Randy's Trucking, Inc. et al v. National Railroad Passenger Corporation et al

Filing 182

FINAL PRETRIAL ORDER, signed by Judge Oliver W. Wanger on 7/30/2010. (Gaumnitz, R)

Randy's Trucking, Inc. et al v. National Railroad Passenger Corporation et al

Doc. 182

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1. I. JURISDICTION AND VENUE RANDY'S TRUCKING, INC., and STAR ) INSURANCE COMPANY, ) ) Plaintiffs, ) ) v. ) ) CITY OF SHAFTER, etc., et al., ) ) Defendants. ) ________________________________ ) ) AND RELATED ACTIONS, CROSS) ACTIONS, AND THIRD PARTY ACTIONS ) ) 1:08-cv-0819 OWW SKO FINAL PRETRIAL ORDER Motion in Limine Date: 8/27/10 12:00 Ctrm. 3 Trial Date: 9/8/10 9:00 Ctrm. 3 (JT-8 days) UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

This Federal Court has original jurisdiction over the

claims against Defendants National Railroad Passenger Corp. ("Amtrak") because Defendant was incorporated by an Act of Congress (45 U.S.C. § 501, et seq.) and the United States of America owns more than 50% of Amtrak's capital stock (28 U.S.C. § 1349). (In re Tail Collision Near Chase, Maryland, (D. Md.

1987) 680 F.Supp. 728, 731.) 2. BNSF claims jurisdiction of BNSF's cross-claim is based 28 U.S.C. § 1367.

upon diversity. 3.

Defendants Amtrak and BNSF have settled with all 1

Dockets.Justia.com

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Plaintiffs other than Randy's Trucking, Inc., and Star Insurance Company, and stipulations are being circulated to remand the remaining Plaintiff claims settled by Amtrak back to state court. II. 1. JURY/NON-JURY

The parties demand a jury trial. III. FACTS

A.

Undisputed Facts 1. On July 19, 2007, a train v. truck collision occurred

in Shafter, California involving Randy's Trucking, Inc., tractortanker rig driven by Defendant Sandoval and insured by Plaintiff Star Insurance Company and an Amtrak train traveling over Defendant BNSF Railway Company's tracks. The truck belonging to

Plaintiff Randy's Trucking, Inc., and insured by Plaintiff Star Insurance Company, suffered property damage. 2. The Amtrak train and the BNSF railroad tracks and

signaling devices were also damaged. 3. Randy's Trucking, Inc. is a corporation licensed to do

and doing business in the State of California. 4. Defendant Sandoval is an individual resident of the

Eastern District of California. 5. Star Insurance Company is a corporation licensed to

conduct a casualty insurance business in California. 6. Amtrak is a public corporation doing business within

the Eastern District of California. 7. Burlington Northern & Santa Fe Railroad is a

corporation, successor to Atchison Topeka & Santa Fe Railroad doing business as a railroad in the Eastern District of California. 2

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B.

Disputed Facts 1. Whether Amtrak and its agents and employees were

negligent in the operation of the train that struck the Randy's vehicle. 2. Whether BNSF exercised due care in exercising control

over the operation of its railway crossing. 3. Whether the train-activated warning devices at the

subject railroad crossing functioned as designed at the time of the accident. 4. Whether Fernando Sandoval was either inattentive or

deliberately tried to beat the train to the crossing. 5. Whether Fernando Sandoval exercised due care in

operating the tractor-trailer in question. 6. Whether the State of California exercised due care in

the placement of its traffic control devices at the subject railway crossing. 7. Whether placement of traffic control devices

constituted a dangerous condition on public property. 8. Whether settlements of the related passenger claims and

claims under the Federal Employer's Liability Act against Amtrak were reasonable. 9. Negligence, causation, and the nature and extent of

damages for Randy's Trucking, Inc., Star Insurance, Amtrak and BNSF. IV. 1. DISPUTED EVIDENTIARY ISSUES

