Barker v. CVS Pharmacy, Inc.

Filing 13

PRETRIAL SCHEDULING ORDER signed by Judge Morrison C. England, Jr on 5/21/12: Designation of Expert Witnesses due by 5/13/2013. Discovery due by 3/13/2013. Dispositive Motions filed by 9/19/2013. Final Pretrial Conference set for 11/14/2013 at 02:00 PM in Courtroom 7 (MCE) before Judge Morrison C. England Jr.. Jury Trial set for 1/13/2014 at 09:00 AM in Courtroom 7 (MCE) before Judge Morrison C. England Jr.. (Kaminski, H)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ROBERT M. BARKER, 12 13 No. 2:12-cv-00444-MCE-DAD Plaintiff, v. PRETRIAL SCHEDULING ORDER 14 CVS PHARMACY, INC., et al., 15 Defendants. ___________________________/ 16 17 18 After reviewing the parties’ Joint Status Report, the Court makes the following Pretrial Scheduling Order. 19 I. SERVICE OF PROCESS 20 All named Defendants have been served and no further service 21 is permitted without leave of court, good cause having been 22 shown. 23 II. 24 No joinder of parties or amendments to pleadings is 25 ADDITIONAL PARTIES/AMENDMENTS/PLEADINGS permitted without leave of court, good cause having been shown. 26 III. JURISDICTION/VENUE 27 Jurisdiction is predicated upon 28 U.S.C. § 1331. 28 Jurisdiction and venue are not contested. 1 1 IV. DISCOVERY 2 All discovery, with the exception of expert discovery, shall 3 be completed by March 13, 2013. 4 means that all discovery shall have been conducted so that all 5 depositions have been taken and any disputes relative to 6 discovery shall have been resolved by appropriate order if 7 necessary and, where discovery has been ordered, the order has 8 been obeyed. 9 the magistrate judge’s calendar in accordance with the local 10 In this context, “completed” All motions to compel discovery must be noticed on rules of this Court. 11 V. DISCLOSURE OF EXPERT WITNESSES 12 All counsel are to designate in writing, file with the 13 Court, and serve upon all other parties the name, address, and 14 area of expertise of each expert that they propose to tender at 15 trial not later than May 13, 2013.1 16 accompanied by a written report prepared and signed by the 17 witness. 18 26(a)(2)(B). The designation shall be The report shall comply with Fed. R. Civ. P. 19 Within twenty (20) days after the designation of expert 20 witnesses, any party may designate a supplemental list of expert 21 witnesses who will express an opinion on a subject covered by an 22 expert designated by an adverse party. 23 /// 24 /// 25 /// 26 1 27 28 The discovery of experts will include whether any motions based on Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) and/or Kumho Tire Co. v. Carmichael, 119 S. Ct. 1167 (1999) are anticipated. 2 1 The right to designate a supplemental expert for rebuttal 2 purposes only shall apply to a party who has not previously 3 disclosed an expert witness on the date set for expert witness 4 disclosure by this Pretrial Scheduling Order. 5 Failure of a party to comply with the disclosure schedule as 6 set forth above in all likelihood will preclude that party from 7 calling the expert witness at the time of trial. 8 witness not appearing on the designation will not be permitted to 9 testify unless the party offering the witness demonstrates: 10 (a) that the necessity for the witness could not have been 11 reasonably anticipated at the time the list was proffered; 12 (b) that the Court and opposing counsel were promptly notified 13 upon discovery of the witness; and (c) that the witness was 14 promptly made available for deposition. 15 An expert For purposes of this Pretrial Scheduling Order, an “expert” 16 is any person who my be used at trial to present evidence under 17 Rules 702, 703, and 705 of the Federal Rules of Evidence, which 18 include both “percipient experts” (persons who, because of their 19 expertise, have rendered expert opinions in the normal course of 20 their work duties or observations pertinent to the issues in the 21 case) and “retained experts” (persons specifically designated by 22 a party to be a testifying expert for the purposes of 23 litigation). 24 Each party shall identify whether a disclosed expert is 25 percipient, retained, or both. It will be assumed that a party 26 designating a retained expert has acquired the express permission 27 of the witness to be so listed. 