Matthews et al v. Medical Hill Rehab Center L.L.C. et al

Filing 9

ORDER SCHEDULING JURY TRIAL AND PRETRIAL MATTERS. Signed by Magistrate Judge Bernard Zimmerman on 4/18/2011. (bzsec, COURT STAFF) (Filed on 4/18/2011)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

NORTHERN DISTRICT OF CALIFORNIA

10
11
12
13
14
15
16
17
18

MONIQUE MATTHEWS, an
Individual; GABRIEL OGHWE,
an Individual; CYNTHIA
JOYNER, an Individual,

)
)
)
)
)
Plaintiff(s),
)
)
v.
)
)
MEDICAL HILL REHAB CENTER, )
LLC, a Corporation, KINDRED )
HEALTHCARE OPERATING, INC., )
a Corporation,
)
)
Defendant(s).
)
)

No. C10-4371 BZ
ORDER SCHEDULING
JURY TRIAL AND
PRETRIAL MATTERS

19
20

Following the Case Management Conference, IT IS HEREBY

21

ORDERED that the Case Management Statement is adopted, except

22

as expressly modified by this Order.

23

that:

24

1.

25

Trial Date: Monday, 2/13/2012, 8:30 a.m., 20 days

26

Pretrial Conference: Tuesday, 1/24/2012, 4:00 p.m.

27

Last Day for Damages Expert Discovery: 12/23/2011

28

Last Day for Rebuttal Damages Expert Disclosure: 12/19/2011

IT IS FURTHER ORDERED

DATES

1

1

Last Day for Damages Expert Disclosure: 12/14/2011

2

Last Day to Hear Dispositive Motions: 12/7/2011

3

Last Day for Non-Damages Expert Discovery: 11/28/2011

4

Last Day for Rebuttal Non-Damages Expert Disclosure: 10/21/2011

5

Last Day for Non-Damages Expert Disclosure: 10/14/2011

6

Close of Non-Expert Discovery: 10/7/2011

7

2.

8
9

DISCLOSURE AND DISCOVERY
The parties are reminded that a failure to voluntarily

disclose information pursuant to Federal Rule of Civil

10

Procedure 26(a) or to supplement disclosures or discovery

11

responses pursuant to Rule 26(e) may result in exclusionary

12

sanctions.

13

discovery, lead counsel for each party shall serve and file a

14

certification that all supplementation has been completed.

Thirty days prior to the close of non-expert

15

In the event a discovery dispute arises, lead counsel for

16

each party shall meet in person or, if counsel are outside the

17

Bay Area, by telephone and make a good faith effort to resolve

18

their dispute.

19

the dispute is insufficient.

20

subsequent positioning letters; parties shall instead make a

21

contemporaneous record of their meeting using a tape recorder

22

or a court reporter.

23

Exchanging letters or telephone messages about
The Court does not read

In the event they cannot resolve their dispute, the

24

parties must participate in a telephone conference with the

25

Court before filing any discovery motions or other papers.

26

The party seeking discovery shall request a conference in a

27

letter filed electronically not exceeding two pages (with no

28

attachments) which briefly explains the nature of the action
2

1

and the issues in dispute.

2

similar fashion within two days of receiving the letter

3

requesting the conference.

4

to schedule the conference.

5

3.

6

Other parties shall reply in

The Court will contact the parties

MOTIONS
Consult Civil Local Rules 7-1 through 7-5 and this

7

Court’s standing orders regarding motion practice.

Motions

8

for summary judgment shall be accompanied by a statement of

9

the material facts not in dispute supported by citations to

10

admissible evidence.

11

of undisputed facts where possible.

12

to reach complete agreement after meeting and conferring, they

13

shall file a joint statement of the undisputed facts about

14

which they do agree.

15

statement of the additional facts that the party contends are

16

undisputed.

17

contends that a fact is in dispute is subject to sanctions.

18

The parties shall file a joint statement
If the parties are unable

Any party may then file a separate

A party who without substantial justification

In addition to lodging a Chambers copy of all papers, a

19

copy of all briefs shall be e-mailed in WordPerfect or Word

20

format to the following address: [e-mail].

21

4.

ADR
This matter is referred to the ADR Department to schedule

22
23

a mediation to be conducted within 90 days, if possible.

24

parties shall promptly notify the Court whether the case is

25

resolved at mediation.

26

5.