The parties know of no anticipated dispute concerning

admissibility of live and deposition testimony, physical and demonstrative evidence, or the use of special technology at 3

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trial. V. A. Plaintiffs. 1. On July 19, 2007, a train v. truck collision occurred SPECIAL FACTUAL INFORMATION

in Shafter, California involving a Randy's Trucking, Inc. tractor-truck driven by Sandoval, insured by Plaintiff Star Insurance Company, and an Amtrak train traveling over BNSF tracks. 2. Randy's, Star and Sandoval contend that the State of

California is liable for this accident. B. Defendants Plaintiff Randy's Trucking, Inc., and Star Insurance Company claimed damages: 1. Inc.: 2. Star Insurance Company payments to Randy's Trucking, $30,509.78. Two $1,000 deductibles paid by Randy's Trucking, Inc.,

for damages paid by Star Insurance: $2,000. 3. Replacement trailer purchased by Randy's Trucking,

Inc.: $36,865. 4. Loss of revenue by Randy's Trucking, Inc., from date of

accident to time of placement of replacement trailer into service (8/29/08): $246,240 gross. (Computed at $60 per hour x 12 hours

per day x 6 days per week x 52 weeks, plus $4,320 x 5 weeks.) 5. Amtrak is claiming damages of $1,005,433.60 in

equipment repair, loss of use of equipment, train delay, reimbursement of passenger injury settlements, train engineer medical costs, work element costs, and prejudgment interest. 6. BNSF is claiming damages for labor, materials, train 4

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delay, incentives and other losses, including repair to tracks and equipment, totaling $1,052,080.54, plus interest of $330,324.44 to date of trial of September 8, 2010. VI. 1. RELIEF SOUGHT

Randy's Trucking, Inc., Star Insurance Company, Amtrak

and BNSF seek money damages in the amounts as per paragraphs above. VII. 1. DISPUTED ISSUES OF LAW

Randy's contends that its driver Sandoval was

obligated, pursuant to California Vehicle Code § 22450(a) to come to a complete stop at the stop sign on the western side of the railroad crossing, leaving a portion of his trailer on the railroad tracks. 2. BNSF and Amtrak contend that Sandoval violated Vehicle

Code § 22451(a)(1). 3. Randy's contends that the placement of the stop sign at

the subject intersection by the State of California was in violation of Vehicle Code § 21350, et seq. (proper placement of stop signs), was negligent and created a dangerous condition of public property. 4. Both Amtrak and BNSF claim the issues related to

adequacy of devices at crossing and design of crossing, and issues related to train speed and engineer training are preempted by federal law. Randy's, Sandoval, and Star contend that no

preemption argument can affect the State of California's potential liability for the placement of the stop sign and stop limit line where Mr. Sandoval was located at the time of the incident. 5

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VIII.

ABANDONED ISSUES

Although not abandoned, no claims against the State

shall be tried in this action. 2. All passenger personal injury claims against Amtrak and

BNSF have been settled, claims against the City of Shafter and County of Kern dismissed, and claims against the State removed to State Court. 3. Potential claims for comparative indemnity as between

Amtrak and the Randy's Trucking Plaintiffs have not been abandoned or dismissed. They are reserved. IX. Jennifer M. Quinonez 853 Oakmont St. Shafter, CA 93263 889-7077 Fernando M. Sandoval 621 Lucard St. Taft, CA 93268 [phone] Stacy C. Breazeale 1303 3rd Oakland, CA [phone] Ranny McCowen 1303 3rd Oakland, CA [phone] Lorrine Moran 2265 W. Sandy Caruthers, CA 93609 [phone] Christa Bennett 1303 3rd Oakland, CA [phone] WITNESSES

6

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7.