28 /// 3 1 Parties designating percipient experts must state in the 2 designation who is responsible for arranging the deposition of 3 such persons. 4 All experts designated are to be fully prepared at the time 5 of designation to render an informed opinion, and give their 6 bases for their opinion, so that they will be able to give full 7 and complete testimony at any deposition taken by the opposing 8 party. 9 to any information gathered or evaluated, or opinion formed, 10 11 Experts will not be permitted to testify at the trial as after deposition taken subsequent to designation. Counsel are instructed to complete all discovery of expert 12 witnesses in a timely manner in order to comply with the Court’s 13 deadline for filing dispositive motions. 14 VI. MOTION HEARING SCHEDULE 15 The last day to hear dispositive motions shall be 16 September 19, 2013. 17 filing deadlines: 18 The parties shall comply with the following Dispositive motion filed at least 8 weeks prior to hearing 20 Opposition and any cross-motion filed at least 5 weeks prior to hearing 21 Reply and opposition to cross-motion filed at least 3 weeks prior to hearing Reply to cross-motion filed at least 1 week prior to hearing 19 22 23 24 25 The parties are directed to the Court’s website for ( ÷ choose Court 26 available hearing dates. 27 Calendar ÷ choose Judge England ÷ choose More Calendaring 28 Information) 4 1 All purely legal issues are to be resolved by timely 2 pretrial motions. Failure to comply with Local Rules 230 and 3 260, as modified by this Order, may be deemed consent to the 4 motion and the Court may dispose of the motion summarily. 5 Further, failure to timely oppose a summary judgment motion2 may 6 result in the granting of that motion if the movant shifts the 7 burden to the nonmovant to demonstrate that a genuine issue of 8 material fact remains for trial. 9 The Court places a page limit for points and authorities 10 (exclusive of exhibits and other supporting documentation) of 11 twenty (20) pages on all initial moving papers, twenty (20) pages 12 on oppositions, and ten (10) pages for replies. 13 page limit increases must be made in writing to the Court setting 14 forth any and all reasons for any increase in page limit at least 15 fourteen (14) days prior to the filing of the motion. All requests for 16 For the Court’s convenience, citations to Supreme Court 17 cases should include parallel citations to the Supreme Court 18 Reporter. 19 The parties are reminded that a motion in limine is a 20 pretrial procedural device designed to address the admissibility 21 of evidence. 22 dispositional motions presented at the Final Pretrial Conference 23 or at trial in the guise of motions in limine. 24 /// 25 /// The Court will look with disfavor upon 26 27 28 2 The Court urges any party that contemplates bringing a motion for summary judgment or who must oppose a motion for summary judgment to review Local Rule 260. 5 1 The parties are cautioned that failure to raise a 2 dispositive legal issue that could have been tendered to the 3 court by proper pretrial motion prior to the dispositive motion 4 cut-off date may constitute waiver of such issue. 5 VII. FINAL PRETRIAL CONFERENCE 6 The Final Pretrial Conference is set for November 14, 2013, 7 at 2:00 p.m. 8 trial for each of the parties shall attend the Final Pretrial 9 Conference. At least one of the attorneys who will conduct the If by reason of illness or other unavoidable 10 circumstance a trial attorney is unable to attend, the attorney 11 who attends in place of the trial attorney shall have equal 12 familiarity with the case and equal authorization to make 13 commitments on behalf of the client. 14 Counsel for all parties are to be fully prepared for trial 15 at the time of the Final Pretrial Conference, with no matters 16 remaining to be accomplished except production of witnesses for 17 oral testimony. The parties shall file, not later than October 24, 2013, a 18 19 Joint Final Pretrial Conference Statement. The provisions of 20 Local Rules 281 shall apply with respect to the matters to be 21 included in the Joint Final Pretrial Conference Statement. 