27
28

The

PRETRIAL CONFERENCE
Not less than thirty days prior to the date of the

pretrial conference, the parties shall meet and take all steps
3

1
2

necessary to fulfill the requirements of this Order.
Not less than twenty-one days prior to the pretrial

3

conference, the parties shall: (1) serve and file a joint

4

pretrial statement, containing the information listed in

5

Attachment 1, and a proposed pretrial order; (2) serve and

6

file trial briefs, Daubert motions, motions in limine, and

7

statements designating excerpts from discovery that will be

8

offered at trial (specifying the witness and page and line

9

references); (3) exchange exhibits, agree on and number a

10

joint set of exhibits and number separately those exhibits to

11

which the parties cannot agree; (4) deliver all marked trial

12

exhibits directly to the courtroom clerk, Ms. Yiu; (5) deliver

13

one extra set of all marked exhibits directly to Chambers; and

14

(6) submit all exhibits in three-ring binders no wider than

15

three inches.

16

label as contained in Attachment 2.

17

be separated with correctly marked side tabs so that they are

18

easy to find.

19

Each exhibit shall be marked with an exhibit
The exhibits shall also

No party shall be permitted to call any witness or offer

20

any exhibit in its case in chief that is not disclosed at

21

pretrial, without leave of Court and for good cause.

22

Lead trial counsel for each party shall meet and confer

23

in an effort to resolve all disputes regarding anticipated

24

testimony, witnesses and exhibits.

25

motions in limine, and objections will be heard at the

26

pretrial conference.

27

filed and served not less than eleven days prior to the

28

conference.

All Daubert motions,

Oppositions to any motions shall be

There shall be no replies.
4

Not less than eleven

1

days prior to the pretrial conference, the parties shall serve

2

and file any objections to witnesses or exhibits or to the

3

qualifications of an expert witness.

4

filed five days prior to the conference.

5

replies.

6

Oppositions shall be
There shall be no

Not less than twenty-one days prior to the pretrial

7

conference the parties shall serve and file requested voir

8

dire questions, jury instructions, and forms of verdict.

9

following jury instructions from the Manual of Model Civil

10

Jury Instructions for the Ninth Circuit (2007 ed.) will be

11

given absent objection: 1.1C, 1.2, 1.6-1.14, 1.18, 1.19, 2.11,

12

3.1-3.3.

13

shall submit a joint set of case specific instructions.

14

instructions on which the parties cannot agree may be

15

submitted separately.

16

where possible.

17

full on a separate page with citations to the authority upon

18

which it is based.

19

Ninth Circuit Manual need only contain a citation to that

20

source.

21

from a manual of model instructions must be clearly indicated.

22

In addition, all proposed jury instructions should conform to

23

the format of the Example Jury Instruction attached to this

24

Order.

25

conference, the parties shall serve and file any objections to

26

separately proposed jury instructions.

27
28

Do not submit a copy of these instructions.

The

Counsel
Any

The Ninth Circuit Manual should be used

Each requested instruction shall be typed in

Proposed jury instructions taken from the

Any modifications made to proposed instructions taken

Not less than eleven days prior to the pretrial

Jury instructions that the Court has given in prior cases
may be downloaded from the Northern District website at
5

1

http:\\www.cand.uscourts.gov.

2

the "Judge Information" page for Magistrate Judge Zimmerman).

3

The Court will generally give the same instructions in cases

4

involving similar claims unless a party establishes, with

5

supporting authorities, that the instruction is no longer

6

correct or that a different instruction should be given.

7

instructions generally will be given instead of BAJI

8

instructions.

9

(Instructions are located on

CACI

A copy of all pretrial submissions, except for exhibits,

10

shall be e-mailed in WordPerfect or Word format to the

11

following address: [e-mail]

12

At the time of filing the original with the Clerk's

13

Office, two copies of all documents (but only one copy of the

14

exhibits) shall be delivered directly to Chambers (Room 15-

15

6688).

16

three-hole punched at the side, suitable for insertion into

17

standard, three-ring binders no wider than three inches.

18

Dated: April 18, 2011

Chambers’ copies of all pretrial documents shall be

19
20
21

Bernard Zimmerman
United States Magistrate Judge
G:\BZALL\-BZCASES\MATTHEWS V. MEDICAL HILL\TRIAL SCHEDULING ORDER.wpd

22
23
24
25
26
27
28
6

1

EXAMPLE PROPOSED JURY INSTRUCTION
For Chambers of Magistrate Judge Zimmerman

2
3
4
5
6

A proposed jury instruction should contain the
following elements in the following order: (1) the name of
the party submitting the instruction; (2) the title of the
instruction; (3) the text of the instruction; (4) the
authority for the instruction; (5) blank boxes for the Court
to note whether it gives the instruction, refuses to give
it, or gives it as modified. The following proposed
instruction contains these elements.

