2 1 3. 2 3 4 5 6 4. 5. 6. 7 8 7. 9 8. 10 9. 11 12 10. 13 14 15 16 17 18 12. 13. 14. 19 15. 20 16. 21 17. 22 23 24 25 LEWIS 11. 18. 19. 20. 26 21. 27 22. 28 DEFENDANT BECKY S. CHRISTENSEN, RN FIRST SET OF INTERROGATORIES TO PLAINTIFF THE ESTATE OF PALMER WRIGHT DEFENDANT DAVID OLIPHANT, PA FIRST SET OF INTERROGATORIES TO PLAINTIFF THE ESTATE OF PALMER WRIGHT DEFENDANT EARL D. SALVIEJO, NP FIRST SET OF INTERROGATORIES TO PLAINTIFF THE ESTATE OF PALMER WRIGHT DEFENDANT HEATHER HANASH, RN (LISTED INCORRECTLY AS H. HANNASH, RN) FIRST SET OF INTERROGATORIES TO PLAINTIFF THE ESTATE OF PALMER WRIGHT DEFENDANT HORACE TADEO FIRST SET OF INTERROGATORIES TO PLAINTIFF THE ESTATE OF PALMER WRIGHT DEFENDANT JAY MARCOS FIRST SET OF INTERROGATORIES TO PLAINTIFF THE ESTATE OF PALMER WRIGHT DEFENDANT LARRY WILLIAMSON FIRST SET OF INTERROGATORIES TO PLAINTIFF THE ESTATE OF PALMER WRIGHT DEFENDANT RAY MONTENEGRO FIRST SET OF INTERROGATORIES TO PLAINTIFF THE ESTATE OF PALMER WRIGHT DEFENDANT WELLPATH, LLC FIRST SET OF INTERROGATORIES TO PLAINTIFF DAICHENA THOMAS AS REPRESENTATIVE OF THE ESTATE OF PALMER PEARCE JOSEPH WRIGHT DEFENDANT WELLPATH, LLC FIRST SET OF INTERROGATORIES TO PLAINTIFF J.W. DEFENDANT WELLPATH, LLC FIRST SET OF INTERROGATORIES TO PLAINTIFF DANA THOMAS DEFENDANT WELLPATH, LLC FIRST SET OF INTERROGATORIES TO PLAINTIFF DELON ARMSTRONG DEFENDANT WELLPATH, LLC FIRST SET OF INTERROGATORIES TO PLAINTIFF DEVONTAY THOMAS DEFENDANT WELLPATH, LLC FIRST SET OF INTERROGATORIES TO PLAINTIFF GERMAINE CARMENA DEFENDANT WELLPATH, LLC FIRST SET OF INTERROGATORIES TO PLAINTIFF DAICHENA THOMAS, INDIVIDUALLY DEFENDANT WELLPATH, LLC FIRST SET OF REQUESTS FOR ADMISSION TO PLAINTIFF DAICHENA THOMAS, INDIVIDUALLY DEFENDANT WELLPATH, LLC FIRST SET OF REQUESTS FOR ADMISSION TO PLAINTIFF DANA THOMAS DEFENDANT WELLPATH, LLC FIRST SET OF REQUESTS FOR ADMISSION TO PLAINTIFF DELON ARMSTRONG DEFENDANT WELLPATH, LLC FIRST SET OF REQUESTS FOR ADMISSION TO PLAINTIFF DEVONTAY THOMAS DEFENDANT WELLPATH, LLC FIRST SET OF REQUESTS FOR ADMISSION TO DAICHENA THOMAS AS REPRESENTATIVE OF THE ESTATE OF PALMER PEARCE JOSEPH WRIGHT BRISBOIS BISGAARD & SMITH LLP ATTORNEYS AT LAW 127315620.1 3 1 23. 2 24. 3 25. 4 5 26. 6 27. 7 28. 8 9 29. 10 11 12 13 30. 31. 14 DEFENDANT WELLPATH, LLC FIRST SET OF REQUESTS FOR ADMISSION TO PLAINTIFF GERMAINE CARMENA DEFENDANT WELLPATH, LLC FIRST SET OF REQUESTS FOR ADMISSION TO PLAINTIFF J.W. DEFENDANT WELLPATH, LLC FIRST SET OF REQUESTS FOR PRODUCTION OF DOCUMENTS TO PLAINTIFF DAICHENA THOMAS, INDIVIDUALLY DEFENDANT WELLPATH, LLC FIRST SET OF REQUESTS FOR PRODUCTION OF DOCUMENTS TO PLAINTIFF DANA THOMAS DEFENDANT WELLPATH, LLC FIRST SET OF REQUESTS FOR ADMISSION TO PLAINTIFF DELON ARMSTRONG DEFENDANT WELLPATH, LLC FIRST SET OF REQUESTS FOR PRODUCTION OF DOCUMENTS TO PLAINTIFF DEVONTAY THOMAS DEFENDANT WELLPATH, LLC FIRST SET OF REQUESTS FOR PRODUCTION OF DOCUMENTS TO PLAINTIFF DAICHENA THOMAS AS REPRESENTATIVE OF THE ESTATE OF PALMER PEARCE JOSEPH WRIGHT DEFENDANT WELLPATH, LLC FIRST SET OF REQUESTS FOR PRODUCTION OF DOCUMENTS TO PLAINTIFF GERMAINE CARMENA DEFENDANT WELLPATH, LLC FIRST SET OF REQUESTS FOR PRODUCTION OF DOCUMENTS TO PLAINTIFF J.W. 15 The plaintiffs have served responses to the majority of the above written discovery and the parties 16 are working on the remaining responses. 17 Defendants have deposed four of the six Plaintiffs between June 6 and June 27, 2023, and 18 two have been scheduled and then rescheduled. 19 On June 28, 2023, the Las Vegas Metropolitan Police Department disclosed 20 recordings 20 with a cumulative length of approximately 3.5 hours of telephone calls the decedent made while he 21 was incarcerated in the Clark County Detention Center. 22 The parties also deposed witness Zina Essix on June 28, 2023 and again on July 19, 2023. 23 Ms. Essix had several recorded phone conversations with the decedent while he was detained at 24 CCDC just prior to his death. A third setting for the completion of Ms. Essix’s deposition has been 25 noticed for August 15, 2023. 