Case 2:18-cv-01654-GMN-BNW Document 98 Filed 02/17/20 Page 1 of 11 1 2 3 4 5 6 7 8 9 Corey M. Eschweiler, Esq. (Bar No. 6635) GLEN LERNER INJURY ATTORNEYS 4795 South Durango Drive Las Vegas, Nevada 89147 Telephone: (702) 877-1500 Facsimile: (702) 933-7043 ceschweiler@glenlerner.com Colin P. King (UT Bar No. 1815) (Pro Hac Vice) cking@dkowlaw.com DEWSNUP KING OLSEN WOREL HAVAS MORTENSEN 36 South State Street, Suite 2400 Salt Lake City, UT 84111 Telephone: (801) 533-0400 Attorneys for Plaintiff 10 UNITED STATES DISTRICT COURT 11 DISTRICT OF NEVADA 12 RYAN Q. CLARIDGE, CASE NO.: 2:18-cv-01654-GMN-BNW 13 Plaintiff, 14 vs. 15 I-FLOW CORPORATION, a Delaware corporation; I-FLOW, LLC, a Delaware limited liability company; DJO LLC (f.k.a. DJ ORTHOPEDICS, LLC), a Delaware limited liability company; DJO, INCORPORATED, aka DJO, INC., a Delaware corporation; STRYKER CORPORATION, a Michigan corporation; and STRYKER SALES CORPORATION, a Michigan corporation, 16 17 18 19 PLAINTIFF’S RESPONSE TO DEFENDANTS’ MOTION TO COMPEL THE NUEROLOGICAL AND PSYCHOLOGICAL EXAMINATIONS FOR PLAINTIFF RYAN Q. CLARIDGE PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 35 [DKT. NO. 92] Hearing Date: 2/25/2020 Defendants. 20 Hearing Time: 10:00 a.m. 21 Plaintiff RYAN Q. CLARIDGE (“Claridge”), through counsel, opposes Defendants’ Motion to 22 Compel The Neurological and Psychological Examinations for Plaintiff Ryan Q. Claridge (Dkt. No. 92), 23 on the following grounds: 24 25 26 27 -1- Case 2:18-cv-01654-GMN-BNW Document 98 Filed 02/17/20 Page 2 of 11 1 I. INTRODUCTION 2 In this products liability action, Defendants inexplicably waited until one month before the expert 3 witness deadline to seek an order compelling Claridge to submit to two, additional Rule 35 examinations. 4 Defendants’ justifications for the dilatory motion are wholly lacking. 5 Plaintiff’s injuries long before recently deposing two treating health care providers. All the opinions 6 identified in the motion were contained in the doctors’ medical records, including the doctors’ diagnoses 7 of the alleged “mystery nerve condition” referenced throughout Defendants’ motion. Defendants have 8 had the records since the start of discovery over a year ago. Defendants, in fact, listed the same doctors 9 in Defendants’ initial Rule 26 disclosures, filed one year ago, February 27, 2019. Defendants have had a 10 whole year to complete the depositions, and to review the medical records clearly setting out Plaintiff’s 11 injuries. It is simply too late to be seeking new “IME” examinations now. Defendants knew all about 12 Also, Defendants disregard the “in controversy” requirement altogether. The nerve complications 13 were a direct result of Claridge’s surgery with Dr. Koe who was trying to provide some relief for the 14 twelve years of constant pain at the hands of Defendants’ pain pumps. These complications were 15 diagnosed shortly after the February, 2018, surgery. The recent deposition testimony Defendants claim 16 justifies the examination was clearly set out in the medical records of treating doctors Koe, Metcalf, and 17 Balbierz which Defendants have possessed for almost a year. These were not voluminous documents. In 18 fact, Claridge treated with Metcalf once, Balbierz once, and Koe a handful of times, most of which 19 related to his actual shoulder surgery. 