Pam Keilor 281 Pine St. Shafter, CA 93263 746-6215 Matthew R. Cardoza 11608 Linda Lee Bakersfield, CA 93312 587­363 Ronald J. Cardoza 11608 Linda Lee Bakersfield, Ca 93312 587­0363 Jeffrey S. Cardoza 8767 Greenfield Park Dr. Bakersfield, CA 93307 833-8178 Pete Van Nuys 735 S. San Joaquin Stockton, CA 93705 Derek Diep 1303 3rd St. Oakland, CA Lisa Williams 43321 Holster Dr. Bakersfield, CA 93312 [phone] Greg Rowe Employee of Randy's Trucking Randy Griffith Principal of Randy's Trucking Representative of Star Insurance Company Robert Crommelin, expert Matt King, Ph.D., expert April Bacon BNSF employee, damages M.T. Casper BNSF employee; work train crew Kyle Clem BNSF employee; damages

8. 4 5 6 7 8 10. 9 10 11 12 13 14 15 16 17 14. 18 19 20 16. 21 17. 22 18. 23 19. 24 25 26 21. 27 28 /// 20. 15. 13. 12. 11. 9.

7

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22.

Marc Cooter Accident witness Shafter Police Department A.J. Gonzalez BNSF employee; work train crew M.T. Hopkins BNSF employee; work train crew Jorge Jaime Accident witness Shafter Police Department Jennifer K. Lamkin BNSF employee; damages Diana Burnett Accident witness Shafter Police Department James Newell BNSF employee; damages Ken A. Schoenborn BNSF employee; damages Dennis Skeels BNSF, Manager Signals John Stilley BNSF, Manager Public Projects Pat Newell BNSF, Roadmaster Jim Flynn - expert Brian Heikkila - expert Charles Yeaser - expert Nancy Miller Amtrak employee; damages Steven Cates, or State of California's person most knowledgeable regarding federal funding for crossing signalization (preemption issue)

23. 24.

5 6 7 8 9 27. 10 11 28. 12 13 14 30. 15 16 17 32. 18 19 20 21 22 23 37. 24 25 26 27 28 33. 34. 35. 36. 31. 29. 26. 25.

Additional BNSF Witnesses: 38. 39. CHP Officer Marc Cooter CHP Officer Jorge Jaime 8

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40.

CHP Officer Diana Burnett

Additional National Railroad Passenger Corporation and BNSF Railway Company Witness: 41. Adam C. Richardson BNSF Division Engineer

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Counsel are each ordered to submit a list of witnesses to the court along with a copy for use by the Courtroom Deputy Clerk, on the same date and at the same time as the list of exhibits are to be submitted as ordered below. CAUTION Counsel are cautioned that expert witnesses, including percipient experts, must be designated as such. No witness, not

identified as a witness in this order, including "rebuttal" witnesses, will be sworn or permitted to testify at trial. X. EXHIBITS, SCHEDULES AND SUMMARIES

The following is a list of documents or other exhibits that the parties expect to offer at trial. CAUTION Only exhibits so listed will be permitted to be offered into evidence at trial, except as may be otherwise provided in this order. No exhibit not designated in this pretrial order shall be

marked for identification or admitted into evidence at trial. 1. Report. 2. 3. 4. 5. 6. Map showing mileposts. Invoice 5/22/08 $1,052,080.24 with attachments. Maintenance of "Way Labor, Summary and Details." Material costs, signal and other. Calculations for use tax and material handling. 9 Authority for expenditures and BNSF Engineering Summary

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

7. 8. 9. 10. detail. 11. detail. 12. 13. 14. 15. 16. 17.