22 addition to those subjects listed in Local Rule 281(b), the 23 parties are to provide the Court with a plain, concise statement 24 that identifies every non-discovery motion tendered to the Court 25 and its resolution. 26 modified by this Pretrial Scheduling Order, may be grounds for 27 sanctions. 28 /// In Failure to comply with Local Rule 281, as 6 1 At the time of filing the Joint Final Pretrial Conference 2 Statement, counsel shall also electronically mail to the Court in 3 digital format compatible with Microsoft Word or WordPerfect, the 4 Joint Final Pretrial Conference Statement in its entirety 5 including the witness and exhibit lists. 6 be sent to: 7 These documents shall The parties should identify first the core undisputed facts 8 relevant to all claims. The parties should then, in a concise 9 manner, identify those undisputed core facts that are relevant to 10 each claim. 11 manner. 12 disputed facts are properly before the Court for trial, they 13 should nevertheless list all disputed facts asserted by each 14 party. 15 separately numbered or lettered. 16 The disputed facts should be identified in the same Where the parties are unable to agree as to what Each disputed fact or undisputed fact should be Each party shall identify and concisely list each disputed 17 evidentiary issue which will be the subject of a motion in 18 limine. 19 Each party shall identify the points of law which concisely 20 describe the legal issues of the trial which will be discussed in 21 the parties’ respective trial briefs. 22 reflect issues derived from the core undisputed and disputed 23 facts. 24 any point of law. 25 Points of law should Parties shall not include argument or authorities with The parties shall prepare a joint statement of the case in 26 plain concise language which will be read to the jury at the 27 beginning of the trial. 28 inform the jury what the case is about. The purpose of the joint statement is to 7 1 The parties are reminded that pursuant to Local Rule 281 2 they are required to list in the Joint Final Pretrial Conference 3 Statement all witnesses and exhibits they propose to offer at 4 trial. 5 a brief statement of the nature of the testimony to be proffered. 6 The parties may file a joint list or each party may file separate 7 lists. 8 Joint Final Pretrial Conference Statement itself, but shall be 9 attached as separate documents to be used as addenda to the Final 10 11 After the name of each witness, each party shall provide These list(s) shall not be contained in the body of the Pretrial Order. Plaintiff’s exhibits shall be listed numerically. 12 Defendants’ exhibits shall be listed alphabetically. The parties 13 shall use the standard exhibit stickers provided by the Court 14 Clerk’s Office: pink for plaintiff and blue for defendant. 15 the event that the alphabet is exhausted, the exhibits shall be 16 marked “AA-ZZ” and “AAA-ZZZ” etc. 17 number of letters in parenthesis (i.e., “AAAA(4)”) to reduce 18 confusion at trial. 19 otherwise fastened together and each page within the exhibit 20 shall be numbered. 21 The list of exhibits shall not include excerpts of depositions, 22 which may be used to impeach witnesses. 23 Plaintiff and Defendants offer the same exhibit during trial, 24 that exhibit shall be referred to by the designation the exhibit 25 is first identified. 26 attention to this detail so that all concerned, including the 27 jury, will not be confused by one exhibit being identified with 28 both a number and a letter. In After three letters, note the All multi-page exhibits shall be stapled or All photographs shall be marked individually. In the event that The Court cautions the parties to pay 8 1 The Final Pretrial Order will contain a stringent standard 2 for the offering at trial of witnesses and exhibits not listed in 3 the Final Pretrial Order, and the parties are cautioned that the 4 standard will be strictly applied. 5 listing of exhibits or witnesses that a party does not intend to 6 offer will be viewed as an abuse of the court’s processes. 7 On the other hand, the The parties also are reminded that pursuant to Rule 16 of 8 the Federal Rules of Civil Procedure it will be their duty at the 9 Final Pretrial Conference to aid the Court in: (a) the 10 formulation and simplification of issues and the elimination of 11 frivolous claims or defenses; (b) the settling of facts that 12 should properly be admitted; and (c) the avoidance of unnecessary 13 proof and cumulative evidence. 