20 complication are among many post-surgical complications not constituting any “controversy” justifying 21 eleventh hour so-called “IME” examination by new doctors. In other words, Plaintiff’s post-surgical pain and nerve 22 The same is true of a psychological examination. This, because “courts generally agree that for a 23 plaintiff’s mental status to be ‘in controversy’ requires more than ‘garden variety’ emotional distress or 24 mental anguish allegations that are merely attendant to the suffering of or recovery from a physical 25 injury.” Here, Claridge makes his mental distress allegation in the context of his physical injury, i.e., the 26 total destruction of the cartilage in his left shoulder caused by Defendants’ pain pumps. He has not made 27 an infliction of emotional distress claim nor any specific claims of emotional injury, and Defendants’ -2- Case 2:18-cv-01654-GMN-BNW Document 98 Filed 02/17/20 Page 3 of 11 1 focus on two words in one paragraph of Claridge’s complaint is not determinative. Claridge has simply 2 claimed damages for loss of enjoyment of life, including mental distress, that are recoverable in Nevada 3 as part of his general pain and suffering damages. Defendants’ motion should, therefore, be denied. II. 4 RELEVANT FACTUAL BACKGROUND 5 A. 6 Claridge filed this action seeking damages after Defendants’ continuous infusion therapy devices, 7 i.e., pain pumps, destroyed the cartilage in Claridge’s shoulder. See Amend. Comp., on file with this 8 Court. As noted in the complaint, the chondrolysis prematurely ended Claridge’s NFL career: 9 59. The pain pumps manufactured and sold by Defendants destroyed Plaintiff Ryan Claridge’s left shoulder, which rendered him unable to play football in the NFL for the New England Patriots or any other team. 10 60. Plaintiff Ryan Claridge’s injuries resulted in severe and permanent injuries and impairments to his left shoulder and very severe lifetime impairments, pain, and restrictions to his activities of daily living. 11 12 61. As a direct result of the destruction of Plaintiff’s shoulder joint from Defendants’ pain pumps, Plaintiff has suffered multiple harms and losses, including, but not limited to, severe physical pain, mental suffering, loss of the enjoyment of life, past and future medical, surgical, and related expenses, impairment, disfigurement, past and future loss of earnings and earning capacity, and loss of household services. 13 14 15 16 17 18 19 20 Claridge disclosed his damage calculation at the outset of discovery. See Sec. Amend. Comp., ¶¶ 59-61. Contrary to the assertion in Defendants’ motion that the extent of Claridge’s damages only became “evident” “over the past month,” Claridge’s first supplemental Rule 26 disclosures – served on March 5, 2019 – identify more than $27,000,000 in damages caused by Defendants. See Plaintiff’s First Supplemental Disclosure of Witnesses and Documents, attached as Ex. 1-A. The extent of Claridge’s damages has, therefore, been evident from the outset of discovery, as have 21 the extent of Claridge’s injuries and the opinions of his physicians. 22 B. Brief background of the medical issues. 23 Claridge learned for the first time in April, 2018, that the pain pumps placed in his shoulder joint 24 had killed the living cells of his shoulder cartilage, which led to the destruction of his shoulder joint 25 cartilage and the eventual diagnosis of chondrolysis. This, after undergoing an arthroscopic procedure on 26 his left shoulder performed by orthopedic surgeon Dr. Ronald Koe a couple months earlier to obtain 27 -3- Case 2:18-cv-01654-GMN-BNW Document 98 Filed 02/17/20 Page 4 of 11 1 some relief from the constant pain and impairments from which Plaintiff had suffered since Defendants’ 2 pain pumps ruined his left shoulder in 2005 and 2006. See Koe Trans., at 42, attached as Ex. 1-B. Dr. 3 Koe’s records reveal that after the procedure, Claridge began to experience weakness in his shoulder 4 Claridge had not previously felt. Dr. Koe suspected the cause of the weakness was a nerve issue in the 5 shoulder and in May 2018 referred Claridge to Dr. Leo Germin for nerve testing. Shortly thereafter 6 Plaintiff saw Dr. Michael