Calculations for Recovered Material Credit. Invoice payment listing and outside invoice copies. Work train expense calculation and detail. Train/Locomotive Delay, listing, calculation and

Amtrak Loss of Incentives, listing, calculation and

Pre- and post-accident photographs of crossing. Inspection reports of crossing. Dispatch tape transcripts. Signal ticket. Traffic collision report. Contract with Department of Transportation June 14,

1976 to upgrade crossing with No. 9 and No. 9A configuration with federal funds. 18. 19. 20. 21. 22. 23. 24. Track bulletins. Track chart. Track timetables. Caltrans as-built plans for subject roadway. Brian Heikkila report with exhibits. James Flynn report with exhibits. Enlargements, color reproductions and slides for

presentation purposes of above documents. 25. 26. 27. 28. Matt King report with exhibits. Robert Crommelin report with exhibits. Scale diagram of accident scene. Documents supporting amounts paid by Star Insurance

Company for damage to property of Randy's Trucking, Inc. 10

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2. (2).

29.

Contract for purchase of replacement trailer by Randy's

Trucking, Inc. 30. California Public Utilities Commission documents

disclosed pursuant to Resolution L-391. 31. Federal Railroad Administration prior accident reports

32. 33. 34. 35. 36. 37. 38. 39. 40. Andrews. 41.

Charles Yeaser report with exhibits. Photographs of Amtrak damages. Department of Transportation Crossing Accident reports. Event Recorder Custody Log. Tabular and graph data from locomotive event recorder. Crossing Signal Inspection Reports, 7/31/06 to 7/05/07. Deposition exhibits produced by witness John Stilley. Deposition exhibits produced by witness Robert Skeels. Deposition exhibits produced by witness Thomas H.

Deposition exhibits of witness Randy Griffith, Vol. 1 &

42.

Crossing and signal plans described as "BNSF 7200 903-

907 Shafter." 43. 44. Documents regarding Amtrak work element costs. Documents regarding Amtrak train delay damages. XI. DISCOVERY DOCUMENTS

Only specifically designated discovery requests and responses will be admitted into evidence. Any deposition

testimony shall be designated by page and line and such designations filed with the Court on or before August 9, 2010. The opposing party shall counter-designate by line and page from 11

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the same deposition and shall file written objections to any question and answer designated by the opposing party and filed with the court on or before August 20, 2010. Written discovery shall be identified by number of the request. The proponent shall lodge the original discovery

request and verified response with the courtroom deputy one day prior to trial. The discovery request and response may either be

read into evidence, or typed separately, marked as an exhibit, as part of the exhibit marking process, and offered into evidence. 1. National Railroad Passenger Corporation's Responses to

Randy's Trucking, Inc. and Star Insurance Company's Request for Admissions, Set No. One. 2. BNSF Responses to Randy's Request for Production of

Documents, Set One. 3. One. 4. Set One. 5. BNSF Responses to Randy's Request for Production of Amtrak's Responses to Randy's Request for Admissions, BNSF Responses to Randy's Request for Admissions, Set

Documents, Set Two. 6. BNSF Responses to Randy's Request for Production of

Documents, Set Three. 7. Two. 8. Set Two. 9. Form Interrogatories, Set One, from Randy's Trucking, Amtrak's Responses to Randy's Request for Admissions, BNSF Responses to Randy's Request for Admissions, Set

Inc. and Star Insurance Company to State of California, 12

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Department of Transportation, Superior Court of the State of California for the County of Kern, Case No. S-1500-CV-263835 SPC. 10. Responses from State of California, Department of

Transportation, to Form Interrogatories, Set One, from Randy's Trucking, Inc. and Star Insurance Company to State of California, Department of Transportation, Superior Court of the State of California for the County of Kern, Case No. S-1500-CV-263835 SPC. 11. Requests for Admission, Set One, from Randy's Trucking,

Inc. and Star Insurance Company to State of California, Department of Transportation, Superior Court of the State of California for the County of Kern, Case No. S-1500-CV-263835 SPC. 12. Responses from State of California, Department of

Transportation, to Requests for Admission, Set One, from Randy's Trucking, Inc. and Star Insurance Company to State of California, Department of Transportation, Superior Court of the State of California for the County of Kern, Case No. S-1500-CV-263835 SPC. 13. Requests for Production of Documents, Set One, from

