Statement Case Management Conference

Cal. Super. - 6th Dist.October 19, 2018

CM-110 ATTORNEY OR PARTY WITHOUT ATTORNEY (Name, State Bar number, and address): FAEGRE BAKER DANIELS, LLP Amanda Semaan (Bar No. 293896) 11766 Wilshire Blvd., Suite 750, Los Angeles, CA 90025 TELEPHONE NO. 310.500.2129 FAX NO. (Optional) 310.500.2091 E-MAIL ADDRESS 1optiona1J: amanda.semaan@faegrebd.com ATTORNEY FOR /Name) Defendant Boston Scientific Corporation SUPERIOR COURT OF CALIFORNIA, COUNTY OF Santa Clara STREET ADDRESS 191 North First Street MAILING ADDRESS cITY AND zIP coos San Jose, CA 95113 BRANCH NAME Downtown Superior Court PLAINTIFF/PETITIONER: California Spine and Neurosurgery Institute DEFENDANT/RESPONDENT: Boston Scientific Corporation FOR COURT USE ONLY CASE MANAGEMENT STATEMENT CASE NUMBER (Check one): [ZJ UNLIMITED CASE O LIMITED CASE 18CV336788 (Amount demanded (Amount demanded is $25,000 exceeds $25,000) or less) A CASE MANAGEMENT CONFERENCE is scheduled as follows: Date: July 18, 2019 Time: 10:00 am Dept.: 8 Div.: Room: Address of court (if different from the address above): [ZJ Notice of Intent to Appear by Telephone, by (name): Amanda Semaan INSTRUCTIONS: All applicable boxes must be checked, and the specified information must be provided. 1. Party or parties (answer one): a. W This statement is submitted by party (name): Boston Scientific Corporation b. D This statement is submitted jointly by parties (names): 2. Complaint and cross-complaint (to be answered by plaintiffs and cross-complainants only) a. The complaint was filed on (date): b. D The cross-complaint, if any, was filed on (date): · 3. Service (to be answered by plaintiffs and cross-complainants only) a. D All parties named in the complaint and cross-complaint have been served, have appeared, or have been dismissed. b. D The following parties named in the complaint or cross-complaint (1) D have not been served (specify names and explain why not).· (2) D have been served but have not appeared and have not been dismissed (specify names): (3) D have had a default entered against them (specify names). c. D The following additional parties may be added (specify names, nature of involvement in case, and date by which they may be served): 4. Description of case a. Type of case in [u complaint D cross-complaint (Describe, including causes of action). Plaintiff CSNI is pursuing claims for breach of oral contract and promissory estoppel. Defendant BSC disputes those claims and that plaintiff CSNI is entitled to any relief. Page 1 of 5 Form Adopted for Mandatory Use Judicial Council of California CM-110 [Rev. July 1, 2011] CASE MANAGEMENT STATEMENT Cal. Rules of Court, rules 3. 720-3. 730 www.courts.ca.gov Electronically Filed by Superior Court of CA, County of Santa Clara, on 7/2/2019 1:04 PM Reviewed By: System System Case #18CV336788 Envelope: 3081503 18CV336788 Santa Clara - Civil System System CM-110 PLAINTIFF/PETITIONER: California Spine and Neurosurgery Institute DEFENDANT/RESPONDENT Boston Scientific Corporation CASE NUMBER: 18CV336788 4. b. Provide a brief statement of the case, including any damages. (If personal injury damages are sought, specify the injury and damages claimed, including medical expenses to date [indicate source and amount], estimated future medical expenses, lost earnings to date, and estimated future lost earnings. If equitable relief is sought, describe the nature of the relief) See Attachment A attached hereto. [ZJ (If more space is needed, check this box and attach a page designated as Attachment 4b.) 5. Jury or nonjury trial The party or parties request [ZJ a jury trial D a nonjury trial. (If more than one party, provide the name of each party requesting a jury trial).· Plaintiff CSNI requests a jury trial; defendant BSC disputes that plaintiff is entitled to a jury trial. 6. Trial date a. D The trial has been set for (date).· b. W No trial date has been set. This case will be ready for trial within 12 months of the date of the filing of the complaint (if not, explain): Case may be ready for trial approximately 12 months from date of remand from federal court c. Dates on which parties or attorneys will not be available for trial (specify dates and explain reasons for unavailability): 7. Estimated length of trial The party or parties estimate that the trial will take (check one): a. [ZJ days (specify number): 2 days b. D hours (short causes) (specify): 8. Trial representation (to be answered for each party) The party or parties will be represented at trial [ZJ by the attorney or party listed in the caption D by the following: a. Attorney: b. Firm: c. Address: d. Telephone number: e. E-mail address: D Additional representation is described in Attachment 8. f. Fax number: g. Party represented: 9. Preference D This case is entitled to preference (specify code section): 