Preview
9/14/2023
1 ROBERT H. ZIMMERMAN, BAR No. 84345
JUSTIN W. POWERS, BAR No.332255
2 SCHUERING ZIMMERMAN & DOYLE, LLP
400 University Avenue
3 Sacramento, California 95825-6502
(916) 567-0400
4 FAX: 568-0400
5
Attorneys for Defendants LIONEL FOSTER, JR., M.D. 1
6 OROVILLE HOSPITAL UROLOGY, OROVILLE
HOSPITAL, OROHEALTH CORPORATION, ROBERT J.
7 WENTZ
8 SUPERIOR COURT OF CALIFORNIA, COUN1Y OF BUTTE
9
10 DAVID EICHOR, ~ NO. 21CV00711
11 Plaintiff, STIPULATION TO RETAIN A
DISCOVERY REFEREE
12 vs.
13 LIONEL FOSTER, JR., M.D., et al., ASSIGNED FOR ALL PURPOSES TO
JUDGE STEPHEN E. BENSON
14 Defendants.
COMPLAINT FILED: 3/24/21
15
16 Subject to the approval of this court,
17 IT IS HEREBY STIPULATED by and between the parties, through their respective
18 counsel, the following:
19 1. This Stipulation applies to any and a11 pending claims involving Oroville
20 Hospital and Lionel S. Foster, Jr. M.D. which have been filed by David Smith, Esq. of the
21 Smith Zitano Law Firm, and/or Steve Schultz of the Schultz Law Group. These lawsuits
22 include:
23 (1) Scoggins u. Foster, case No. 21CV00887;
24 (2) Peters v. Foster, case No. 21CV00287;
25 (3) Budtanase u. Foster, case No. 22CV00649;
26 (4) Eichorv. Foster, case No. 21CV00711;
27 (5) Bailey v. Foster; San Mateo case No. 22-CIV-02797 (transfer pending)
28 (6) Owston u. Foster, case No. 22CV00703;
0161S665.WPD
STIPULATION TO RETAIN A DISCOVERY REFEREE
Electronically Filed
(7) Shaw v. Foster, case No. 22CV00548;
2 (8) Standlee v. Foster, case No. 23CV00822; and
3 (9) Hunt u. Foster, case No. 23CV00492.
4 2. Each and every one of the above mentioned lawsuits involve an Elam cause
5 of action against Oroville Hospital. Plaintiffs allege that Oroville Hospital was negligent in
6 its selection and periodic evaluation of Lionel S. Foster, Jr., M.D. (See CACI No. 516.)
7 3. A significant portion of the discovery in the above-mentioned lawsuits has
8 been objected to by Defendants based on immunity pursuant to California Evidence Code
9 Section 1157. Defendants have also objected to the discovery on various other grounds.
10 4. The Parties have met and conferred on multiple occasions in order to
11 resolve these various objections. No resolution has been made, and the Parties agree that
12 a Discovery Referee is now necessary.
13 5. The Parties agree that such discovery referee will review each interrogatory
14 and requested document that is disputed by the Parties and make a determination as to
15 whether it has been properly objected to and/or is immune from discovery, or whether
I6 it must be answered and/or produced.
17 6. The Parties agree that such a determination will be final and not subject to
18 any Motion by either Party.
19 7. The parties agree to retain the Honorable Robert Hight (Ret.) as the
20 discovery referee in these matters.
21 8. The parties further agree that Judge Hight may attend personally or by Zoom,
22 each of the depositions, or be available for prompt Zoom consultations either during or
23 immediately following a deposition of those integrally involved in peer review and/or are
24 members of the medical executive committee, the board of trustees, and/or the like. To
25 date, the Parties agree that Judge Hight may attend the depositions of Lionel S. Foster, Jr.,
26 M.D.; Robert Wentz, CEO of Oroville Hospital; Sultan Chopan, M.D.; Matthew Bazzani,
27 M.D., Roy Shannon, M.D; Theopolis C. Dennis, BOT; Edward R. Gilbert, BOT; James H.
28 Moll, BOT; William H Morris, BOT; Laurence Seaman, M.D.; Matthew Fine, M.D.; Gregory
01615665.WPD 2
STIPUlATION TO RETAIN A DISCOVERY REFEREE
Schneringer, M.D.; Denise Lefevre; Scott Chaple; and any Plaintiffin the above mentioned
2 cases in paragraph 1 of this Stipulation and/or any future plaintiff of any cases brought
3 forward by the Smith Zitano Law Firm or the Schultz Law Group.
