United States District Court, D. Nevada
MARK A. HANSON, Petitioner,
CRAIG FARWELL, et al., Respondents.
MIRANDA M. DU, UNITED STATES DISTRICT JUDGE
habeas corpus action, the Court has granted the
petitioner's motion for an evidentiary hearing, has set
the evidentiary for January 16, 17, and 18, 2018, and has set
a schedule for preparations for the evidentiary hearing.
See Order entered June 6, 2017 (ECF No. 127); Order
entered June 30, 2017 (ECF No. 130); Order entered July 19,
2017 (ECF No. 132).
October 20, 2017, respondents filed a Motion to Amend
Evidentiary Hearing Scheduling Order (ECF No. 138). In their
motion, respondents state that one of their experts, Dr. Lary
Simms, could not complete his report by the November 3, 2017,
due date for exchange of expert reports. Respondents,
therefore, propose that the exchange of expert reports be
divided into two exchanges, the first, for Dr. Kenneth Monson
and Dr. Sandra Cetl, on November 3, 2017, and the second, for
Dr. Janice Ophoven and Dr. Simms, on December 18, 2017.
Respondents also request: that the deadline for exchange of
witness lists and exhibit lists be delayed from November 9,
2017, to December 20, 2017; that the deadline for the parties
to file pre-hearing briefs be delayed from November 17, 2017,
and December 1, 2017, to December 26, 2017, and January 9,
2018; and the that deadline for the filing of pre-hearing
motions be delayed from November 17, 2017, to December 26,
2017. Next, respondents state that Dr. Simms will be
unavailable when the evidentiary hearing is conducted on
January 16 to 18, 2018; respondents request that Dr. Simms be
allowed to testify on January 12 or January 26, 2018.
petitioner, Mark A. Hanson, responded to the motion to amend
the scheduling order on the same day, October 20, 2017 (ECF
No. 139). Hanson's counsel state that Hanson has no
opposition to the two-part exchange of expert reports. Hanson
also has no opposition to postponing the filing of witness
lists and exhibit lists, pre-hearing briefs, and pre-hearing
motions. Hanson objects to having Dr. Simms testify on
January 26, 2018, but would agree to having him testify on
January 12, 2018. Alternatively, Hanson's counsel state
that they would agree to a video deposition of Dr. Simms.
Respondents did not file a reply to respondents' response
to their motion to amend the scheduling order.
the Court finds unacceptable respondents' notice of the
difficulty they are facing in timely preparing for the
evidentiary hearing as scheduled. The current schedule was
set in an order entered on July 19, 2017 (ECF No. 132). Three
months passed, and then, after the due dates for exchange of
expert witnesses' identities, with the due date for
exchange of expert witness reports two weeks away, and with
other due dates and the evidentiary hearing itself
approaching, respondents inform the Court that
“[u]nfortunately, one of Respondents' experts, Dr.
Simms, is out of state” during the time when the
evidentiary hearing will be conducted. No other explanation
for Dr. Simms' unavailability is provided; and no
explanation is given for why the notice of his unavailability
is provided only now. Apparently, respondents retained an
expert who is unable to attend the evidentiary hearing as
scheduled. Respondents do not explain why the testimony of
this particular expert witness is necessary.
these circumstances, the Court will not reschedule the
evidentiary hearing; the evidentiary hearing will remain set
for January 16, 17, and 18, 2018. Nor will the Court set a
special schedule to take testimony from Dr. Simms.
Respondents' request that the Court set Dr. Simms
testimony for either January 12 or 26, 2018, is denied.
Respondents may offer deposition testimony of Dr. Simms as
evidence at the evidentiary hearing, in accordance with
Hanson's agreement in that regard.
Court will amend the schedule for preparation for the
evidentiary hearing as follows: The disclosures of expert
witness reports will be in two parts, with the first, for Dr.
Monson and Dr. Cetl, on November 3, 2017 (presumably already
exchanged), and the second, for Dr. Ophoven and Dr. Simms, on
December 18, 2017. Witness lists and exhibit lists, to the
extent the parties have not already filed them (see
ECF Nos. 142, 143) will be due November 17, 2017.
Hanson's pre-hearing brief will be due November 22, 2017;
respondents' responsive pre-hearing brief will be due
December 6, 2017; Hanson's reply will be due December 13,
2017. Prehearing motions will be due November 22, 2017. In
all other respects, the schedule will be as set forth in the
order entered July 19, 2017 (ECF No. 132).
October 23, 2017, respondents filed a Joint Motion for
Discovery (ECF No. 140). In that motion, respondents request
leave of court to serve upon Primary Children's Hospital,
in Utah, a subpoena for production of medical records
relating to the treatment and death of Tamara Smart.
Respondents agree to share with Hanson any records received
as a result of the subpoena. The motion is presented as a
joint motion, with Hanson apparently in concurrence. The
Court notes that the information sought by this discovery
request does not appear to relate directly to the issue to be
addressed at the evidentiary hearing. See Order
entered June 6, 2017 (“The Court determines that an
evidentiary hearing is warranted with respect to Hanson's
contention that scientific advancement since the time of his
trial has undermined expert testimony on which his conviction
was based.”). Nevertheless, it does appear to be at
least tangentially related, the parties are in agreement
regarding the discovery request, and the Court finds there is
good cause for the discovery; therefore, pursuant to Rule 6
of the Rules Governing Section 2254 Cases in the United
States District Courts, the Court will grant the motion for
leave to conduct this discovery.
therefore ordered that respondents' Motion to Amend
Evidentiary Hearing Scheduling Order (ECF No. 138) is granted
in part and denied in part, as explained above.
further ordered that the Joint Motion for Discovery (ECF No.
140) is granted. Respondents are granted leave of court to
serve a subpoena on Primary Children's Hospital for
production of ...