26 Wellpath Defendants have noticed the deposition of Felicia Trimble, another fact witness 27 who conversed with the decedent while he was detained at CCDC just prior to his death, for August LEWIS 28 BRISBOIS BISGAARD & SMITH LLP ATTORNEYS AT LAW 127315620.1 4 1 21, 2023. Conflicts have since been discovered with this date for at least two of the parties, and the 2 parties are working together to reschedule this deposition for a later date. On July 7, 2023, Wellpath, LLC served third-party subpoenas to obtain work and personnel 3 4 records of Palmer Pearce Wright (“Wright”). Responses are due on July 28, 2023. Both companies 5 have responded formally or informally to date that they have no records of Wright. One of the 6 companies – Republic Services – was identified in written discovery responses by Plaintiff Dana 7 Wright and confirmed at her deposition as a prior employer. Other Plaintiffs who were family 8 members recalled in their depositions held in June 2023 Wright worked for a trash collection type 9 company but did not recall specifics. Further discovery will be required to discover if there was an 10 trash collection service who was not Republic Services who may have been Wright’s employer. 11 II. DISCOVERY YET TO BE COMPLETED 12 Critically, the parties will need to disclose initial expert and rebuttal expert witnesses. In 13 providing their expert opinions, the experts will need information gathered in discovery that has not 14 yet been completed. This discovery includes: 15 • Receipt of documents in response to subpoenas to obtain work and personnel records Wright. 16 17 • Additional subpoena(s) to other trash collection servicesfor work and personnel records of Wright. 18 19 • A transcript of of Zina Essix’s complete deposition. 20 • A transcript of the deposition of Felicia Trimble. 21 • A transcript of the deposition of minor Plaintiff J.W. 22 • A transcript of the deposition of Plaintiff Delon Armstrong, which is pending and has been delayed due to his incarceration. 23 Once experts have disclosed their reports, the parties will need to disclose rebuttal reports 24 25 and depose experts. The parties will likely also need to propound and respond to additional written 26 discovery based upon the testimonies provided by the witnesses and experts and based upon 27 information obtained through subpoenas to decedent’s employer(s) and medical providers. LEWIS 28 /// BRISBOIS BISGAARD & SMITH LLP ATTORNEYS AT LAW 127315620.1 5 1 III. REASONS WHY REMAINING DISCOVERY HAS NOT BEEN COMPLETED 2 The parties have been diligent in proceeding with discovery in this matter. The claims in this 3 matter involve the death of a former Clark County Detention Center (“CCDC”) detainee, Wright. 4 Many of the issues pertain to the medical care of Wright prior to his arrest, during his detention at 5 CCDC, and prior to his death. The information surrounding these issues is extensive. Moreover, 6 there are six Plaintiffs and numerous Defendants. Wellpath and 11 individual defendants served 7 written discovery on each of the six individual Plaintiffs, which totaled over 30 written discovery 8 documents. The parties agreed to extensions and most of these have now been responded to. Despite 9 diligently conducting extensive discovery, the parties are quickly approaching an expert witness 10 deadline of August 11, 2023. ECF No. 21. This deadline will not allow the parties’ experts enough 11 time to provide comprehensive opinions because not all of the relevant discovery will be completed. In their previous stipulation which the Court denied, the parties failed to clearly outline how 12 13 “the volume of discovery, the need to review audio recordings, and one party’s incarceration” 14 directly affects the ability of experts to form an opinion before the deadline of August 11, 2023. 