Mammen et al v. County of Sacramento et al

Filing 116

AMENDED PRETRIAL CONFERENCE ORDER signed by District Judge John A. Mendez on 4/24/18. Trial briefs may be E-filed with the court no later than 5/14/18. The joint set of jury instructions shall be lodged on or before 5/14/18. In limine motions shall be E-filed separately on or before 5/11/18. Opposition briefs shall be E-filed on or before 5/16/18. A Settlement Conference is SET for 5/3/2018 at 09:00 AM in Courtroom 26 (AC) before Magistrate Judge Allison Claire. Trial will commence on or about 5/21/2018, at 9:00 AM in Courtroom (6) (JAM) before District Judge John A. Mendez. The parties estimate six (6) to seven (7) court days for trial. (Kastilahn, A)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA

10
11
12
13
14
15
16
17
18
19

A.P. (a minor); ROBIN MAMMEN and )
LARRY MAMMEN individually and as )
Guardian ad Litem for A.P.,
)
)
Plaintiffs,
)
)
v.
)
)
COMMUNITY CARE LICENSING, COUNTY )
OF SACRAMENTO, STEPHANIE LYNCH, )
LUIS VILLA; MICHELLE CALLEJAS,
)
DEBRA WILLIAMS, CRAIG LARKIN,
)
RENAE RODOCKER,
)
)
Defendants.
)

Case No. 2:13-cv-01588 JAM-AC
AMENDED PRETRIAL
CONFERENCE ORDER

Pursuant to court order, a Pretrial Conference was held on

20

April 13, 2018 before Judge John Mendez.

21

as counsel for plaintiffs; Amanda L. McDermott appeared as counsel

22

for defendants.

23

by the parties, the Court makes the following amended findings and

24

orders:

After hearing and submission of additional papers

I. JURISDICTION/VENUE

25
26

Jay T. Jambeck appeared

Jurisdiction is predicated upon 28 U.S.C. §§ 1331 and 1341,

27

and has previously been found to be proper by order of this court,

28

as has venue.

Those orders are confirmed.
1

1
2

II. JURY/NON-JURY
Both parties have demanded a jury trial.

3

III. STATEMENT TO BE READ TO JURY

4

Seven (7) days prior to trial the parties shall E-file a joint

5

statement of the case that may be read to the jury at the beginning

6

of jury selection.

7

IV. UNDISPUTED FACTS

8

1.

Anthony is an individual with a disability.

9

2.

Anthony has been diagnosed with autistic disorder and

10

mental retardation.

11

3.

The time period at issue begins in September of 2011.

12

4.

Anthony was four years old in September of 2011.

13

5.

In 2009, Anthony was adjudged a dependent of Sacramento

14

County.

15

6.

As a dependent minor, the Sacramento County Department of

16

Health and Human Services through the Child Protective Services

17

(CPS) division was responsible for determining a plan for permanent

18

placement of Anthony and was responsible for his care, safety, and

19

well-being.

20

7.

21

family.

22

8.

23
24
25
26
27
28

In November of 2009, Anthony was placed with the Mammen

Anthony began occupation therapy with Candice Hawkins in

April of 2011.
9.

Sometime in late August or early September of 2011,

Anthony’s dependency case transferred to the CPS Adoptions Unit.
10.

Anthony’s dependency case was in the CPS Adoptions Unit

during the time period at issue.
11.

During the relevant period, Renae Rodocker was a social
2

1

worker in the CPS Adoptions Unit.

2
3

12.

On or around September 8, 2011, Renae Rodocker was

assigned to Anthony’s dependency case.

4

13.

During the relevant period, Debra Williams was a

5

Supervisor in the CPS Adoptions Unit and acted as a Supervisor to

6

Renae Rodocker.

7
8

14.

Manager at CPS, wherein she oversaw the Adoptions Unit.

9
10

During the relevant period, Stephanie Lynch was a Program

15.

During the relevant period, Luis Villa was a Division

Manager at CPS, wherein he oversaw the Adoptions Unit.

