Case Name: Maria Strong, et al. v. Rachel Solomin, et al.

Case No.: 1-13-CV-256517

Motion by Defendants Rachel Solomin and Joshua Solomin to Continue Trial

This case was filed on November 21, 2013, and at a Case Management Conference on November 24, 2014, a Trial Setting Conference was set for February 24, 2015. It is the court’s practice to advise counsel or the parties on every case that is set for a Trial Setting Conference that they must prepare for the Trial Setting Conference by investigating the schedules of all persons who will be involved in the trial and meeting and conferring concerning trial dates 90 to 120 days from the Trial Setting Conference. At the Trial Setting Conference, the trial was set for June 22, 2015.

Defendants’ notice of motion states that this motion is made on the grounds that “Brian Jacks, M.D., an essential expert witness, is unavailable for trial because of death, illness or other excusable circumstances.” Dr. Jacks is not dead or ill. He is planning to attend a professional conference during the week of June 22, 2015. The question is whether this unavailability is excusable within the meaning of CRC 3.1332(c)(1).

The dates assigned for trial are firm. All parties and their counsel must regard the date set for trial as certain. (CRC 3.1332(a).) Continuances of trial are disfavored. (CRC 3.1332(c).)

The motion is supported by the Declaration of Edgar W. Hawkyard (“Hawkyard Declaration”), counsel for Defendants, and the Declaration of Brian Jacks, M.D. (“Jacks Declaration”). Dr. Jacks states in his Declaration that he will be attending a conference in Boston, Massachusetts, from June 22 to June 26, 2015, to advance his professional interests, that he has cleared his psychiatric appointments for that week, and that he has non-refundable costs associated with travel to that conference. Dr. Jacks does not state when he was retained by Defendants, but identifies February 27, 2015 (three days after the Trial Setting Conference) as the date he evaluated the minor Plaintiff Brandon Strong. Dr. Jacks does not disclose whether anyone inquired before the Trial Setting Conference about his unavailability for anticipated trial dates, but he does state that it was six months before the Trial Setting Conference, in August 2014, that he applied to participate in the conference.

The Hawkyard Declaraton states that “[b]efore the Trial Setting Conference, [Mr. Hawkyard] discussed with counsel for plaintiff available trial dates” and that he provided to counsel Phillipe Benoit, who would be appearing in his place at the Trial Setting Conference, his own dates of unavailability as well as “the unavailability of defendants’ anticipated witnesses, including the unavailability of Brian Jacks, M.D.” (Hawkyard Declaration, at 2:16-19.) However, the Hawkyard Declaration does not disclose what Mr. Hawkyard said about Dr. Jacks’ unavailability, what research if an, he did to determine that unavailability, or when he inquired. Specifically, there is no record evidence that Defendants’ counsel made any inquiry of Dr. Jacks concerning his unavailability before the Trial Setting Conference. Based on Dr. Jacks’ statement that he had applied six months earlier to attend the Boston conference, it is reasonable that Dr. Jacks would have disclosed this conflict if he were asked.

The videotaped deposition of Dr. Jacks is set for June 1, 2015. Defendants argue that they will be prejudiced by having to use the deposition at trial because “the trier of fact will not be able to observe Dr. Jacks to assess his credibility” (Reply Memorandum, at 2:12-13) and issues may arise after June 1 that Dr. Jacks would not be able to address. Plaintiffs’ memorandum, without benefit of evidence, recites that Plaintiffs will be prejudiced by delay because they want to move out of state after the trial.

On February 10, 2015, a statement was filed on Defendants’ behalf in preparation for the Trial Setting Conference. That statement advised that Defendants’ counsel was unavailable for trial during the week of June 22, 2015. The Hawkyard Declaration confirms that Mr. Hawkyard is double set for trials that week. There is no declaration from Mr. Benoit explaining why he allowed trial to be set on a week specifically listed by counsel as a trial conflict.

According to the Hawkyard Declaration, all of Defendants’ witnesses can be available for trial the week of June 29, 2015. Plaintiffs do not provide any evidence of unavailability, but essentially argue that the longer the delay the worse for them.

The trial date is continued one week to June 29, 2015.