15 Most critically, the audio recordings between decedent and Ms. Essix and Ms. Trimble need to be 16 fully explored before the experts can form an opinion. The 3.5 hours of recorded conversations 17 between Wright and two witnesses in the month leading up to his death provides critical information 18 about Wright’s health and treatment at CCDC—the central issue in this case. In the conversations, 19 Wright discusses the conditions in jail and his health. In addition, Wright also discusses his 20 relationship with the plaintiffs, his communication with them, and other relevant factors to the 21 litigation. These conversations, however, are difficult to understand given the recording quality of 22 the calls, language and idiomatic expressions of the witnesses and Wright, and missing context. But 23 once the witnesses have been deposed concerning the calls (and other facts) the parties’ experts will 24 have critical information to form their opinions. 1 25 26 LEWIS 1 Due to LVMPD Defendants’ inadvertence, the parties did not have the audio recordings until shortly before the first deposition of Ms. Essix. Fortunately, the parties worked together 27 collegially to resolve this issue. As such, the parties agreed to continue the deposition—a 28 continuance which necessarily contributed to the delay for expert reports. BRISBOIS BISGAARD & SMITH LLP ATTORNEYS AT LAW 127315620.1 6 The experts will also need to review the other discovery that is in the process of being 1 2 collected via subpoenas, written discovery, and the deposition of two more parties—one of whom 3 is incarcerated. Scheduling the deposition of the incarcerated party has been challenging given the 4 scheduling of other parties’ depositions and because counsel must coordinate with the prison in 5 arranging a video conferencing deposition. The parties were also unable to obtain information on 6 Wright’s past employers until the conclusion of Plaintiffs’ June 2023 depositions, and even that 7 information appears incomplete. Once defendants receive information subpoenaed from Wright’s 8 previous employers, they may need to retain a damages expert. Thus, three months is needed so there is time for: (1) the parties to collect the remaining 9 10 relevant information for the experts, (2) the defendants to determine whether a damages expert(s) 11 will need to be retained based on the subpoenaed (but currently undisclosed) work history, (3) 12 experts to review and prepare their reports, (4) experts to prepare rebuttal reports if necessary, (5) 13 the parties to depose experts, (6) and the parties to prepare additional written discovery as needed, 14 including potential discovery into issues raised by experts and other witnesses. With a three month 15 extension, the parties expect that the experts and/or rebuttal experts will have everything they need 16 to form their opinions based on all the relevant evidence in the case and to be able to explain their 17 opinions in depositions. Finally, Plaintiffs are in the process of moving to appoint a guardian ad litem for J.W. The 18 19 parties should have indicated in their previous stipulation that Plaintiffs were in the process of 20 moving for the appointment rather than the appointment was “pending.” See ECF No. 50. It is clear 21 from the record that a motion to appointment of a guardian ad litem is not “pending.” 22 In sum, despite their diligence, the parties cannot complete the discovery necessary in this 23 24 case within the current timelines and the parties all agree to the extension of time detailed below. 25 IV. PROPOSED EXTENDED DEADLINES 26 The parties respectfully request this Court enter an order as follows: 27 /// LEWIS 28 /// BRISBOIS BISGAARD & SMITH LLP ATTORNEYS AT LAW 127315620.1 7 1 (A) Discovery Deadline. 2 The current discovery cut-off date of October 10, 2023, should be extended for a period of 3 90 days, up to and including January 8, 2024. 4 (B) Experts and Rebuttal Experts. 5 The parties shall disclose expert reports on or before November 9, 2023, which is 60 days 6 prior to the close of discovery. 7 Any rebuttal disclosures will be made by the parties on or before December 11, 2023, which 8 is 30 days prior to the close of discovery. 9 10 (C) Dispositive Motions. All pretrial motions, including but not limited to, discovery motions, motions to dismiss, 11 motions for summary judgment, and all other dispositive motions shall be filed and served no later 12 than 30 days after the close of discovery, or by February 7, 2024. 