11

16.

On or around October 31, 2012, Anthony's adoption by

12

Robin and Larry Mammen was finalized. As of that date, he was no

13

longer a dependent of Sacramento County.

14
15

17.
law.

16
17
18

County employees were at all times acting under color of

V. DISPUTED FACTUAL ISSUES
A.

Plaintiffs’ Disputed Issues of Fact:
1.

Whether A.P.’s disabling condition was ameliorated by the

19

wrapping intervention and the other interventions on the sensory

20

diet.

21

2.

22

to A.P.

23

3.

24
25
26
27
28

Whether the County denied other therapeutic interventions

Whether the County employees retaliated against A.P. and

Larry and Robin Mammen.
4.

Whether A.P. was a safety risk when appropriate

interventions were not provided to him.
5.

Whether A.P. suffered physical and emotional harm as a

result of the failure to allow recommended interventions.
3

1
2

6.

Whether Larry and Robin Mammen suffered emotional harm as

a result of the retaliation by County employees

3

7.

Whether individual Defendants were deliberately

4

indifferent to the self-harm that A.P. inflicts without appropriate

5

sensory interventions.

6

8.

Whether the County intervened in the provision of A.P.'s

7

OT services without due consideration or an adequate assessment of

8

the nature of the therapeutic techniques, their objective and

9

purpose, and the safety risks.

10
11

9.

without sufficient basis.

12
13

10.

Whether the County characterized the technique as neglect

without sufficient basis.

14
15

Whether the County characterized the technique as abuse

11.

Whether the County and/or its employees violated the

following statutes:

16

a.

42 U.S.C. § 1983;

17

b.

42 U.S.C. § Section 12203(b);

18

c.

California Government Code Section 815.2.

19
20

B.

Defendants’ Disputed Issues of Fact:
1.

Whether Renae Rodocker, Debra Williams, Stephanie Lynch,

21

or some other County employee instructed Robin and Larry Mammen to

22

cease any and all wrapping or restraining of A.P., and when that

23

instruction occurred.

24

2.

Whether the County stated at a juvenile court hearing,

25

attended by Robin Mammen and her counsel, on October 6, 2011, that

26

the only limitation placed on A.P.’s sensory diet by CPS was as to

27

the use of the wrapping technique.

28

3.

Whether Renae Rodocker, Debra Williams, or Stephanie
4

1

Lynch instructed Robin or Larry Mammen not to use any of the

2

sensory diet techniques.

3

4.

Whether Renae Rodocker, Debra Williams, or Stephanie

4

Lynch prevented A.P. from access to treatment modalities other than

5

those on the sensory diet.

6

5.

Whether A.P. faced a substantial risk of harm if not able

7

to use the sensory diet techniques other than the wrapping

8

technique.

9

6.

Whether Renae Rodocker, Debra Williams, or Stephanie

10

Lynch knew that A.P. faced a substantial risk of harm if not able

11

to use the sensory diet techniques other than the wrapping

12

technique.

13

7.

Whether Renae Rodocker, Debra Williams, or Stephanie

14

Lynch were deliberately indifferent to a substantial risk of harm

15

faced by A.P. if not able to use the sensory diet techniques other

16

than the wrapping technique.

17

8.

Whether Renae Rodocker, Debra Williams, or Stephanie

18

Lynch knew that A.P. faced a substantial risk of harm if not able

19

to use treatment modalities other than those on the sensory diet.

20

9.

Whether Renae Rodocker, Debra Williams, or Stephanie

21

Lynch were deliberately indifferent to a substantial risk of harm

22

faced by A.P. if not able to use treatment modalities other than

23

those on the sensory diet.

24
25
26

10.

Whether A.P. was harmed because he was not able to use

the sensory diet techniques other than the wrapping technique.
11.

The period of time, if any, for which A.P. was prevented

27

from using the sensory diet techniques other than the wrapping

28

technique.
5

1

12.