7
________’s Proposed Instruction No. _____.
(Party)

8
9

[Title]

10
11
12
13
14

[Text]

15
16
17
18
19
20
21
22
23

[Authority]

24
25

GIVEN

REFUSED

GIVEN AS MODIFIED

26
27
28
7

1
2

ATTACHMENT 1
The parties shall file a joint pretrial conference
statement containing the following information:

3
(1) The Action.
4
(A)

Substance of the Action. A
brief description of the
substance of claims and
defenses which remain to be
decided.

(B)

Relief Prayed. A detailed
statement of each party's
position on the relief
claimed, particularly
itemizing all elements of
damages claimed as well as
witnesses, documents or other
evidentiary material to be
presented concerning the
amount of those damages.

5
6
7
8
9
10
11
12
13

(2) The Factual Basis of the Action.
(A)

Undisputed Facts. A plain and
concise statement of all
relevant facts not reasonably
disputable, as well as which
facts parties will stipulate
for incorporation into the
trial record without the
necessity of supporting
testimony or exhibits.

(B)

Disputed Factual Issues. A
plain and concise statement of
all disputed factual issues
which remain to be decided.

(C)

Agreed Statement. A statement
assessing whether all or part
of the action may be presented
upon an agreed statement of
facts.

(D)

14

Stipulations. A statement of
stipulations requested or
proposed for pretrial or trial
purposes.

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

(3) Trial Preparation.

28

A brief description of the efforts the parties have
8

1

made to resolve disputes over anticipated testimony,
exhibits and witnesses.

2
(A)

Witnesses to be Called. In
lieu of FRCP 26(a)(3)(A), a
list of all witnesses likely
to be called at trial, other
than solely for impeachment or
rebuttal, together with a
brief statement following each
name describing the substance
of the testimony to be given.

(B)

Estimate of Trial Time. An
estimate of the number of
court days needed for the
presentation of each party's
case, indicating possible
reductions in time through
proposed stipulations, agreed
statements of facts, or
expedited means of presenting
testimony and exhibits.

(C)

Use of Discovery Responses. In
lieu of FRCP 26(a)(3)(B), cite
possible presentation at trial
of evidence, other than solely
for impeachment or rebuttal,
through use of excerpts from
depositions, from
interrogatory answers, or from
responses to requests for
admission. Counsel shall
state any objections to use of
these materials and that
counsel has conferred
respecting such objections.

(D)

Further Discovery or Motions.
A statement of all remaining
motions, including Daubert
motions.

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

(4) Trial Alternatives and Options.
(A)

Settlement Discussion. A
statement summarizing the
status of settlement
negotiations and indicating
whether further negotiations
are likely to be productive.

27
28

9

1

(B)

Amendments, Dismissals. A
statement of requested or
proposed amendments to
pleadings or dismissals of
parties, claims or defenses.

(C)

Bifurcation, Separate Trial of
Issues. A statement of whether
bifurcation or a separate
trial of specific issues is
feasible and desired.

2
3
4
5
6
7
8
9

(5) Miscellaneous.
Any other subjects relevant to the trial of the action,
or material to its just, speedy and inexpensive
determination.

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
10

ATTACHMENT 2

1

3

USDC
Case No. CV10-4371 BZ
JOINT Exhibit No.

USDC
Case No. CV10-4371 BZ
JOINT Exhibit No.

4

Date Entered

Date Entered

5

Signature

Signature

6

USDC
Case No. CV10-4371 BZ
JOINT Exhibit No.

USDC
Case No. CV10-4371 BZ
JOINT Exhibit No.

8

Date Entered

Date Entered

9

Signature

Signature

12

USDC
Case No. CV10-4371 BZ
PLNTF Exhibit No.

USDC
Case No. CV10-4371 BZ
PLNTF Exhibit No.

13

Date Entered

Date Entered

14

Signature

Signature

15

USDC
Case No. CV10-4371 BZ
PLNTF Exhibit No.

USDC
Case No. CV10-1739 BZ
PLNTF Exhibit No.

17

Date Entered

Date Entered

18

Signature

Signature

21

USDC
Case No. CV10-4371 BZ
DEFT Exhibit No.

USDC
Case No. CV10-4371 BZ
DEFT Exhibit No.

22

Date Entered

Date Entered

23

Signature

Signature

24

USDC
Case No. CV10-4371 BZ
DEFT Exhibit No.

USDC
Case No. CV10-4371 BZ
DEFT Exhibit No.

Date Entered
Signature

Date Entered
Signature

2

7

10
11

16

19
20

25
26
27
28

11