10. Alternative dispute resolution (ADR) a. ADR information package. Please note that different ADR processes are available in different courts and communities; read the ADR information package provided by the court under rule 3.221 for information about the processes available through the court and community programs in this case. (1) For parties represented by counsel: Counsel W has D has not provided the ADR information package identified in rule 3.221 to the client and reviewed ADR options with the client. (2) For self-represented parties: Party D has D has not reviewed the ADR information package identified in rule 3.221. b. Referral to judicial arbitration or civil action mediation (if available). (1) D This matter is subject to mandatory judicial arbitration under Code of Civil Procedure section 1141.11 or to civil action mediation under Code of Civil Procedure section 1775.3 because the amount in controversy does not exceed the statutory limit. (2) D Plaintiff elects to refer this case to judicial arbitration and agrees to limit recovery to the amount specified in Code of Civil Procedure section 1141.11. (3) [ZJ This case is exempt from judicial arbitration under rule 3.811 of the California Rules of Court or from civil action mediation under Code of Civil Procedure section 1775 et seq. (specify exemption): California Rule of Court 3.811 (b )(8) CM-110[Rev.July1,2011] CASE MANAGEMENT STATEMENT Page2of5 CM-110 PLAINTIFF/PETITIONER California Spine and Neurosurgery Institute PEFENDANT/RESPONDENT Boston Scientific Corporation CASE NUMBER: 18CV336788 10. c. Indicate the ADR process or processes that the party or parties are willing to participate in, have agreed to participate in, or have already participated in (check all that apply and provide the specified information): The party or parties completing If the party or parties completing this form in the case have agreed to this form are willing to participate in or have already completed an ADR process or processes, participate in the following ADR indicate the status of the processes (attach a copy of the parties' ADR processes (check all that apply): stipulation). CJ Mediation session not yet scheduled CJ CJ Mediation session scheduled for (date): ( 1) Mediation CJ Agreed to complete mediation by (date).· CJ Mediation completed on (date): CJ Settlement conference not yet scheduled (2) Settlement CJ CJ Settlement conference scheduled for (date): conference CJ Agreed to complete settlement conference by (date): CJ Settlement conference completed on (date): CJ Neutral evaluation not yet scheduled CJ CJ Neutral evaluation scheduled for (date): (3) Neutral evaluation CJ Agreed to complete neutral evaluation by (date): CJ Neutral evaluation completed on (date): CJ Judicial arbitration not yet scheduled (4) Nonbinding judicial CJ CJ Judicial arbitration scheduled for (date): arbitration CJ Agreed to complete judicial arbitration by ( date). CJ Judicial arbitration completed on (date): CJ Private arbitration not yet scheduled (5) Binding private CJ CJ Private arbitration scheduled for (date): arbitration CJ Agreed to complete private arbitration by (date): CJ Private arbitration completed on (date): CJ ADR session not yet scheduled CJ CJ ADR session scheduled for (date): (6) Other (specify) CJ Agreed to complete ADR session by (date). CJ ADR completed on (date) CM-110 [Rev. July 1, 2011] CASE MANAGEMENT STATEMENT Page 3 of 5 f"M.110 t-- PLAINTIFF/PETITIONER: California Spine and Neurosurgery Institute DEFENDANT/RESPONDENT: Boston Scientific Corporation CASE NUMBER: 18CV336788 11. Insurance a. D Insurance carrier, if any, for party filing this statement (name): b. Reservation of rights: D Yes D No c. D Coverage issues will significantly affect resolution of this case (explain): 12. Jurisdiction Indicate any matters that may affect the court's jurisdiction or processing of this case and describe the status. D Bankruptcy D Other (specify): Status: 13. Related cases, consolidation, and coordination a. D There are companion, underlying, or related cases. (1) Name of case: (2) Name of court: (3) Case number: (4) Status D Additional cases are described in Attachment 13a. b. D A motion to D consolidate D coordinate will be filed by (name party): 14. Bifurcation D The party or parties intend to file a motion for an order bifurcating, severing, or coordinating the following issues or causes of action (specify moving party, type of motion, and reasons): 15. Other motions [Z] The party or parties expect to file the following motions before trial (specify moving party, type of motion, and issues): Defendant BSC expects to seek summary judgment before trial on at least the issues that plaintiff CSNl's claims are preempted by ERISA and fail on their merits. 