Whether A.P. was harmed because he was not able to use

2

other treatment modalities recommended by his occupational

3

therapist.

4

13.

The period of time, if any, for which A.P. was prevented

5

from using other treatment modalities recommended by his

6

occupational therapist.

7

14.

Whether the County incorporates the provisions of the

8

California Department of Social Services (“DSS”) Manuals into its

9

own policies and procedures and requires its social workers to

10
11

follow the provisions of those manuals.
15.

Whether the policies, procedures, and practices, of the

12

County of Sacramento prohibit use of any kind of restraint,

13

holding, or wrapping technique on a dependent minor.

14

16.

Whether Renae Rodocker, Debra Williams, or Stephanie

15

Lynch investigated the techniques and protocols in the sensory

16

diet.

17

17.

Whether Renae Rodocker, Debra Williams, Stephanie Lynch,

18

or Luis Villa were negligent, and whether that negligence resulted

19

in harm to A.P.

20
21
22

18.

Whether Renae Rodocker, Debra Williams, Stephanie Lynch,

or Luis Villa are entitled to discretionary immunity.
19.

Whether any County employee coerced, intimidated,

23

threatened, or interfered with Robin or Larry Mammen in their

24

exercise of any ADA protected activity.

25

20.

Whether Robin or Larry Mammen were harmed or injured by

26

any coercion, intimidation, threats, or interference by any County

27

employee.

28

21.

Whether the State of California Community Care Licensing
6

1

division issued a citation to the Mammens for violating A.P.’s

2

personal rights based on their use of the wrapping technique on

3

A.P.

4
5

22.

Whether the Mammens verbally agreed to cease use of the

wrapping technique on A.P.

6

23.

Whether the County determined that the verbal agreement

7

made by the Mammens that they would not utilize the wrapping

8

technique on A.P. was sufficient to no longer require a signed

9

Corrective Action Plan.

10

24.

Whether County policies and state regulations require the

11

reporting of possible violations of state regulations to the State

12

of California Community Care Licensing division.

13

25.

Whether A.P. is entitled to an award of punitive damages

14

against Renae Rodocker, Debra Williams, Stephanie Lynch, or Luis

15

Villa.

16

26.

Whether A.P. is entitled to compensatory damages.

17

27.

Whether Robin or Larry Mammen are entitled to

18

compensatory damages.

19

VI. DISPUTED EVIDENTIARY ISSUES

20

1.

Plaintiff disputes the relevance or admissibility of

21

testimony by Defendant’s expert witness and may file a motion in

22

limine as to that issue.

23

2.

Plaintiff disputes the relevance or admissibility of any

24

allegations that the Mammens are using any of their children for

25

money or “selling diapers” as claimed by CPS and anticipates filing

26

a motion in limine in that regard.

27

///

28

///
7

1
2
3
4
5

Defendants anticipate motions in limine on the following
subjects:
1.

The relevancy and/or admissibility of the Disability

Compliance Office report and their findings and conclusions.
2.

Testimony by Robin and/or Larry Mammen regarding the

6

proximate cause of any emotional distress or physical injury

7

suffered by A.P.

8
9
10

3.

Evidence and/or argument that the County of Sacramento

may indemnify individual defendants.
4.

Evidence and/or argument that the County of Sacramento

11

and/or any of its employees violated A.P.’s constitutional or

12

statutory rights in preventing the use of the wrapping technique on

13

A.P. as that issue was already determined as a matter of law on

14

summary judgment.

15

5.

Evidence and/or argument that pertain to the dismissed

16

claims for relief for ADA Discrimination or violations of the

17

Rehabilitation Act or the Unruh Act.

18
19
20
21
22

6.

Evidence and/or argument regarding compensatory damages

suffered by Robin or Larry Mammen.
7.

Evidence and/or argument regarding physical injury and/or

emotional distress suffered by A.P.
8.

Evidence and/or argument that A.P.’s disability,

23

condition, or behaviors were improved by use of the wrapping

24

technique, the other techniques/protocols on the sensory diet, or

25

other treatments allegedly prevented or delayed by CPS.