Randy's Trucking, Inc. and Star Insurance Company to State of California, Department of Transportation, Superior Court of the State of California for the County of Kern, Case No. S-1500-CV263835 SPC. 14. Responses from State of California, Department of

Transportation, to Requests for Production of Documents, Set One, from Randy's Trucking, Inc. and Star Insurance Company to State of California, Department of Transportation, Superior Court of the State of California for the County of Kern, Case No. S-1500CV-263835 SPC. 15. Special Interrogatories, Set One, from Randy's 13

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Trucking, Inc. and Star Insurance Company to State of California, Department of Transportation, Superior Court of the State of California for the County of Kern, Case No. S-1500-CV-263835 SPC. 16. Responses from State of California, Department of

Transportation, to Special Interrogatories, Set One, from Randy's Trucking, Inc. and Star Insurance Company to State of California, Department of Transportation, Superior Court of the State of California for the County of Kern, Case No. S-1500-CV-263835 SPC. 17. Form Interrogatories, Set Two, from Randy's Trucking,

Inc. and Star Insurance Company to State of California, Department of Transportation, Superior Court of the State of California for the County of Kern, Case No. S-1500-CV-263835 SPC. 18. Responses from State of California, Department of

Transportation, to Form Interrogatories, Set Two, from Randy's Trucking, Inc. and Star Insurance Company to State of California, Department of Transportation, Superior Court of the State of California for the County of Kern, Case No. S-1500-CV-263835 SPC. 19. Special Interrogatories, Set Two, from Randy's

Trucking, Inc. and Star Insurance Company to State of California, Department of Transportation, Superior Court of the State of California for the County of Kern, Case No. S-1500-CV-263835 SPC. 20. Responses from State of California, Department of

Transportation, to Special Interrogatories, Set Two, from Randy's Trucking, Inc. and Star Insurance Company to State of California, Department of Transportation, Superior Court of the State of California for the County of Kern, Case No. S-1500-CV-263835 SPC. 21. Requests for Admission, Set Two, from Randy's Trucking,

Inc. and Star Insurance Company to State of California, 14

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Department of Transportation, Superior Court of the State of California for the County of Kern, Case No. S-1500-CV-263835 SPC. 22. Responses from State of California, Department of

Transportation, to Requests for Admission, Set Two, from Randy's Trucking, Inc. and Star Insurance Company to State of California, Department of Transportation, Superior Court of the State of California for the County of Kern, Case No. S-1500-CV-263835 SPC. 23. Requests for Production of Documents, Set Two, from

Randy's Trucking, Inc. and Star Insurance Company to State of California, Department of Transportation, Superior Court of the State of California for the County of Kern, Case No. S-1500-CV263835 SPC. 24. Responses from State of California, Department of

Transportation, to Requests for Production of Documents, Set Two, from Randy's Trucking, Inc. and Star Insurance Company to State of California, Department of Transportation, Superior Court of the State of California for the County of Kern, Case No. S-1500CV-263835 SPC. 25. Form Interrogatories propounded by State of California

to Randy's Trucking, and Responses thereto by Randy's Trucking, Superior Court of the State of California for the County of Kern, Case No. S-1500-CV-263835 SPC. 26. Special Interrogatories propounded by State of

California to Randy's Trucking, and Responses thereto by Star Insurance, Superior Court of the State of California for the County of Kern, Case No. S-1500-CV-263835 SPC. 27. Deposition transcripts of: a. Fernando Sandoval Munguia (aka Sandoval) 15

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 A. 1. 1.

b. c. d. e. f. g. h. i. j. k. l. m. n. o.