16. Discovery a. D The party or parties have completed all discovery. b. W The following discovery will be completed by the date specified (describe all anticipated discovery): Party Description Date Boston Scientific Corporation Requests for Production, Interrogatories, and potentially Requests for Admission October 31, 2019 c. D The following discovery issues, including issues regarding the discovery of electronically stored information, are anticipated (specify).· CM-110 IRev. July 1, 2011] CASE MANAGEMENT STATEMENT Page 4 of 5 CM-110 PLAINTIFF/PETITIONER: California Spine and Neurosurgery Institute DEFENDANT/RESPONDENT: Boston Scientific Corporation CASE NUMBER: 18CV336788 17. Economic litigation a. D This is a limited civil case (i.e., the amount demanded is $25,000 or less) and the economic litigation procedures in Code of Civil Procedure sections 90-98 will apply to this case. b. D This is a limited civil case and a motion to withdraw the case from the economic litigation procedures or for additional discovery will be filed (if checked, explain specifically why economic litigation procedures relating to discovery or trial should not apply to this case). 18. Other issues D The party or parties request that the following additional matters be considered or determined at the case management conference (specify): 19. Meet and confer a. W The party or parties have met and conferred with all parties on all subjects required by rule 3. 724 of the California Rules of Court (if not, explain). b. After meeting and conferring as required by rule 3. 724 of the California Rules of Court, the parties agree on the following (specify). See Attachment A attached hereto. 20. Total number of pages attached (if any). ---- 2 I am completely familiar with this case and will be fully prepared to discuss the status of discovery and alternative dispute resolution, as well as other issues raised by this statement, and will possess the authority to enter into stipulations on these issues at the time of the case management conference, including the written authority of the party where required. Date: July 2, 2019 Amanda Semaan ►(TYPE OR PRINT NAME) ►(TYPE OR PRINT NAME) (SIGNATURE OF PARTY OR ATTORNEY) D Additional signatures are attached. CM-110 [Rev. July 1, 2011) CASE MANAGEMENT STATEMENT Page 5 of 5 CALIFORNIA SPINE AND NEUROSURGERY INSTITUTE v. BOSTON SCIENTIFIC CORPORATION SANTA CLARA SUPERIOR COURT CASE NO.: 18CV336788 ATTACHMENT A TO DEFENDANT BOSTON SCIENTIFIC CORPORA TIO N'S CASE MANAGEMENT STATEMENT 4. Description of case b. Provide a brief statement of the case, including any damages. (If personal injury damages are sought, specify the injury and damages claimed, including medical expenses to date [indicate source and amount], estimated future medical expenses, lost earnings to date, and estimated future lost earnings. If equitable relief is sought, describe the nature of the relief.) Plaintiff California Spine and Neurosurgery Institute ("CSNI") treated a participant ("Participant") in defendant Boston Scientific Corporation's ("BSC") employee welfare benefit plan ("Plan"). BSC is the Plan Administrator. Before allegedly performing surgery on the Participant, CSNI called the Plan's third-party administrator, Blue Cross and Blue Shield of Massachusetts, Inc ("TPA"), to obtain information on the Participant's "out-of-network benefits for an office-specialist visit" at CSNI's facility. During that call, the TPA confirmed that CSNI was outside of the Participant's network under the Plan and answered other questions the CSNI employee had about the Plan and the Participant's rights under it, including that payments under the Plan were subject to the Participant's 40% co-insurance for any "amount above allowed charge" under the Plan after the Participant met the Plan's deductible requirement. CSNI did not request, and the TP A did not promise, any payment under the Plan; the TP A did not authorize CSNI's provision of any medical services to the Participant. Thereafter, CSNI alleges that it performed surgery on the Participant and submitted claims related to that procedure to the Plan for payment ("Claims"). The TP A denied the Claims. CSNI sued BSC in state court and alleged that it entered into an oral contract with CSNI during CSNI' s call with the TP A and breached that purported contract by declining to pay CSNI for the Claims. CSNI also alleges that BSC is estopped from refusing to pay the Claims. CSNI seeks payment for the Claims plus interest. Most of CSNI's material allegations appear to be stock allegations common to a form complaint that CSNI's counsel regularly uses. BSC denies all liability on CSNI's claims and that CSNI is entitled to any relief. BSC has provided CSNI with evidence that ( a) disproves many of CSNI' s material allegations, (b) confirms that CSNI's claims are preempted by ERISA because they relate to BSC's administration of the Plan, and ( c) demonstrates that neither BSC nor TP A made any oral contract or promise to CSNI, so no set of facts will support CSNI' s claims or entitle it to the relief it seeks. See, e.g., Port Med. Wellness, Inc. v. Conn. Gen. Life Ins. Co., 233 Cal. Rptr. 3d 830, 839 (Ct. App. 2018), reh 'g denied (June 6, 2018), review denied (Sept. 12, 2018) ("[S]tate law claims that relate to a welfare benefit plan or the handling of claims for benefits under such a plan are preempted [under ERISA § 514, 29 U.S.C. § 1144(a)]"). 