26

9.

Evidence and/or argument that A.P.’s disability,

27

condition, or behaviors regressed or worsened by not having use of

28

the wrapping technique, the other techniques/protocols on the
8

1

sensory diet, or other treatments allegedly prevented or delayed by

2

CPS.

3
4

VII. RELIEF SOUGHT
Plaintiff A.P. seeks general damages.

Plaintiffs Larry and

5

Robin Mammen seek general damages for retaliation.

6

seeks punitive damages.

7
8

Defendants seek judgment in their favor, as well as fees and
costs.

9
10

Plaintiff also

VIII. POINTS OF LAW
Trial briefs may be E-filed with the court no later than May

11

14, 2018.

Any points of law not previously argued to the Court

12

should be briefed in the trial briefs.

13
14

IX. ABANDONED ISSUES
In addition to the claims that were dismissed by the Court in

15

its ruling on summary judgment (ECF No. 101), plaintiffs also

16

abandon the Monell liability cause of action (First claim).

17

Defendants have not abandoned any affirmative defenses.

18

X. WITNESSES

19

Plaintiffs anticipate calling the following witnesses:

20

1.

Robbin Mammen

21

2.

Larry Mammen

22

3.

Dr. Anubha Khanna

23

4.

Dr. Ashutosh Raina

24

5.

Dr. Paula Solomon

25

6.

Denise Henderson

26

7.

Cheryl Bennett

27

8.

Candice Hawkins

28

9.

Renae Rodocker
9

1

10.

Jeanine Lopez

2

11.

Tim Foley

3

12.

Dr. Jessica Litwin

4

13.

Dr. Mark Foster

5

14.

Dr. Elysa Marcos

6

Defendants anticipate calling the following witnesses:

7

Non-expert Witnesses:

8

1.

Renae Rodocker

9

2.

Debra Williams

10

3.

Stephanie Lynch

11

4.

Luis Villa

12

5.

Jeannine Lopez

13

6.

Michelle Callejas

14

7.

Joseph Sison, M.D.

15

8.

Candice Hawkins

16

9.

Jennifer Bloom

17

10.

Dana Peters

18

11.

Reynaldo Carboni

19

12.

Leon Geoff (“Jeff”) Wells

20

13.

Jason Lindo

21

14.

Dana Sarmiento

22

Expert Witnesses:

23

1.

Sharrell Blakeley

24

2.

Renae Rodocker

25

3.

Debra Williams

26

4.

Stephanie Lynch

27

5.

Luis Villa

28

Each party may call a witness designated by the other.
10

1

A.

2

No other witnesses will be permitted to testify unless:
(1)

The party offering the witness demonstrates that the

3

witness is for the purpose of rebutting evidence which could not be

4

reasonably anticipated at the Pretrial Conference, or

5

(2)

The witness was discovered after the Pretrial

6

Conference and the proffering party makes the showing required in

7

"B" below.

8
9

B.

Upon the post-Pretrial discovery of witnesses, the

attorney shall promptly inform the court and opposing parties of

10

the existence of the unlisted witnesses so that the court may

11

consider at trial whether the witnesses shall be permitted to

12

testify.

13
14

(1)

(2)

(3)

If time permitted, counsel proffered the witnesses

for deposition;

19
20

The court and opposing counsel were promptly

notified upon discovery of the witnesses;

17
18

The witnesses could not reasonably have been

discovered prior to Pretrial;

15
16

The evidence will not be permitted unless:

(4)

If time did not permit, a reasonable summary of the

witnesses' testimony was provided opposing counsel.

21

XI. EXHIBITS, SCHEDULES AND SUMMARIES

22

Plaintiffs intend to introduce the following exhibits:

23

1.

24

Confidential Investigation Report and attachments dated

2/28/12;

25

2.

Occupational Therapy Initial Evaluation;

26

3.