Metcalf in Utah, a shoulder surgeon. Dr. Metcalf referred Plaintiff for another 7 EMG by Dr. Janet Balbierz in May, 2018. As noted in her records and in Dr. Koe’s records, Dr. Balbierz 8 diagnosed Claridge with “possible Parsonage-Turner syndrome” following the EMG. See Ex. 1-C. 9 Claridge provided Defendants with Dr. Koe’s medical records, Dr. Balbierz’s records, and Dr. Germin’s 10 records in Claridge’s initial Rule 26 disclosures that were served February 22, 2019. See Plaintiff’s Rule 11 26 Initial Disclosure of Witnesses and Documents, attached hereto as Ex. 1-D. 12 C. 13 As Defendants admit in their motion, Dr. Metcalf opined that “the most pressing problem was 14 [Plaintiff’s] nerve related problem.” Docket 92, at 4:13-15. What Defendants do not mention, however, 15 is that Dr. Metcalf documented that Claridge suffered from post-arthroscopic pain pump caused 16 chondrolysis from the insertion of Defendants’ pain pumps back in 2005-2006: 17 In the background, he also has significant degeneration with his glenohumeral joint that we presume is related to pain pump chondrolysis, but his neurological pathology is making his current situation much worse…I also would like him to repeat his EMG up here. 18 19 See Ex. 1-E. 20 Claridge disclosed his treatment with Dr. Metcalf. Plaintiffs produced Dr. Metcalf’s records in Plaintiff’s February 22, 2019, initial disclosures, and Defendants took Dr. Metcalf’s deposition four months ago on October 7, 2019.1 21 D. 22 There is no mystery nerve condition. As Dr. Metcalf’s records further document, Claridge “went down to get another opinion down at 23 USC, which basically reiterated our feeling that we should not do anything right now while his nerves are 24 declaring themselves.” See Ex. 1-E. The physician at USC, Milan Stevanovic, notes in his records that 25 26 27 1 Additionally, Defendants acknowledged during Plaintiff’s deposition to having received medical records from Dr. Janet Baumann who performed a Clinical Psychological Assessment on Plaintiff in early 2019. See Claridge Trans., at 232:7-15 (“Q. BY MR. HURWITZ: Yeah. She performed a Clinical Psychological Assessment. This is in the records that we got from Dr. Metcalf’s office”). -4- Case 2:18-cv-01654-GMN-BNW Document 98 Filed 02/17/20 Page 5 of 11 1 “Dr. Balderas [sic] mentioned the possibility of Parsonage-Turner Syndrome and getting from the patient 2 a history, it is typical for Parsonage-Turner syndrome or viral infection of the brachial plexus.” See Ex. 3 1-F. Like Dr. Metcalf and Dr. Koe, Dr. Stevanovic’s medical records said the same thing as he testified 4 in his recent deposition. See Stevanocih Trans., at 14:6-16:7, attached as Ex. 1-G. Defendants identified 5 Dr. Stevanovic, along with Drs. Koe, Metcalf, and Balbierz, as potential witnesses in their initial 6 disclosures served on February 27, 2019. See Defendants’ Initial Disclosures attached as Exhibits 1-H; 7 1-I. Claridge disclosed Dr. Stevanovic’s records on September 11, 2019. Defendants have long known about Dr. Key’s treatment. 8 E. 9 Similarly, Defendants claim they were unaware of the opinions of Claridge’s treating 10 psychologist, Dr. Barbara Key, until taking her deposition on January 16, 2020. Like with the other 11 doctors referenced in the motion, however, Claridge provided Dr. Key’s records to Defendants early in 12 discovery as part of Claridge’s second supplemental Rule 26 disclosure served on April 23, 2019. Dr. 13 Key’s records contained her diagnosis of “major depressive disorder.” 