Freeman et al v. Costa et al

Filing 124

ORDER Concerning Plaintiff's 10/22/12 email correspondence and Motions Docketed at 120 and 121 , by Judge John L. Kane on 10/23/12. (sgrim)

UNITED STATES DISTRICT COURT
DISTRICT OF COLORADO
Judge John L. Kane
Civil Action No. 1:10-cv-644-JLK-MJW

SHANNON FREEMAN, as Personal Representative of BRYANT HANNA, a child, and
STEPHANIE HANNA, as representative of the estate of ROBERT HANNA, deceased
Plaintiffs,
v.
GREGORY COSTA, PA-C,
Defendant.
_________________________________________________________________________________
ORDER CONCERNING Plaintiff’s 10/22/12 email correspondence and Motions Docketed
at 120 and 121.

Kane, J.
In Plaintiffs’ MOTION to Strike 114 Witness List First Amended by Defendant (Doc.
120), Plaintiffs express irritation that Defendant’s pretrial witness list is divided into may-call
and only a single will-call witness. As the issue of witness lists was discussed and ruled upon at
the Pretrial Conference held on October 16, 2012, however, I am denying the motion as MOOT.
Per my Order of October 16, 2012, Defendant must provide a list to the Court and to opposing
counsel specifying both the order in which defenses witnesses are to be called and also which
witnesses from Defendant’s initially proffered list are reasonably expected to be actually called.
In other words, to the fullest extent possible, Defendant must re-evaluate his earlier submission
such that Plaintiffs are not left guessing whether and if more than a single witness is expected to
testify in Defendant’s case in chief.
In Plaintiffs’ second recently filed motion, MOTION for Ruling on 116 Proposed Pretrial
Order Proposed Statement of the Case and Revised Jury Instructions and Verdict Forms (Doc.

121), Plaintiffs take issue with Defendant's new proposals concerning the statement of the case,
certain stipulated facts, and certain jury instructions.
Turning first to the matter of stipulations, I note Plaintiffs, in addition to protesting
Defendant’s Proposed Revised Pretrial Order stipulations, have voiced confusion as to what
stipulations submitted prior to the Pretrial conference were approved at the October 16, 2012,
trial preparation conference (Doc. 122). To clarify, the approved stipulations are those contained
in the parties’ UNOPPOSED motions, Docs. 99 and 102. Plaintiffs’ objections to Defendant’s
eleventh hour attempt to rewrite and withdraw these stipulations in a Proposed “Revised” Pretrial
Order (Doc. 116) are sustained. Plaintiffs are entitled to rely on the stipulations previously
agreed to between counsel and approved by the Court in the Pretrial Order (Doc. 90), and these
are reaffirmed.
In contrast, I find Plaintiffs’ objection to Defendant’s new proposed statement of the case
a bit overwrought. Defendant does not misrepresent Plaintiffs’ claims and Defendant’s version is
direct and more precise than the lengthy statement set forth in the Pretrial Order. The statement
of the case jury instruction will hew to Defendant’s proposed in Doc. 116 and Plaintiffs’
proposed in Doc. 121.
Next Plaintiffs express concern that Defendant's revision stating "none" on page 4 of
Doc. 116 was an attempt to renege on his agreement regarding applicable Statutes and
Regulations. I do not read the notation that way, but in any event find the statutes and
regulations laid out in the Pretrial Order applicable and will instruct the jury accordingly.
Regarding voire dire, counsel may use the New Jersey Model Jury Selection Questions
for Medical Malpractice Cases submitted by Plaintiffs except for Questions 8, 9, 11, or 12. If
Question 6 is used, please omit reference to “or caps or limits on jury verdicts or awards.”

The Court’s revised draft of the jury instructions to be used in this case will be filed via
CM/ECF in the next day or two. Counsel will be afforded an opportunity to make a record
regarding any objections or proposed modifications before the instructions are finalized for the
jury.

Dated: October 23nd, 2012
/s/ John L. Kane
Senior U.S. District Judge