Child and Adolescent Psychiatric Services Clinic Short

27
28

Term Assessment dated September 2011;
4.

Selection and Implementation Report dated 12/15/11;
11

1

5.

Letter from Dr. Anubha Khanna dated September 1, 2011;

2

6.

Amended ADA Grievance dated September 4, 2011;

3

7.

Sensory diet letter dated September 12, 2011;

4

8.

Email from Robin Mammen dated September 12, 2011;

5

9.

Letter from Dr. Anubha Khanna dated September 13, 2011;

6

10.

Letter from Dr. Ashutosh Raina dated September 14, 2011;

7

11.

Corrective Action plan dated February 2012;

8

12.

Email dated October 13, 2011 from Stephanie Lynch;

9

13.

Email from Rodocker dated November 2, 2011;

10

14.

Email from Rodocker dated February 28, 2012;

11

15.

ADA Grievance Sign-in Sheet dated November 15, 2011;

12

16.

Letter from Luis Villa dated November 22, 2011;

13

17.

Email from Luis Villa dated December 9, 2011;

14

18.

Email from Robin Mammen dated December 2, 2011;

15

19.

CPS Log note 9/19/2011;

16

20.

CPS log note 10/7/2011;

17

21.

Deep Pressure Proprioceptive Technique;

18

22.

Report of Dr. Paula Solomon;

19

23.

Email from Laura Dunkleberger dated September 12, 2011;

20

24.

Email from Robin Mammen Dated September 19, 2011;

21

25.

Email from Laura Dunkleberger dated September 22, 2011;

22

26.

Email from Robin Mammen dated September 22, 2011;

23

27.

Email from Robin Mammen dated September 28, 2011;

24

28.

Email from Debra Williams dated September 14, 2011;

25

29.

Email from Rodocker dated September 19, 2011;

26

30.

A day in the life of A.P.;

27

31.

Email from Lopez dated September 22, 2011;

28

32.

Email from Denise Henderson dated September 22, 2011;
12

1

33.

Email from Jennine Lopez dated October 12, 2011;

2

34.

Email from Henderson dated November 6, 2011;

3

35.

Email from Rodocker dated November 9, 2011;

4

36.

Email thread dated November 10, 2011 re: proprioceptive

5

input summary;

6

37.

7

Email from Bennett dated November 10, 2011 and

attachment;

8

38.

Email from Williams dated November 16, 2011;

9

39.

Email thread dated December 2, 2011 re: A.P.;

10

40.

Email from Robin Mammen dated December 29, 2011;

11

41.

Email from Robin Mammen dated December 30, 2011;

12

42.

Email thread from Stephanie Lynch dated January 5, 2012;

13

43.

Email from Robin Mammen dated January 26, 2012;

14

44.

Email from Robin Mammen dated February 14, 2012;

15

45.

Email from Henderson dated March 27, 2012;

16

46.

Rebuttal exhibits; and

17

47.

Impeachment exhibits.

18

Defendants intend to introduce the following exhibits:

19

A.

20

CPS Delivered Service Logs 2/26/09 – 10/13/12 [COS 2141-

2291];

21

B.

Sensory Diet dated 9/12/11 [COS 1926-28];

22

C.

Juvenile Court transcript dated 10/6/2011 [COS 4924-39];

23

D.

Juvenile Court transcript dated 10/27/2011 [COS 4940-55];

24

E.

Initial Assessment Evaluation by OT Hawkins [PLTF 65-69];

25

F.

Progress Report by OT Hawkins dated 7/18/11 [Hawkins Ex

G.

OT Progress Report dated 10/21/11 [Hawkins Ex 12];

26

3];

27
28

///
13

1
2

H.

[Hawkins Ex 5];

3
4

Correspondence from Candice Hawkins dated 10/28/11

I.

Correspondence between Hawkins and Rodocker in Nov. 2011

[COS 3577-80];

5

J.

OT Progress Report dated 1/6/12 [COS 3910-12];

6

K.