4 9. The Parties agree that Judge Hight will make real-time rulings at the
5 depositions regarding all Party's objections and that, for the purposes of trial level only,
6 such a ruling will be a final determination at that time, and not subject to any motion by
7 either Party, whatever the Party's reasoning or argument may be. However, Judge Hight's
8 ruling's will hold the same weight and effect as a presiding judge in trial court setting, and
9 thereby may be subject to appeal.
10 I 0. The Parties agree that any "gray-area," wherein Judge Hight cannot make
11 a determination one way or another, the Judge that is presiding over that particular case
12 w ill make a determination based on Motions by the Parties and any subsequent oral
13 argument requested. The Parties further agree that if this involves specific documentation,
14 an in-camera review hearing will be performed by the presiding Judge.
15 IT IS SO STIPULATED.
16 Dated: 4 . / ~ . c ._3
17 ~W-C>PFI.C~_S OF SMITH Zlf A 0
18 '✓ ✓1!)~~--
19 By:/ ( / C ~/
/ _D~1d Smith v
t...--....- 641 Fulton Ave Ste 200
20 Sacramento, CA 95825
21 Attorneys for Plaintiffs
22
23
24
25
26 sity ve
27 to, CA 95825
Attorneys for Defendants
28
0I6 15665.WPD 3
STIPULATION TO RETAIN A DISCOVERY REFEREE
1234567009
ORDER
IT IS HEREBY ORDERED that the Court, having found good cause and based on the
party's stipulation, permits a discovery referee to be retained by the above-mentioned
parties for the following cases: (1) Scoggins v. Foster, case No. 21CV00887; (2) Peters v.
Foster, case No. 21CV00287; (3) Budtanase v. Foster, case No. 22CV00649; (4) Eichor u.
Foster, case No. 21CV00711; (5) Bailey v. Foster", San Mateo case No. 22-ClV-02 797
(transfer pending); (6) Owston v. Foster, case No. 22CV00703; (7) Shaw u. Foster, case
No. 22CV00548; (8) Standlee v. Foster, case No. 23CV00822; (9) Hunt v. Foster, case No.
10 23CV00492; and/or any future cases brought forward by the Smith Zitano Law Firm or the
Il Schultz Law Group involving Oroville Hospital and which includes an Elam cause of
12 action.
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I4 lT lS SO ORDERED.
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16 DAraozw 27 2023
I7 JUDGE OF THE SUPERIOR COURT
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orsrsssswm 4
STIPULATION TO RETAIN A DISCOVERY REFEREE
Preview
9/14/2023 1 ROBERT H. ZIMMERMAN, BAR No. 84345 JUSTIN W. POWERS, BAR No.332255 2 SCHUERING ZIMMERMAN & DOYLE, LLP 400 University Avenue 3 Sacramento, California 95825-6502 (916) 567-0400 4 FAX: 568-0400 5 Attorneys for Defendants LIONEL FOSTER, JR., M.D. 1 6 OROVILLE HOSPITAL UROLOGY, OROVILLE HOSPITAL, OROHEALTH CORPORATION, ROBERT J. 7 WENTZ 8 SUPERIOR COURT OF CALIFORNIA, COUN1Y OF BUTTE 9 10 DAVID EICHOR, ~ NO. 21CV00711 11 Plaintiff, STIPULATION TO RETAIN A DISCOVERY REFEREE 12 vs. 13 LIONEL FOSTER, JR., M.D., et al., ASSIGNED FOR ALL PURPOSES TO JUDGE STEPHEN E. BENSON 14 Defendants. COMPLAINT FILED: 3/24/21 15 16 Subject to the approval of this court, 17 IT IS HEREBY STIPULATED by and between the parties, through their respective 18 counsel, the following: 19 1. This Stipulation applies to any and a11 pending claims involving Oroville 20 Hospital and Lionel S. Foster, Jr. M.D. which have been filed by David Smith, Esq. of the 21 Smith Zitano Law Firm, and/or Steve Schultz of the Schultz Law Group. These lawsuits 22 include: 23 (1) Scoggins u. Foster, case No. 21CV00887; 24 (2) Peters v. Foster, case No. 21CV00287; 25 (3) Budtanase u. Foster, case No. 22CV00649; 26 (4) Eichorv. Foster, case No. 21CV00711; 27 (5) Bailey v. Foster; San Mateo case No. 22-CIV-02797 (transfer pending) 28 (6) Owston u. Foster, case No. 22CV00703; 0161S665.WPD STIPULATION TO RETAIN A DISCOVERY REFEREE Electronically Filed (7) Shaw v. Foster, case No. 22CV00548; 2 (8) Standlee v. Foster, case No. 23CV00822; and 3 (9) Hunt u. Foster, case No. 23CV00492. 4 2. Each and every one of the above mentioned lawsuits involve an Elam cause 5 of action against Oroville Hospital. Plaintiffs allege that Oroville Hospital was negligent in 6 its selection and periodic evaluation of Lionel S. Foster, Jr., M.D. (See CACI No. 516.) 