Randy Griffith, Vols. 1 & 2 Lisa Williams Pam Keilor James Flynn John Stilley Robert Skeels Thomas H. Andrews Matthew R. Cardoza Ronald J. Cardoza Jeffrey Cardoza Jennifer Quinonez Kyle Clem (BNSF PMK) Brian Heikkila Charles Yeaser (Amtrak PMK) XII. STIPULATIONS

The parties agree to good faith settlements of

Plaintiffs Smith and Knott and agree that those cases shall be remanded to State Court. XIII. AMENDMENTS - DISMISSALS

Plaintiffs Smith and Knott are settling out of this

Federal case with good faith settlements - unopposed by Randy's Trucking/Sandoval. With such dismissals, the cases of Smith and

Knott must be remanded back to State Court. XIV. Trial Briefs. Counsel are directed to file a trial brief in this matter on or before September 2, 2010. of facts is required. No extended preliminary statement FURTHER TRIAL PREPARATION

The brief should address disputed issues 16

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of substantive law, disputed evidentiary issues of law that will not be resolved in limine, and any other areas of dispute that will require resolution by reference to legal authority. B. Duty of Counsel To Pre-Mark Exhibits. 1. Counsel for the parties are ordered to meet and conduct

a joint exhibit conference on August 25, 2010, at 10:00 a.m. at the law offices of Erickson, Arbuthnot, 2440 West Shaw, Fresno, California for purposes of pre-marking and examining each other's exhibits and preparing an exhibit list. All joint exhibits will

be pre-marked JX1-JX100; all of the Randy's Trucking Plaintiff's exhibits will be pre-marked with numbers 101-200; all of BNSF Defendant's exhibits will be pre-marked with numbers 201-300; and all of the Amtrak Defendant's exhibits will be pre-marked with numbers 301-400. 2. Each and every page of each and every exhibit shall be

individually Bates-stamped for identification purposes, and paginated with decimals and arabic numerals in seriatim; i.e., 1.1, 1.2, 1.3 . . .. 3. Following such conference, each counsel shall have

possession of four (4) complete, legible sets of exhibits, for use as follows: a. Two (2) sets to be delivered to the Courtroom

Deputy Clerk, Renee Gaumnitz, no later than 4:00 p.m. on September 3, 2010, an original for the court and one for the witness. b. One (1) set to be delivered to counsel for the

opposing party and one (1) set to be available for counsel's own use. 17

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4.

Counsel are to confer to make the following

determination as to each of the exhibits proposed to be introduced into evidence and prepare separate indexes, one listing joint exhibits, one listing each party's exhibits: a. Joint exhibits, i.e., any document which both

sides desire to introduce into evidence, will be marked as a joint exhibit (JX), and numbered JX1-___. Joint exhibits shall

be listed as such in the exhibit list in a column that notes they are admitted into evidence without further foundation; b. As to any exhibit, not a joint exhibit, to which

there is no objection to its introduction into evidence, the exhibit will be marked as Plaintiff's Exhibit ___, or Defendant's Exhibit ___ in evidence, and will be listed in the exhibit list as the exhibit of the offering party; c. The exhibit list shall include columns for noting The first column will list any

objections to exhibits.

objections as to foundation; i.e., Plaintiff's Foundation 2 "not authenticated." d. The exhibit list shall include a second column for

noting substantive objections to exhibits based on any other grounds; i.e., "hearsay, improper opinion, irrelevant." e. The exhibit list shall include a description of

each exhibit on the left-hand side of the page, and the three columns outlined above (as shown in the example below). List of Exhibits Admitted Exhibit # Description In Evidence Objection To Foundation Other Objection

18

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f.