14 prepare the Joint Final Pretrial Conference Statement and 15 participate in good faith at the Final Pretrial Conference with 16 these aims in mind. 17 imposition of sanctions which may include monetary sanctions, 18 orders precluding proof, elimination of claims or defenses, or 19 such other sanctions as the Court deems appropriate. Counsel must cooperatively A failure to do so may result in the 20 VIII. TRIAL BRIEFS 21 The parties shall file trial briefs not later than 22 October 31, 2013. 23 regarding the content of trial briefs. Counsel are directed to Local Rule 285 24 IX. EVIDENTIARY AND/OR PROCEDURAL MOTIONS 25 Any evidentiary or procedural motions are to be filed by 26 October 24, 2013. Oppositions must be filed by October 31, 2013, 27 and any reply must be filed by November 7, 2013. 28 /// 9 1 The motions will be heard by the Court at the same time as the 2 Final Pretrial Conference. 3 X. TRIAL SETTING 4 The trial is set for January 13, 2014, at 9:00 a.m. Trial The panel will consist of seven (7) jurors. 5 will be by jury. 6 The parties estimate a trial length of eight (8) days. 7 XI. 8 At the Final Pretrial Conference, the Court may set a 9 SETTLEMENT CONFERENCE settlement conference if the parties so request. In the event no 10 settlement conference is requested, the parties are free to 11 continue to mediate or attempt to settle the case with the 12 understanding that the trial date is a firm date. 13 In the event a settlement conference is set by the Court, 14 counsel are instructed to have a principal with full settlement 15 authority present at the Settlement Conference or to be fully 16 authorized to settle the matter on any terms. 17 calendar days before the settlement conference, counsel for each 18 party shall submit to the chambers of the settlement judge a 19 confidential Settlement Conference Statement. 20 are neither to be filed with the Clerk nor served on opposing 21 counsel. 22 parties that the statement has been submitted. 23 judge is not the trial judge, the Settlement Conference Statement 24 shall not be disclosed to the trial judge. 25 At least seven (7) Such statements Each party, however, shall serve notice on all other If the settlement Notwithstanding the foregoing, the parties may request a 26 settlement conference prior to the Final Pretrial Conference if 27 they feel it would lead to the possible resolution of the case. 28 In the event an early settlement conference date is requested, 10 1 the parties shall file said request jointly, in writing. 2 request must state whether the parties waive disqualification, 3 pursuant to Local Rule 270(b), before a settlement judge can be 4 assigned to the case. 5 requesting that the assigned Judge or Magistrate Judge 6 participate in the settlement conference AND waiver, pursuant to 7 Local Rule 270(b), a settlement judge will be randomly assigned 8 to the case. 9 The Absent the parties’ affirmatively XII. VOLUNTARY DISPUTE RESOLUTION PROGRAM 10 Pursuant to Local Rule 271 parties will need to lodge a 11 stipulation and proposed order requesting referral to the 12 Voluntary Dispute Resolution Program. 13 XIII. MODIFICATION OF PRETRIAL SCHEDULING ORDER 14 The parties are reminded that pursuant to Rule 16(b) of the 15 Federal Rules of Civil Procedure, the Pretrial Scheduling Order 16 shall not be modified except by leave of court upon a showing of 17 good cause. 18 alone to modify the Pretrial Scheduling Order does not constitute 19 good cause. 20 unavailability of witnesses or counsel will not constitute good 21 cause. 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// Agreement by the parties pursuant to stipulation Except in extraordinary circumstances, 11 1 XIV. OBJECTIONS TO PRETRIAL SCHEDULING ORDER 2 This Pretrial Scheduling Order will become final without 3 further order of the Court unless objections are filed within 4 seven (7) court days of service of this Order. 5 6 IT IS SO ORDERED. Dated: May 21, 2012 7 8 9 _____________________________ MORRISON C. ENGLAND, JR. UNITED STATES DISTRICT JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 12

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