Loskot v. MD Imaging, Inc. et al

Filing 10

PRETRIAL SCHEDULING ORDER signed by District Judge Troy L. Nunley on 7/5/13: Designation of Expert Witnesses due by 5/30/2014. Discovery due by 3/31/2014. Dispositive Motions filed by 9/25/2014. Final Pretrial Conference set for 11/20/2014 at 02:00 PM in Courtroom 2 (TLN) before District Judge Troy L. Nunley. Jury Trial set for 2/2/2015 at 09:00 AM in Courtroom 2 (TLN) before District Judge Troy L. Nunley. (Kaminski, H) .

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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MARSHALL LOSKOT,

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No. 2:13-cv-0361-TLN-KJN

Plaintiff,
PRETRIAL SCHEDULING ORDER

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v.
MD IMAGING, INC., a
California Professional
Medical Corporation, PHOTON
INVESTMENTS, LLC., a
California Limited Liability
Company,

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Defendants.
___________________________/

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After reviewing the parties’ Joint Status Report, the Court
makes the following Pretrial Scheduling Order.

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I.

SERVICE OF PROCESS

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All named Defendants have been served and no further service

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is permitted without leave of court, good cause having been

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shown.

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II.

ADDITIONAL PARTIES/AMENDMENTS/PLEADINGS

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No joinder of parties or amendments to pleadings is

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permitted without leave of court, good cause having been shown.

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III. JURISDICTION/VENUE

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Jurisdiction is predicated upon 28 U.S.C. § 1331.

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Jurisdiction and venue are not contested.

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IV.

DISCOVERY

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All discovery, with the exception of expert discovery, shall

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be completed by March 31, 2014.

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means that all discovery shall have been conducted so that all

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depositions have been taken and any disputes relative to

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discovery shall have been resolved by appropriate order if

In this context, “completed”

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necessary and, where discovery has been ordered, the order has

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been obeyed.

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the magistrate judge’s calendar in accordance with the local

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rules of this Court.

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All motions to compel discovery must be noticed on

Any request to deviate from the Federal Rules of Civil
Procedure should be made to the assigned Magistrate Judge.

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V.

DISCLOSURE OF EXPERT WITNESSES

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All counsel are to designate in writing, file with the

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Court, and serve upon all other parties the name, address, and

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area of expertise of each expert that they propose to tender at

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trial not later than May 30, 2014.1

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accompanied by a written report prepared and signed by the

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witness.

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26(a)(2)(B).

The designation shall be

The report shall comply with Fed. R. Civ. P.

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Within twenty (20) days after the designation of expert

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witnesses, any party may designate a supplemental list of expert

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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.
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witnesses who will express an opinion on a subject covered by an

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expert designated by an adverse party.

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The right to designate a supplemental expert for rebuttal

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purposes only shall apply to a party who has not previously

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disclosed an expert witness on the date set for expert witness

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disclosure by this Pretrial Scheduling Order.

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Failure of a party to comply with the disclosure schedule as

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set forth above in all likelihood will preclude that party from

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calling the expert witness at the time of trial.

An expert

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witness not appearing on the designation will not be permitted to

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testify unless the party offering the witness demonstrates:

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(a) that the necessity for the witness could not have been

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reasonably anticipated at the time the list was proffered;

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(b) that the Court and opposing counsel were promptly notified

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upon discovery of the witness; and (c) that the witness was

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promptly made available for deposition.

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For purposes of this Pretrial Scheduling Order, an “expert”

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is any person who my be used at trial to present evidence under

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Rules 702, 703, and 705 of the Federal Rules of Evidence, which

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include both “percipient experts” (persons who, because of their

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expertise, have rendered expert opinions in the normal course of

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their work duties or observations pertinent to the issues in the

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case) and “retained experts” (persons specifically designated by

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a party to be a testifying expert for the purposes of

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litigation).

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Each party shall identify whether a disclosed expert is

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percipient, retained, or both.

It will be assumed that a party

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designating a retained expert has acquired the express permission
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of the witness to be so listed.
Parties designating percipient experts must state in the

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designation who is responsible for arranging the deposition of

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such persons.

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All experts designated are to be fully prepared at the time

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of designation to render an informed opinion, and give their

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bases for their opinion, so that they will be able to give full

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and complete testimony at any deposition taken by the opposing

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party.

Experts will not be permitted to testify at the trial as

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to any information gathered or evaluated, or opinion formed,

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after deposition taken subsequent to designation.

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Counsel are instructed to complete all discovery of expert

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witnesses in a timely manner in order to comply with the Court’s

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deadline for filing dispositive motions.

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VI.

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The last day to hear dispositive motions shall be September

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25, 2014.