13 (D) Motions in Limine/Daubert Motions. 14 Under LR 16-3(b), any motions in limine, including Daubert motions, shall be filed and 15 served 30 days prior to the commencement of Trial. Oppositions shall be filed and served and the 16 motion submitted for decision 14 days thereafter. Reply briefs will be allowed only with leave of 17 the Court. 18 (E) Pretrial Order. 19 Pursuant to LR 26(1)(e)(5), the Joint Pretrial Order shall be filed with this Court no later 20 than 30 days after the date set for filing dispositive motions, or by March 8, 2024, unless dispositive 21 motions are filed, in which case the date for filing the Joint Pretrial Order shall be suspended until 22 30 days after the decision on the dispositive motions or further order of this Court. The disclosures 23 required by Fed. R. Civ. P. 26(a)(3) and any objections shall be included in the final pretrial order. 24 (F) Extensions or Modification of the Discovery Plan and Scheduling Order. 25 In accordance with LR 26-3, applications to extend any date set by the discovery plan, 26 scheduling order, or other order must, in addition to satisfying the requirements of LR 6-1, be 27 supported by a showing of good cause for the extension. All motions or stipulations to extend a LEWIS 28 deadline set forth in a discovery plan shall be received by the Court not later than 21 days before BRISBOIS BISGAARD & SMITH LLP ATTORNEYS AT LAW 127315620.1 8 1 the expiration of the subject deadline. A request made after the expiration of the subject deadline 2 shall not be granted unless the movant demonstrates that the failure to set was the result of excusable 3 neglect. Any motion or stipulation to extend a deadline or to reopen discovery shall include: 4 (a) A statement specifying the discovery completed; 5 (b) A specific description of the discovery that remains to be completed; 6 (c) The reasons why the deadline was not satisfied or the remaining discovery was 7 not completed within the time limits set by the discovery plan; and 8 (d) A proposed scheduled for completing all discovery. 9 This request for an extension is made in good faith and joined by all the parties in this case. 10 The Request is timely pursuant to LR 26-3. Trial is not yet set in this matter and dispositive motions 11 have not yet been filed. Accordingly, this extension will not delay this case. 12 /// 13 /// 14 /// 15 /// 16 /// 17 /// 18 /// 19 /// 20 /// 21 /// 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// LEWIS 28 /// BRISBOIS BISGAARD & SMITH LLP ATTORNEYS AT LAW 127315620.1 9 1 Moreover, since this request is a joint request, neither party will be prejudiced. The extension 2 will allow the parties the necessary time to finish discovery. 3 DATED this 27th day of July, 2023 4 STOVALL & ASSOCIATES 5 /s/ Ross H. Moynihan Leslie Mark Stovall Nevada Bar No. 2566 Ross H. Moynihan Nevada Bar No. 11848 2301 Palomino Lane Las Vegas, NV 89107 6 7 8 9 10 LEWIS BRISBOIS BISGAARD & SMITH LLP /s/ Ethan M. Featherstone S. Brent Vogel Nevada Bar No. 6858 Ethan M. Featherstone Nevada Bar No. 11566 6385 S. Rainbow Blvd., Ste. 600 Las Vegas, NV 89118 Attorneys for Plaintiffs Attorneys for Defendants WellPath, LLC; Correct Care Solutions, LLC; J. Marcos, RN; Earl D. Salviejo, NP; Tanya Wasielewski, RN; H. Taddeo, RN; Ace T. RN; Larry Williamson, RN; H. Hannash, RN; David Oliphant, PA; LPN Alexia; Becky S. Christensen, RN; Ray Martin Montenegro, NP; and Kate Purcell, RN 11 12 13 14 15 16 17 18 19 20 21 KAEMPFER CROWELL /s/ Ryan W. Daniels Lyssa S. Anderson Nevada Bar No. 5781 Ryan W. Daniels Nevada Bar No. 13094 1980 Festival Plaza Drive, Suite 650 Las Vegas, NV 89135 Attorneys for Defendant Las Vegas Metropolitan Police Department 22 23 NO FURTHER DISCOVERY 24 EXTENSIONS WILL BE GRANTED. 25 26 IT IS SO ORDERED. Dated: July 28, 2023 __________________________________________ United States Magistrate Judge 27 LEWIS ORDER 28 BRISBOIS BISGAARD & SMITH LLP ATTORNEYS AT LAW 127315620.1 10
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