Sensory Diet dated November 14, 2011 [Hawkins Ex 12];

7

L.

OT Progress Report dated 1/8/14 [Hawkins Ex 12];

8

M.

CCL Investigation Report [COS 2056-57];

9

N.

Correspondence by Luis Villa 11/22/11 [PLTF 96-97];

10

O.

Corrective Action Plan dated 2/17/12 [COS 982-983];

11

P.

Corrective Action Plan dated 3/1/12 [COS 970];

12

Q.

Joseph Sison email to Luis Villa dated 4/10/12 [COS

13

2049];

14

R.

CPS Division Wide Social Worker Standards [COS 1865-67];

15

S.

Adoptions Social Worker Standards [COS 1902-07];

16

T.

Emergency Response Social Worker Standards [COS 1868-76];

17

U.

CPS Handbook 405-1 Legal Mandates [COS 4741-45];

18

V.

CPS Handbook 405-2 Assessing the Child and Determining

19

the Necessary Level [COS 4751-61];

20
21

W.

[COS 4769-71];

22
23

X.

Y.

28

CPS Handbook 425-1.1 Disclosure of Child's Medical and

Psychosocial [COS 4839-45];

26
27

CPS Handbook 405-8 Identifying and Reporting Concerns in

Out of Home Placement [COS 4772-75];

24
25

CPS Handbook 405-7 Multi-Ethnic Placement Act (MEPA-IEP)

Z.

CPS Handbook 420-9 Assessing FCL Regulations [COS 4956-

AA.

Unconventional Treatments Memo [COS 4965-66];

64];

14

1

BB.

Mental Health Practice Guidelines Memo [COS 4967-68];

2

CC.

Mental Health Practice Guidelines [COS 4969-70];

3

DD.

Division 31 Sections 300-400 [COS 4876-4923];

4

EE.

ER Referral 9/9/11 [COS 2130-34];

5

FF.

Email from Mammen to Rodocker re Rx change 9/14/11 [COS

6
7
8

1932];
GG.

AP Medical Records re: approval of Rx change (Lexipro)

[PLTF 568];

9

HH.

Application regarding Rx [COS 1130-37];

10

II.

Juvenile Court Order re Rx [COS 1125-26];

11

JJ.

Elk Grove Unified IEP Team Amendments Page dated 10/21/11

12
13
14
15
16
17

[COS 3024];
KK.

Email Correspondence between Alta and Rodocker re ISIS

request for cuddle swing dated 1/4/12 [COS 3914];
LL.

ISIS Healthcare Request to Alta Regional for Cuddle Swing

dated 12/29/11 [COS 3913];
MM.

Email correspondence between Robin Mammen, Renae

18

Rodocker, and the Kendall School re use of physical prompts dated

19

2/22/12 - 3/1/12 [COS 4114-18];

20
21
22
23
24
25

NN.

Email re CCL approval of physical prompts dated 3/1/12

[COS 4113];
OO.

Email correspondence re approval of physical prompts

dated 3-1-2012 [COS 2949];
PP.

Email re finalization of Jasmine’s adoption dated 3/20/12

[COS 4180];

26

QQ.

Email correspondence re request for vest dated 4/17-19/12

27

[COS 4317-18];

28

RR.

Email correspondence re vest dated 4/25/12 [COS 4319];
15

1

SS.

ISIS request for vest dated 5/2/12 [COS 4322-23];

2

TT.

Email correspondence with CCL re vest dated 5/17-18/12

3
4
5
6

[COS 4362];
UU.

Email between Robin Mammen and Renae Rodocker dated

5/31/12 [COS 4373];
VV.

California Department of Social Services, Community Care

7

Licensing Division, Manual of Policies and Procedures, Title 22,

8

Div. 6, Ch. 9.5 - Foster Family Homes, Art. 4 - Placement,

9

§ 89475.2 - Postural Supports and Protective Devices, pp. 141-143;

10

WW.

FFA Service Log dated 9/12/11 [COS 3061-63];

11

XX.