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MOTION HEARING SCHEDULE

deadlines:

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The parties shall comply with the following filing

Dispositive motion

filed at least 8 weeks
prior to hearing

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Opposition and any
cross-motion

filed at least 5 weeks
prior to hearing

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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

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All purely legal issues are to be resolved by timely

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pretrial motions.

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260, as modified by this Order, may be deemed consent to the

Failure to comply with Local Rules 230 and

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motion and the Court may dispose of the motion summarily.

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Further, failure to timely oppose a summary judgment motion2 may

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result in the granting of that motion if the movant shifts the

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burden to the nonmovant to demonstrate that a genuine issue of

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material fact remains for trial.

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The Court places a page limit for points and authorities

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(exclusive of exhibits and other supporting documentation) of

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twenty (20) pages on all initial moving papers, twenty (20) pages

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on oppositions, and ten (10) pages for replies.

All requests for

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page limit increases must be made in writing to the Court setting

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forth any and all reasons for any increase in page limit at least

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fourteen (14) days prior to the filing of the motion.

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For the Court’s convenience, citations to Supreme Court

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cases should include parallel citations to the Supreme Court

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Reporter.

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The parties are reminded that a motion in limine is a

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pretrial procedural device designed to address the admissibility

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of evidence.

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dispositional motions presented at the Final Pretrial Conference

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or at trial in the guise of motions in limine.

The Court will look with disfavor upon

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The parties are cautioned that failure to raise a

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dispositive legal issue that could have been tendered to the

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court by proper pretrial motion prior to the dispositive motion

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cut-off date may constitute waiver of such issue.

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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.
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VII. FINAL PRETRIAL CONFERENCE

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The Final Pretrial Conference is set for November 20, 2014,

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at 2:00 p.m.

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trial for each of the parties shall attend the Final Pretrial

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Conference.

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circumstance a trial attorney is unable to attend, the attorney

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who attends in place of the trial attorney shall have equal

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familiarity with the case and equal authorization to make

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commitments on behalf of the client.

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At least one of the attorneys who will conduct the

If by reason of illness or other unavoidable

Counsel for all parties are to be fully prepared for trial

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at the time of the Final Pretrial Conference, with no matters

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remaining to be accomplished except production of witnesses for

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oral testimony.
The parties shall file, not later than October 23, 2014, a

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Joint Final Pretrial Conference Statement.

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Local Rules 281 shall apply with respect to the matters to be

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included in the Joint Final Pretrial Conference Statement.

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addition to those subjects listed in Local Rule 281(b), the

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parties are to provide the Court with a plain, concise statement

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that identifies every non-discovery motion tendered to the Court

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and its resolution.

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modified by this Pretrial Scheduling Order, may be grounds for

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sanctions.

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The provisions of

In

Failure to comply with Local Rule 281, as

At the time of filing the Joint Final Pretrial Conference

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Statement, counsel shall also electronically mail to the Court in

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digital format compatible with Microsoft Word or WordPerfect, the

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Joint Final Pretrial Conference Statement in its entirety

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including the witness and exhibit lists.

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These documents shall

be sent to: [e-mail].

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The parties should identify first the core undisputed facts

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relevant to all claims.

The parties should then, in a concise

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manner, identify those undisputed core facts that are relevant to

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each claim.

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manner.

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disputed facts are properly before the Court for trial, they

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should nevertheless list all disputed facts asserted by each

The disputed facts should be identified in the same

Where the parties are unable to agree as to what

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party.

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separately numbered or lettered.

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Each disputed fact or undisputed fact should be

Each party shall identify and concisely list each disputed

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evidentiary issue which will be the subject of a motion in

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limine.

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Each party shall identify the points of law which concisely

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describe the legal issues of the trial which will be discussed in

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the parties’ respective trial briefs.

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reflect issues derived from the core undisputed and disputed

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facts.

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any point of law.

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Points of law should

Parties shall not include argument or authorities with

The parties shall prepare a joint statement of the case in

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plain concise language which will be read to the jury at the

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beginning of the trial.

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inform the jury what the case is about.

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The purpose of the joint statement is to

The parties are reminded that pursuant to Local Rule 281

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they are required to list in the Joint Final Pretrial Conference

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Statement all witnesses and exhibits they propose to offer at

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trial.

After the name of each witness, each party shall provide
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a brief statement of the nature of the testimony to be proffered.

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The parties may file a joint list or each party may file separate

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lists.

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Joint Final Pretrial Conference Statement itself, but shall be

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attached as separate documents to be used as addenda to the Final

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Pretrial Order.

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These list(s) shall not be contained in the body of the

Plaintiff’s exhibits shall be listed numerically.

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Defendants’ exhibits shall be listed alphabetically.

The parties

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shall use the standard exhibit stickers provided by the Court

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Clerk’s Office: pink for plaintiff and blue for defendant.

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the event that the alphabet is exhausted, the exhibits shall be

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marked “AA-ZZ” and “AAA-ZZZ” etc.