14 implicitly concede Dr. Key’s testimony was consistent with her records and, in any event, do not identify 15 any opinions offered at her deposition that are not contained in her records. See Ex. 1-J. Defendants 16 F. 17 On August 15, 2019, Defendants took Claridge’s deposition. Despite having an opportunity to 18 question Claridge about his mental distress and its effect on Claridge’s enjoyment of life, Defendants 19 gave the topic short shrift at the deposition only asking one question before moving on: 20 Defendants deposed Claridge over six months ago. 23 MR. HURWITZ: This will be 16. In it they outline some damages that you’re claiming as a result of the injury. Two of them estimated future life of care. Three of them. Estimated future life of care -- estimated future life care, estimated loss of household and family services, and estimated loss of enjoyment of life. And I was just wondering – take a look at it -- if you -- what is the basis for coming up with those certain figures, if you know? 24 MR. ESCHWEILER: Expert testimony. 25 MR. HURWITZ: If he knows. 26 THE WITNESS: I don’t know. 21 22 27 -5- Case 2:18-cv-01654-GMN-BNW Document 98 Filed 02/17/20 Page 6 of 11 1 See Claridge Trans., at 236:5-16, attached as Ex. 1-K. At present, Claridge is already scheduled to be 2 examined by Defendants’ orthopedic surgeon, Dr. Frederic Nicola, on February 21, 2020. Now, one year 3 after being provided the relevant records, six months after Claridge’s deposition and after having 4 received Claridge’s expert disclosures in September 2019, and less than a month before Defendants’ 5 March 8, 2020, expert witness deadline, Defendants come before the court seeking to force Claridge to 6 submit to two more Rule 35 examinations. Defendants do not meet Rule 35’s standard, and fail even to 7 identify the proposed examiners. III. 8 LEGAL STANDARD 9 Federal Rule of Civil Procedure 35 provides that the court where the action is pending may order 10 a party whose mental or physical condition “is in controversy to submit to a physical or mental 11 examination by a suitably licensed or certified examiner.” FRCP 35(a)(1). As this court has explained, 12 “[t]he rule is permissive and not mandatory” and “[t]he decision whether to order a Rule 35 examination 13 is discretionary even when the ‘good cause’ and ‘in controversy’ requirements are met.” Adele v. Dunn, 14 No. 2:12-cv-00597-LDG-PAL, 2012 U.S. Dist. LEXIS 167876, at *9 (D. Nev. Nov. 26, 2012) “Rule 35, 15 therefore, requires discriminating application by the trial judge, who must decide, as an initial matter in 16 every case, whether the party requesting a mental or physical examination or examinations has 17 adequately demonstrated the existence of the Rule’s requirements of ‘in controversy’ and ‘good 18 cause’….” Schlagenhauf v. Holder, 379 U.S. 104, 119, 85 S. Ct. 234, 243 (1964). IV. 19 ARGUMENT Defendants’ motion does not identify the examiners. 20 A. 21 As an initial matter, this court will deny a Rule 35 motion that does not comply with the 22 “requirement of Rule 35 to specify the conditions and scope of the examination.” Adele v. Dunn, No. 23 2:12-cv-00597-LDG-PAL, 2012 U.S. Dist. LEXIS 167876, at *9 (D. Nev. Nov. 26, 2012) (“In essence, 24 Defendants are asking the court for an order requiring Plaintiff to submit to whatever examination Dr. 25 Olson deems appropriate when he sees and hears from the Plaintiff. This the court will not do.”). 26 Defendants’ motion, however, does not comply with these requirements because it does not even identify 27 the proposed examiners, let alone any of the other parameters required by the rule. Instead, Defendants’ -6- Case 2:18-cv-01654-GMN-BNW Document 98 Filed 02/17/20 Page 7 of 11 1 motion and the supporting declaration of counsel simply request the court order Claridge to “undergo a 2 neurological examination and psychological examination with qualified practitioners at mutual 3 convenient dates and times prior to Defendants’ expert disclosure deadline of March 8, 2020.” See 4 Docket 92, at 6:1-3; Docket 93, at 2:16-22. This does not comply with the plain language of the rule nor 5 this Court’s prior jurisprudence. Instead, it provides the court with an independent basis to deny the 6 motion. 