19. Meet and Confer b. After meeting and conferring as required by rule 3. 724 of the California Rules of Court, the parties agree on the following BSC's Proposed Agreements Regarding ESI 1. Disclosure or discovery of electronically stored information should be handled as follows: All electronically stored information shall be produced in Bates numbered TIFF (or, if not possible, in .PDF) images with a metadata load file, organized by family (to the extent possible) with the following metadata fields: BegDoc, EndDoc, BegAttach, EndAttach, FileName, Title, Author, CreateDate, CreateTime, LastModDate, LastModTime, SentDate, SentTime, RecdDate, RecdTime, From, To, CC, BCC, Em_Subject, FileSize, FilePath, FileType, NativeFilePath, and Custodian, unless otherwise agreed to by the parties or ordered by the Court. 2. The parties should provide a privilege log with information sufficient to comply with California Code of Civil Procedure § 2031.240 for any documents they withhold, in whole or in part, under claim of attorney-client privilege, work-product protection, or any other privilege or protection. 3. The parties should abide by the following claw back provision: In the event that a document protected by the attorney-client privilege, the attorney work-product doctrine or other applicable privilege or protection is unintentionally produced by any party to this proceeding, the producing party may request that the document be returned. In the event that such a request is made, all parties to the litigation and their counsel shall promptly return all copies of the document in their possession, custody, or control to the producing party and shall not retain or make any copies of the document or any documents derived from such document. The producing party shall promptly identify the returned document on a privilege log. The unintentional disclosure of a privileged or otherwise protected document shall not constitute a waiver of the privilege or protection with respect to that document or any other documents involving the same or similar subject matter. 4. The parties will work to develop a proposed stipulated protective order to submit to the Court to protect confidential information that may be subject to discovery in this proceeding. 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 23 24 25 26 27 28 I, Lorena Lazheztter, declare that I am a citizen of the United States and employed by Faegre Baker Daniels LLP. I am over the age of eighteen years and not a party to the within- entitled action. My business address is 11766 Wilshire Blvd., Suite 750, Los Angeles, CA 90025. On July 2, 2019, I served a copy of the within document(s): CASE MANAGEMENT STATEMENT SUBMITTED BY DEFENDANT BOSTON SCIENTIFIC CORPORATION □ □ □ PROOF OF SERVICE by placing the document(s) listed above in a sealed envelope with postage thereon fully prepaid, in the United States mail at Los Angeles, California addressed as set forth below. by placing the document(s) listed above in a sealed Federal Express envelope and affixing a pre-paid air bill, and causing the envelope to be delivered to a Federal Express agent for overnight delivery. by causing the document(s) listed above to be personally delivered to the person(s) at the address( es) set forth below. by transmitting via e-mail or electronic transmission the document(s) listed above to the person(s) at the e-mail address(es) set forth below. Jonathan A. Stieglitz Nelson Hardiman LLP 1100 Glendon Avenue, 14th Floor Los Angeles, CA 90024 Email: j stiegli tz@nelsonhardiman.com Telephone: 310.203.2800 Attorney for Plaintiff California Spine and Neurosurgery Institute 19 I am readily familiar with the firm's practice of collection and processing correspondence for mailing. Under that practice it would be deposited with the U.S. Postal Service on that same 20 day with postage thereon fully prepaid in the ordinary course of business. I am aware that on motion of the party served, service is presumed invalid if postal cancellation date or postage 21 meter date is more than one day after date of deposit for mailing in affidavit. 22 I declare under penalty of perjury under the laws of the State of California that the above is true and correct. Executed on July 2, 2019, at Los Angeles, California. US.121116418.02 PROOF OF SERVICE