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number of letters in parenthesis (i.e., “AAAA(4)”) to reduce

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confusion at trial.

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otherwise fastened together and each page within the exhibit

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shall be numbered.

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The list of exhibits shall not include excerpts of depositions,

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which may be used to impeach witnesses.

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Plaintiff and Defendants offer the same exhibit during trial,

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that exhibit shall be referred to by the designation the exhibit

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is first identified.

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attention to this detail so that all concerned, including the

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jury, will not be confused by one exhibit being identified with

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both a number and a letter.

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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

The Final Pretrial Order will contain a stringent standard

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for the offering at trial of witnesses and exhibits not listed in

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the Final Pretrial Order, and the parties are cautioned that the

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standard will be strictly applied.
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On the other hand, the

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listing of exhibits or witnesses that a party does not intend to

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offer will be viewed as an abuse of the court’s processes.

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The parties also are reminded that pursuant to Rule 16 of

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the Federal Rules of Civil Procedure it will be their duty at the

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Final Pretrial Conference to aid the Court in: (a) the

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formulation and simplification of issues and the elimination of

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frivolous claims or defenses; (b) the settling of facts that

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should properly be admitted; and (c) the avoidance of unnecessary

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proof and cumulative evidence.

Counsel must cooperatively

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prepare the Joint Final Pretrial Conference Statement and

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participate in good faith at the Final Pretrial Conference with

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these aims in mind.

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imposition of sanctions which may include monetary sanctions,

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orders precluding proof, elimination of claims or defenses, or

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such other sanctions as the Court deems appropriate.

A failure to do so may result in the

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VIII.

TRIAL BRIEFS

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The parties shall file trial briefs not later than November

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6, 2014.

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content of trial briefs.

Counsel are directed to Local Rule 285 regarding the

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IX.

EVIDENTIARY AND/OR PROCEDURAL MOTIONS

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Any evidentiary or procedural motions are to be filed by

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October 30, 2014.

Oppositions must be filed by November 6, 2014,

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and any reply must be filed by November 13, 2014.

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will be heard by the Court at the same time as the Final Pretrial

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Conference.

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The motions

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X.

TRIAL SETTING

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The trial is set for February 2, 2015, at 9:00 a.m.

Trial

The panel will consist of eight (8) jurors.

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will be by jury.

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The parties estimate a trial length of four to five (4-5) days.

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XI.

SETTLEMENT CONFERENCE

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At the Final Pretrial Conference, the Court may set a

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settlement conference if the parties so request.

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settlement conference is requested, the parties are free to

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continue to mediate or attempt to settle the case with the

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In the event no

understanding that the trial date is a firm date.
In the event a settlement conference is set by the Court,

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counsel are instructed to have a principal with full settlement

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authority present at the Settlement Conference or to be fully

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authorized to settle the matter on any terms.

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calendar days before the settlement conference, counsel for each

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party shall submit to the chambers of the settlement judge a

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confidential Settlement Conference Statement.

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are neither to be filed with the Clerk nor served on opposing

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counsel.

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parties that the statement has been submitted.

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judge is not the trial judge, the Settlement Conference Statement

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shall not be disclosed to the trial judge.

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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

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settlement conference prior to the Final Pretrial Conference if

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they feel it would lead to the possible resolution of the case.

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In the event an early settlement conference date is requested,

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the parties shall file said request jointly, in writing.

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request must state whether the parties waive disqualification,
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The

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pursuant to Local Rule 270(b), before a settlement judge can be

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assigned to the case.

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requesting that the assigned Judge or Magistrate Judge

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participate in the settlement conference AND waiver, pursuant to

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Local Rule 270(b), a settlement judge will be randomly assigned

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to the case.

Absent the parties’ affirmatively

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XII. VOLUNTARY DISPUTE RESOLUTION PROGRAM

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Pursuant to Local Rule 271 parties will need to lodge a

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stipulation and proposed order requesting referral to the
Voluntary Dispute Resolution Program.

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XIII.

MODIFICATION OF PRETRIAL SCHEDULING ORDER

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The parties are reminded that pursuant to Rule 16(b) of the

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Federal Rules of Civil Procedure, the Pretrial Scheduling Order

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shall not be modified except by leave of court upon a showing of

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good cause.

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alone to modify the Pretrial Scheduling Order does not constitute

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good cause.

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unavailability of witnesses or counsel will not constitute good

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cause.

Agreement by the parties pursuant to stipulation

Except in extraordinary circumstances,

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XIV. OBJECTIONS TO PRETRIAL SCHEDULING ORDER

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This Pretrial Scheduling Order will become final without

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further order of the Court unless objections are filed within

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seven (7) court days of service of this Order.

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IT IS SO ORDERED.
DATED: July 5, 2013

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Troy L. Nunley
United States District Judge

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