7 3. A significant portion of the discovery in the above-mentioned lawsuits has 8 been objected to by Defendants based on immunity pursuant to California Evidence Code 9 Section 1157. Defendants have also objected to the discovery on various other grounds. 10 4. The Parties have met and conferred on multiple occasions in order to 11 resolve these various objections. No resolution has been made, and the Parties agree that 12 a Discovery Referee is now necessary. 13 5. The Parties agree that such discovery referee will review each interrogatory 14 and requested document that is disputed by the Parties and make a determination as to 15 whether it has been properly objected to and/or is immune from discovery, or whether I6 it must be answered and/or produced. 17 6. The Parties agree that such a determination will be final and not subject to 18 any Motion by either Party. 19 7. The parties agree to retain the Honorable Robert Hight (Ret.) as the 20 discovery referee in these matters. 21 8. The parties further agree that Judge Hight may attend personally or by Zoom, 22 each of the depositions, or be available for prompt Zoom consultations either during or 23 immediately following a deposition of those integrally involved in peer review and/or are 24 members of the medical executive committee, the board of trustees, and/or the like. To 25 date, the Parties agree that Judge Hight may attend the depositions of Lionel S. Foster, Jr., 26 M.D.; Robert Wentz, CEO of Oroville Hospital; Sultan Chopan, M.D.; Matthew Bazzani, 27 M.D., Roy Shannon, M.D; Theopolis C. Dennis, BOT; Edward R. Gilbert, BOT; James H. 28 Moll, BOT; William H Morris, BOT; Laurence Seaman, M.D.; Matthew Fine, M.D.; Gregory 01615665.WPD 2 STIPUlATION TO RETAIN A DISCOVERY REFEREE Schneringer, M.D.; Denise Lefevre; Scott Chaple; and any Plaintiffin the above mentioned 2 cases in paragraph 1 of this Stipulation and/or any future plaintiff of any cases brought 3 forward by the Smith Zitano Law Firm or the Schultz Law Group. 4 9. The Parties agree that Judge Hight will make real-time rulings at the 5 depositions regarding all Party's objections and that, for the purposes of trial level only, 6 such a ruling will be a final determination at that time, and not subject to any motion by 7 either Party, whatever the Party's reasoning or argument may be. However, Judge Hight's 8 ruling's will hold the same weight and effect as a presiding judge in trial court setting, and 9 thereby may be subject to appeal. 10 I 0. The Parties agree that any "gray-area," wherein Judge Hight cannot make 11 a determination one way or another, the Judge that is presiding over that particular case 12 w ill make a determination based on Motions by the Parties and any subsequent oral 13 argument requested. The Parties further agree that if this involves specific documentation, 14 an in-camera review hearing will be performed by the presiding Judge. 15 IT IS SO STIPULATED. 16 Dated: 4 . / ~ . c ._3 17 ~W-C>PFI.C~_S OF SMITH Zlf A 0 18 '✓ ✓1!)~~-- 19 By:/ ( / C ~/ / _D~1d Smith v t...--....- 641 Fulton Ave Ste 200 20 Sacramento, CA 95825 21 Attorneys for Plaintiffs 22 23 24 25 26 sity ve 27 to, CA 95825 Attorneys for Defendants 28 0I6 15665.WPD 3 STIPULATION TO RETAIN A DISCOVERY REFEREE 1234567009 ORDER IT IS HEREBY ORDERED that the Court, having found good cause and based on the party's stipulation, permits a discovery referee to be retained by the above-mentioned parties for the following cases: (1) Scoggins v. Foster, case No. 21CV00887; (2) Peters v. Foster, case No. 21CV00287; (3) Budtanase v. Foster, case No. 22CV00649; (4) Eichor u. Foster, case No. 21CV00711; (5) Bailey v. Foster", San Mateo case No. 22-ClV-02 797 (transfer pending); (6) Owston v. Foster, case No. 22CV00703; (7) Shaw u. Foster, case No. 22CV00548; (8) Standlee v. Foster, case No. 23CV00822; (9) Hunt v. Foster, case No. 10 23CV00492; and/or any future cases brought forward by the Smith Zitano Law Firm or the Il Schultz Law Group involving Oroville Hospital and which includes an Elam cause of 12 action. l3 I4 lT lS SO ORDERED. 15 16 DAraozw 27 2023 I7 JUDGE OF THE SUPERIOR COURT 18 19 20 21 22 23 24 25 26 27 28 orsrsssswm 4 STIPULATION TO RETAIN A DISCOVERY REFEREE