7 B. 8 Defendants have known of Claridge’s injuries and damages since discovery began, and their eleventh hour request for two “IMEs’ three weeks before their deadline for expert disclosures should be denied. 9 As courts have explained, “[a] defendant’s delay in seeking a Rule 35 examination…supports a 10 finding that no good cause has been shown.” McDorman v. Smith, No. 05 C 448, 2008 U.S. Dist. LEXIS 11 44372, at *9 (N.D. Ill. June 5, 2008). Defendants’ contention they only recently determined the extent of 12 Claridge’s damage claims is simply false. Defendants have known since the inception of the lawsuit that 13 Claridge was making significant damage claims that included damages for “garden variety” mental 14 distress. In fact, notwithstanding their allegations that the bases for the examinations only recently came 15 to light, Defendants cite Claridge’s complaint, filed in 2018, as the basis for allowing the examinations. 16 Claridge served Defendants with Rule 26 disclosures in March 2019, identifying all of Claridge’s 17 injuries and nearly $30,000,000 in damages. Nearly one year passed before Defendants filed their 18 motion claiming “over the past month it has become evident Claridge intends to make significant damage 19 claims against the Defendants for both his alleged ongoing mental health issues and the “mysterious 20 ongoing nerve injury.” Docket 93, at 2:11-15. Defendants had the opportunity to ask Claridge about his 21 damage disclosures during his deposition in August, 2019, but spent little time on the topic before 22 moving on. There is simply no truth to Defendants’ assertions that the extent of Claridge’s injuries and 23 damages only recently became evident. 24 Claridge disclosed records from his psychologist, Dr. Barbara Key, in his second supplemental 25 disclosure served on April 23, 2019. Defendants, however, have not shown any of these physicians 26 testified inconsistent with their records. Dr. Stevanovic’s deposition testimony stated exactly what his 27 only medical record reflected from his one July 2018 visit with Plaintiff, and Defendants have known -7- Case 2:18-cv-01654-GMN-BNW Document 98 Filed 02/17/20 Page 8 of 11 1 about that visit for well over one year. In short, these are not new issues in the litigation and the 2 argument is entirely manufactured. Claridge’s neurological condition is not in controversy. 3 C. 4 There simply is no basis for two more dilatory Rule 35 examinations by undisclosed physicians, 5 since Plaintiff’s physical and emotional injuries from the pain pump shoulder destruction have been 6 documented in the medical records for over a year. 7 controversy” requirement entirely. Defendants claim they are entitled to examine Claridge under Rule 35 8 because his doctors do not relate the nerve issue to the chondrolysis. But that is a newly made up and 9 baseless claim. The 2018 nerve injuries were a direct result of Plaintiff’s February 2018 left shoulder 10 surgery by Dr. Koe to try and give Claridge some relief from his twelve years of constant shoulder pain 11 from the pain pumps’ destruction of his cartilage. Unfortunately the Koe surgery did not help, as is 12 commonly the case in medical attempts to relief persons of the pain and impairments of injuries caused 13 by wrongdoers, in this case, Defendants I-Flow and Stryker. Defendants’ argument disregards the “in 14 Defendants have had the medical records from Koe, Germin, Metcalf, Balbierz and Stephanovic 15 since the start of discovery documenting the ongoing pain an impairments from which Claridge has 16 suffered. No additional “IME” examinations are warranted. 