The completed exhibit list shall be delivered to

Renee Gaumnitz CRD on or before September 3, 2010, at 4:00 p.m. g. If originals of exhibits cannot be located, copies

may be used, however, the copies must be legible and accurate. If any document is offered into evidence that is partially not legible, the Court sua sponte will exclude it from evidence. C. Discovery Documents. 1. Counsel shall file a list of discovery documents with

Renee Gaumnitz CRD at the same time and date as the witness and exhibit lists are lodged with her, unless the discovery documents are marked as exhibits, which counsel intend to use at trial by designating by number, the specific interrogatory, request for admission, or other discovery document. Counsel shall comply

with the directions of subsection XII (above) for introduction of the discovery document into evidence. D. Motions In Limine. 1. The motions in limine shall be filed by August 9, 2010, The Court

and any responses shall be filed by August 20, 2010.

will conduct a hearing on motions in limine in this matter on August 27, 2010, at 12:00 p.m. in Courtroom 3, Seventh Floor, before the Honorable Oliver W. Wanger United States District Judge, at which time all evidentiary objections, to the extent possible, will be ruled upon, and all other matters pertaining to the conduct of the trial will be settled. E. Trial Documents. 1. Exhibits To Be Used With Witness. During the trial of

the case, it will be the obligation of counsel to provide opposing counsel not less than forty-eight hours before the 19

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witness is called to the witness stand, the name of the witness who will be called to testify and to identify to the Court and opposing counsel any exhibit which is to be introduced into evidence through such witness that has not previously been admitted by stipulation or court order or otherwise ruled upon, and to identify all exhibits and other material that will be referred to in questioning of each witness. If evidentiary

problems are anticipated, the parties must notify the court at least twenty-four hours before the evidence will be presented. F. Counsel's Duty To Aid Court In Jury Voir Dire. 1. Counsel shall submit proposed voir dire questions, if

any, to Renee Gaumnitz CRD at [e-mail] on or before September 2, 2010, at 4:00 p.m. Counsel shall also

prepare a joint "statement of the case" which shall be a neutral statement, describing the claims and defenses for prospective jurors, to be used in voir dire. 2. In order to aid the court in the proper voir dire

examination of the prospective jurors, counsel are directed to lodge with the Court the day before trial a list of the prospective witnesses they expect to call if different from the list of witnesses contained in the Pre-Trial Order of the Court. Such list shall not only contain the names of the witnesses, but their business or home address to the extent known. This does

not excuse any failure to list all witnesses in the Pre-Trial Order. 3. Counsel shall jointly submit, to Renee Gaumnitz CRD the

Friday before trial, a neutral statement of the claims and defenses of the parties for use by the court in voir dire. 20

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G.

Counsel's Duty To Prepare And Submit Jury Instructions. 1. All proposed jury instructions shall be filed and Jury

served on or before September 3, 2010, by 4:00 p.m.

instructions shall be submitted in the following format. 2. Proposed jury instructions, including verdict forms,

shall be submitted via e-mail to [e-mail] formatted in WordPerfect for Windows X3. Counsel shall be

informed on all legal issues involved in the case. 3. The parties are required to jointly submit one set of To accomplish this, the parties

agreed upon jury instructions.

shall serve their proposed instructions upon the other fourteen days prior to trial. The parties shall then meet, confer, and

submit to the Court the Friday before the trial is to commence, one complete set of agreed-upon jury instructions. 4. If the parties cannot agree upon any instruction, they

shall submit a supplemental set of instructions designated as not agreed upon by September 3, 2010, at 4:00 p.m. 5. Each party shall file with the jury instructions any

objection to non-agreed upon instructions proposed by any other party. All objections shall be in writing and shall set forth The

the proposed instruction objected to in its entirety.

objection should specifically set forth the objectionable matter in the proposed instruction and shall include a citation to legal authority explaining the grounds for the objection and why the instruction is improper. A concise statement of argument Where applicable,

concerning the instruction may be included.

the objecting party shall submit an alternative proposed instruction covering the subject or issue of law. 21

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6.

Format.

The parties shall submit one copy of each

instruction.

