The opinion of the court was delivered by: Proud, Magistrate Judge
Before the Court is Julia Jean Smith's petition to perpetuate her own testimony, pursuant to Federal Rule of Civil Procedure 27. (Doc. 5).
After service of notice upon all expected adverse parties, a hearing was held May 8, 2008. Petitioner and her counsel, were in attendance, along with Assistant United States Attorney James L. Porter, counsel for interested parties/expected defendants Carolyn Booth, Darrell M. Ballinger and Southern Illinois Healthcare Foundation, Inc. The interested parties/expected defendants did not object to the motion.
The petition to perpetuate testimony filed by Julia Jean Smith fully complies with Federal Rule of Civil Procedure 27(a)(1), and the petition and notice were served on all interested parties, and the interested parties did not contest service.
Petitioner Smith submitted an affidavit from her doctor, thereby establishing that she has been diagnosed with a terminal medical condition creating an expedited need to preserve her testimony. Smith is in the process of exhausting her administrative remedies and, therefore, cannot formally file suit under the Federal Tort Claims Act at this juncture. Thus, the interests of justice will be served by perpetuating Smith's testimony at this time via oral deposition, to be recorded by videotape. The subject matter of the deposition shall be Julia Jean Smith's involvement, relationship and interaction with, and the care and treatment provided to her by, the expected adverse parties: Carolyn Booth, Darrell M. Ballinger and Southern Illinois Healthcare Foundation, Inc.; Smith's past, present and future medical treatment, damages and expenses; Smith's past, present and future employment and income. The expected adverse parties and their counsel shall be permitted to attend the deposition, which shall be set at the earliest mutually convenient time, and which shall otherwise be taken in accordance with the Federal Rules of Civil Procedure, and Rule 30 in particular.
IT IS THEREFORE ORDERED that, in accordance with Federal Rule of Civil Procedure 27, petitioner Julia Jean Smith's motion for leave to perpetuate her deposition testimony (Doc. 5) is GRANTED.
CLIFFORD J. PROUD U. S. MAGISTRATE JUDGE
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