17 D. 18 The idea that Defendants need “the unbiased opinions that would result from neurological and 19 psychological IMES” is comical. Despite being “commonly referred to as an ‘independent medical 20 examination’ (IME), there is nothing in the rule requiring the examiner to be ‘independent’ or 21 unconnected to an adverse party.” Hernandez v. Vanveen, No. 2:14-cv-01493-JCM-CWH, 2015 U.S. 22 Dist. LEXIS 60683, at *5-6 (D. Nev. May 8, 2015). “Indeed, ‘Rule 35 [examinations] often arise in the 23 context of developing expert testimony for trial with the expert witnesses then subject to the discovery 24 obligations of Rules 26 and 30,’” and it is often the case “that a Rule 35 examiner also serves as a Rule 25 26 expert.” Id. In other words, the untimely motion is a poorly-disguised ploy to have a second medical 26 doctor examine Claridge’s shoulder under the guise of obtaining an “unbiased” diagnosis of a 27 neurological condition that resulted in a couple of doctor’s appointments. Rule 35 examinations are not independent. -8- Case 2:18-cv-01654-GMN-BNW Document 98 Filed 02/17/20 Page 9 of 11 1 E. Claridge has asserted garden variety physical injuries and mental distress arising from the destruction of his left shoulder cartilage by Defendants’ pain pumps 2 Plaintiff’s claims of shoulder nerve damage from his 2018 Koe surgery to give him some relief 3 from the loss of cartilage are simply a version of common treating physician attempts to alleviate pain 4 and impairments from wrongdoers’ original injuries from wrongful conduct. This case is no different. 5 See Dakis v. Scheffer, 111 Nev. 817, 820, 898 P.2d 116, 118 (1995) (“A negligent defendant is 6 responsible for all foreseeable consequences proximately caused by his or her negligent act”). No 7 physical “IME” examination is justified in this case, given the physician examinations and tests 8 performed by multiple treating non-retained expert physicians over several years, including Drs. Koe, 9 Germin, Metcalf, Balbierz and Stephanovic. 10 Their records and findings are consistent and not in controversy. 11 Likewise, “[C]ourts generally agree that for a plaintiff’s mental status to be ‘in controversy’ 12 requires more than ‘garden variety’ emotional distress or mental anguish allegations that are merely 13 attendant to the suffering of or recovery from a physical injury.” Ornelas v. S. Tire Mart, LLC, 292 14 F.R.D. 388, 393 (S.D. Tex. 2013) (citations omitted); see also Cody v. Marriott Corp., 103 F.R.D. 421, 15 422 (D. Mass. 1984) (“Plaintiff has not placed her mental condition ‘in controversy’ by asserting a claim 16 of damages for physical and emotional distress”). This case is no different. 17 When considered in the context of the entire complaint, the single reference to “mental distress” 18 cited by Defendants cannot be read as anything other than a garden variety mental distress allegation 19 attendant to Claridge’s orthopedic shoulder injury. 20 confirmed this during his deposition when he explained that his emotional distress stemmed from losing 21 the ability to play football which was a natural consequence of the destruction of his left shoulder by 22 Defendants’ pain pumps. See Claridge Trans., at 232:20-24, attached as Ex. 1-K. Claridge, however, has 23 not asserted a claim for intentional or even negligent infliction of emotional distress in his complaint, 24 Defendants do not cite where Claridge has alleged any such claim, other than alleging he suffered pain 25 and metal distress “[a]s a direct result of the destruction of Claridge’s shoulder joint from Defendants’ 26 pain pumps.” In other words, Claridge has simply claimed damages