FFA Service Log dated 10/12/11 [COS 3432-35];

12

YY.

FFA Service Log dated 11/10/11 [COS 3588-91];

13

ZZ.

FFA Service Log dated 12/11/11 [COS 3681-85];

14

AAA. FFA Service Log dated 1/11/12 [COS 3987-90];

15

BBB. FFA Service Log dated 2/12/12 [COS 4233-36];

16

CCC. FFA Service Log dated 3/12/12 [COS 4238-41];

17

DDD. FFA Service Log dated 4/12/12 [COS 4306-09];

18

EEE. FFA Service Log dated 5/11/12 [COS 4358-61];

19

FFF. FFA Service Log dated 6/11/12 [COS 4396-99];

20

GGG. FFA Service Log dated 7/12/12 [COS 4442-45];

21

HHH. FFA Service Log dated 9/11/12 [COS 4490-93]; and

22

III. FFA Service Log dated 10/11/12 [COS 4525-28]

23

Each party may use an exhibit designated by the other.

24

A.

25

unless:

26

No other exhibits will be permitted to be introduced

(1)

The party proffering the exhibit demonstrates that

27

the exhibit is for the purpose of rebutting evidence which could

28

not be reasonably anticipated at the Pretrial Conference, or
16

1

(2)

The exhibit was discovered after the Pretrial

2

Conference and the proffering party makes the showing required in

3

paragraph "B," below.

4

B.

Upon the post-Pretrial discovery of exhibits, the

5

attorneys shall promptly inform the court and opposing counsel of

6

the existence of such exhibits so that the court may consider at

7

trial their admissibility.

8

unless the proffering party demonstrates:

9
10

(1)

The exhibits could not reasonably have been

discovered prior to Pretrial;

11
12

The exhibits will not be received

(2)

The court and counsel were promptly informed of

their existence;

13

(3)

Counsel forwarded a copy of the exhibit(s) (if

14

physically possible) to opposing counsel.

15

not be copied, the proffering counsel must show that he has made

16

the exhibit(s) reasonably available for inspection by opposing

17

counsel.

18

If the exhibit(s) may

As to each exhibit, each party is ordered to exchange copies

19

of the exhibit not later than fourteen (14) days before trial.

20

Each party is then granted five (5) days to file and serve

21

objections to any of the exhibits.

22

party is to set forth the grounds for the objection.

23

shall pre-mark their respective exhibits in accord with the Court’s

24

Pretrial Order.

Exhibit stickers may be obtained through the

25

Clerk’s Office.

An original and one (1) copy of the exhibits shall

26

be presented to Harry Vine, Deputy Courtroom Clerk, at 8:30 a.m. on

27

the date set for trial or at such earlier time as may be agreed

28

upon.

In making the objection, the
The parties

Mr. Vine can be contacted at [phone] or via e-mail
17

1

at: [e-mail].

2

objected to, it shall be marked and may be received into evidence

3

on motion and will require no further foundation.

4

which is objected to will be marked for identification only.

5
6

As to each exhibit which is not

Each exhibit

XII. DISCOVERY DOCUMENTS
None.

7

XIII. FURTHER DISCOVERY OR MOTIONS

8

Pursuant to the court's Status Conference Order, all discovery

9

and law and motion was to have been conducted so as to be completed

10

as of the date of the Pretrial Conference.

11

confirmed.

12

pursuant to informal agreement.

13

not be enforceable in this court.

The parties are free to do anything they desire

14
15

None.
XV. AMENDMENTS/DISMISSALS
None.

18
19

However, any such agreement will

XIV. STIPULATIONS

16
17

That order is

XVI. FURTHER TRIAL PREPARATION
A.

Counsel are directed to Local Rule 285 regarding the

20

contents of trial briefs.

21

before May 14, 2018.

22

B.

Such briefs should be E-filed on or

Counsel are further directed to confer and to attempt to

23

agree upon a joint set of jury instructions.