The copy shall indicate the party submitting the

instruction, the number of the proposed instruction in sequence, a brief title for the instruction describing the subject matter, the test of the instruction, the legal authority supporting the instruction, and a legend in the lower lefthand corner of the instruction: "Given," "Given As Modified," "Withdrawn" and "Refused" showing the Court's action with regard to each instruction and an initial line for the judge's initial in the lower right-hand corner of the instruction. Ninth Circuit Model

Jury Instructions should be used where the subject of the instruction is covered by a model instruction. 7. All instruction should be short, concise, Argumentative

understandable, and neutral statements of the law.

or formula instructions will not be given, and should not be submitted. 8. Parties shall, by italics or underlining, designate any

modifications of instructions from statutory authority, or any pattern instruction such as the Model Circuit Jury Instructions or any other source of pattern instructions, and must specifically state the modification made to the original form instruction and the legal authority supporting the modification. 9. Proposed verdict forms shall be jointly submitted or if

the verdict forms are unagreed upon, each party shall submit a proposed verdict form. Verdict forms shall be submitted to the

Courtroom Deputy Clerk on the first day of the trial. 10. Failure to comply with these rules concerning the

preparation and submission of instructions and verdict forms may 22

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subject the non-complying party and/or its attorneys to sanctions. XV. USE OF LAPTOP COMPUTERS/POWERPOINT FOR PRESENTATION OF EVIDENCE 1. If counsel intends to use a laptop computer for

presentation of evidence, they shall contact Renee Gaumnitz CRD at least one week prior to trial. The Courtroom Deputy Clerk

will arrange a time for any attorney to bring any laptop to be presented to someone from the Court's Information Technology Department, who will provide brief training on how the parties' electronic equipment interacts with the court's audio/visual equipment. If counsel intend to use PowerPoint, the resolution

should be set no higher than 1024 x 768 when preparing the presentation. 2. ALL ISSUES CONCERNING AUDIO-VISUAL MATERIALS AND

COMPUTER INTERFACE WITH THE COURT'S INFORMATION TECHNOLOGY SHALL BE REFERRED TO THE COURTROOM DEPUTY CLERK. XVI. 1. FURTHER DISCOVERY OR MOTIONS

The Motion to remand Plaintiff cases of Smith and Knott

to State Court has been granted. XVII. 1. SETTLEMENT

The parties conducted an all day mediation with Lee M. It was suggested that all

Jacobson, Esq., on June 24, 2010.

claimants against Defendants Randy's Trucking/Sandoval make a joint demand for the insurance policy limits of $3 million. date, no such demand has been forthcoming. XVIII. 1. SEPARATE TRIAL OF ISSUES To

The issue of liability will be tried in a first 23

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phase of the trial, followed by, if necessary, a damages phase. The two phases shall be tried before the same jury in a continuous trial. XIX. 1. IMPARTIAL EXPERTS, LIMITATIONS OF EXPERTS

Unnecessary. XX. ATTORNEYS' FEES

1.

No attorneys' fees are sought. XXI. ESTIMATE OF TRIAL TIME

1.

Eight days. XXII. TRIAL DATE

1.

September 8, 2010, at 9:00 a.m., in Courtroom 3, on the

Seventh Floor. XXIII. 1. NUMBER OF JURORS AND PEREMPTORY CHALLENGES

There are three sides to this case: Randy's Trucking

Plaintiffs shall have four peremptory challenges; the Defendants shall share four peremptory challenges. person jury. XXIV. 1. AMENDMENT OF FINAL PRETRIAL ORDER There will be an eight

The Final Pretrial Order shall be reviewed by the

parties and any corrections, additions, and deletions shall be drawn to the attention of the Court immediately. Otherwise, the

Final Pretrial Order may only be amended or modified to prevent manifest injustice pursuant to the provisions of Fed. R. Civ. P. 16(e). XXV. 1. /// /// 24 MISCELLANEOUS

Protective Order will be sought regarding disclosure of

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"BNSF 7200 903-907 Shafter."

IT IS SO ORDERED. Dated: July 30, 2010 emm0d6 /s/ Oliver W. Wanger UNITED STATES DISTRICT JUDGE

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