for loss of enjoyment of life, 27 including mental distress, as part of his general pain and suffering damages. See Banks v. Sunrise Hosp., -9- See Sec. Amend. Comp., ¶¶ 59-61. Claridge Case 2:18-cv-01654-GMN-BNW Document 98 Filed 02/17/20 Page 10 of 11 1 120 Nev. 822, 836, 102 P.3d 52, 62 (2004) (“damages for ‘loss of enjoyment of life’ compensate for the 2 limitations, resulting from the defendant’s negligence, on the injured person’s ability to participate in and 3 derive pleasure from the normal activities of daily life, or for the individual’s inability to pursue his 4 talents, recreational interests, hobbies, or avocations,” and are recoverable as “as an element of the 5 general award for pain and suffering”). 6 To the extent Defendants claim Dr. Key’s diagnosis is incomplete or not credible, Defendants can 7 rebut her opinions with their experts based on Barbara Key’s records and deposition. They have no need 8 to put Plaintiff through an unnecessary grueling neuropsychological examination. To the extent 9 Defendants contend this is a new development in the litigation, Defendants have had Dr. Key’s records 10 nearly the entire discovery period and could have raised these alleged deficiencies in her treatment at any 11 time. Instead, Defendants waited until they needed a basis to further interrupt the already unprecedented 12 18 month discovery period in this case. Simply put, the garden variety mental distress allegation cannot 13 be read to place Claridge’s entire psychiatric condition “in controversy” or otherwise justify forcing 14 Claridge to undergo a battery of invasive psychological testing so Defendants may rebut a claim Claridge 15 has not even asserted. IV. 16 CONCLUSION 17 In sum, Defendants have met the basic mandates of Rule 35 for a Court order subjecting the 18 Plaintiff to two additional examinations, by unidentified examiners, at this eleventh hour just 3 weeks 19 prior to the deadline for defendants to provide their own expert reports, and many months after Plaintiff’s 20 expert reports were provided last fall. For these reasons and the reasons set forth above, Defendants’ 21 motion to compel should be denied. 22 DATED this 17th day of February, 2020. 23 GLEN LERNER INJURY ATTORNEYS 24 /s/ Corey M. Eschweiler Corey M. Eschweiler Attorneys for Plaintiff 25 26 27 - 10 - Case 2:18-cv-01654-GMN-BNW Document 98 Filed 02/17/20 Page 11 of 11 1 CERTIFICATE OF SERVICE 2 Pursuant to Fed.R.Civ.P. 5(b) and LR 5-1, I hereby certify that service of the foregoing 3 PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION TO COMPEL NEUROLOGICAL 4 AND PSYCHOLOGICAL was made on February 17, 2020, via CM/ECF to the following: 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Colin P. King, Esq. DEWSNUP KING OLSEN WOREL HAVAS MORTENSEN 36 S. State St., Suite 2400 Salt Lake City, Utah 84111 Facsimile: (801) 363-4218 Co-Counsel for Plaintiff Kevin A. Brown, Esq. Jill P. Northway, Esq. BROWN, BONN & FRIEDMAN, LLP 5528 S. Fort Apache Rd. Las Vegas, Nevada 89148 Facsimile: (702) 942-3901 Attorneys for Defendant I-Flow, LLC Lee J. Hurwitz, Esq. Mark Crane, Esq. SEGAL MCCAMBRIDGE SINGER & MAHONEY, LTD. 233 S. Wacker Dr., Suite 5500 Chicago, Illinois 60606 Attorneys for Defendant I-Flow, LLC Vaughn A Crawford, Esq. Morgan T. Petrelli, Esq. SNELL & WILMER L.L.P 3883 Howard Hughes Pkwy., Suite 1100 Las Vegas, Nevada 89169 Facsimile: (702) 784-5252 Co-Counsel for Defendants Stryker Corp. and Stryker Sales Corp. Christopher P. Norton, Esq. MINTZ LEVIN COHN FERRIS GLOVSKY AND POPEO, P.C. 2029 Century Park East, Suite 3100 Los Angeles, California 90067 Facsimile: (310) 586-3202 Co-Counsel for Defendants Stryker Corp . and Stryker Sales Corp. /s/ Miriam Alvarez An employee of Glen Lerner Injury Attorneys 27 - 11 -