24

instructions shall be lodged via ECF with the court clerk on or

25

before May 14, 2018, and shall be identified as the "Jury

26

Instructions Without Objection."

27

there is dispute the parties shall submit the instruction(s) via

28

ECF as its package of proposed jury instructions on or before May
18

The joint set of

As to instructions as to which

1

18, 2018.

2

the “Jury Instructions Without Objection” and should be clearly

3

identified as “Disputed Jury Instructions” on the proposed

4

instructions.

5

This package of proposed instructions should not include

The parties shall e-mail a set of all proposed jury

6

instructions in word format to the Court’s Judicial Assistant, Jane

7

Klingelhoets, at: [e-mail].

8
9

C.

It is the duty of counsel to ensure that a hard copy of

any deposition which is to be used at trial has been lodged with

10

the Clerk of the Court pursuant to Local Rule 133(j).

11

depositions shall be lodged with the court clerk seven (7) calendar

12

days prior to the date of the trial.

13

failure to discharge this duty may result in the court precluding

14

use of the deposition or imposition of such other sanctions as the

15

court deems appropriate.

16

D.

The

Counsel are cautioned that a

The parties are ordered to E-file with the court and

17

exchange between themselves not later than one (1) week before the

18

trial a statement designating portions of depositions intended to

19

be offered or read into evidence (except for portions to be used

20

only for impeachment or rebuttal).

21

E.

The parties are ordered to E-file with the court and

22

exchange between themselves not later than one (1) week before

23

trial the portions of Answers to Interrogatories and/or Requests

24

for Admission which the respective parties intend to offer or read

25

into evidence at the trial (except portions to be used only for

26

impeachment or rebuttal).

27
28

F.

Each party may submit proposed voir dire questions the

party would like the court to put to prospective jurors during jury
19

1

selection.

2

week prior to trial.

3

G.

Proposed voir dire should be submitted via ECF one (1)

Each party may submit a proposed verdict form that the

4

party would like the Court to use in this case.

5

forms should be submitted via ECF one (1) week prior to trial.

6

H.

Proposed verdict

In limine motions shall be E-filed separately on or

7

before May 11, 2018.

Opposition briefs shall be E-filed on or

8

before May 16, 2018.

No reply briefs may be filed.

9

XVII. SETTLEMENT NEGOTIATIONS

10

A formal Settlement Conference before Magistrate Judge Allison

11

Claire is set for May 3, 2018 at 9:00 a.m. in Courtroom 26.

12

party is reminded of the requirement that it be represented in

13

person at the settlement conference by a person with full

14

settlement authority.

15

prior to the conference, the parties are directed to submit

16

confidential settlement conference statements to chambers via email

17

([e-mail]).

18

with the Clerk: however, each party shall e-file a one page

19

document entitled Notice of Submission of Confidential Settlement

20

Conference Statement.

21

other.

22

At least seven (7) days

Such statements shall not be filed

The parties may agree, or not, to serve each

XVIII. AGREED STATEMENTS

23

See paragraph III, supra.

24

XIX. SEPARATE TRIAL OF ISSUES

25

None.

26

XX. IMPARTIAL EXPERTS/LIMITATION OF EXPERTS

27
28

See Local Rule 270.

Each

None.
///
20

1
2

XXI. ATTORNEYS' FEES
The matter of the award of attorneys' fees to prevailing

3

parties pursuant to statute will be handled by motion in accordance

4

with Local Rule 293.

5
6

XXII. MISCELLANEOUS
None.

7
8
9
10

XXIII. ESTIMATE OF TRIAL TIME/TRIAL DATE
The parties estimate six (6) to seven (7) court days for
trial.

Trial will commence on or about May 21, 2018, at 9:00 a.m.

Counsel are to call Harry Vine, Courtroom Deputy, at

11

[phone], one week prior to trial to ascertain the status of

12

the trial date.

13
14

IT IS SO ORDERED.
DATED: April 24, 2018

15
16
17
18
19
20
21
22
23
24
25
26
27
28
21