Heineman et al v. American Home Products Corporation et al
TRIAL PREPARATION ORDER - CIVIL by Chief Judge Marcia S. Krieger on 9/18/14. (msksec, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Chief Judge Marcia S. Krieger
Civil Action No. 13-cv-02070-MSK-CBS
JENNIFER HEINEMAN; and
ERIC ALLEN HEINEMAN,
AMERICAN HOME PRODUCTS CORPORATION;
WYETH-AYERST PHARMACEUTICALS, INC;
WYETH-AYERST INTERNATIONAL, INC.; and
WYETH-AYERST LABORATORIES DIVISION OF AMERICAN HOME PRODUCTS
TRIAL PREPARATION ORDER
This Order sets deadlines, imposes requirements that supplement the Scheduling Order
and imposes trial preparation requirements.
A. Applicable Rules
This proceeding is subject to the Federal Rules of Civil Procedure, the Federal Rules of
Evidence, the Local Rules of Practice for the United States District Court for the District of
Colorado and the MSK Civ. Practice Standards. A copy of the Practice Standards is available
from the Clerk’s office or can be downloaded from the Court’s website at
http://www.cod.uscourts.gov/Home.aspx under Judicial Officers' Procedures. Parties who are
not represented by counsel (pro se) are responsible for knowledge of and compliance with all
applicable rules and provisions of this Order. References in this Order to “counsel” apply to
parties appearing pro se.
If a party to this case is incarcerated, it is the responsibility of that party to provide a copy
of this Order and all other orders issued in this case to his or her Case Manager. For purposes of
attending a scheduled hearing by telephone, the Case Manager should contact the Courtroom
Deputy Clerk, Patricia Glover at (303)335-2185 at least two business days prior to the hearing to
make the necessary arrangements for the inmate to participate.
B. Dispositive and Rule 702 Motions
The deadline in the Scheduling Order for the filing of dispositive motions shall also be
the deadline for parties to file motions challenging the foundational requirements of opinion
testimony under Fed. R. Evid. 702. If the dispositive motion deadline is changed, the Rule 702
motion deadline automatically changes to match it.
The format for dispositive motions is set out in MSK Civ. Practice Standard V.H, found
at http://www.cod.uscourts.gov/Home.aspx. The format for Rule 702 motions is also found at
http://www.cod.uscourts.gov/Home.aspx. Failure to use the appropriate format may result in a
delayed ruling on the motion. If determination of a Rule 702 motion is required for
determination of a dispositive motion, please so state in the title of the Rule 702 motion.
Requests for modification of deadlines set by the Scheduling Order will be referred
to the Magistrate Judge for resolution. However, any request to extend the dispositive
motion deadline more than 30 days beyond the deadline originally set in the initial
Scheduling Order must show exceptional circumstances warranting the extension.
If the dispositive motion deadline passes without dispositive motions being filed, the
parties shall contact Chambers within 10 days of the dispositive motion deadline to request the
setting of a Final Pretrial Conference. Failure to contact Chambers within this time may result in
the case being dismissed for failure to prosecute.
C. Final Pretrial Conference and Trial Setting
The Court will not set a Final Pretrial Conference at this time. A Final Pretrial
Conference will be scheduled once dispositive motions are determined, or upon the request of
the parties should no dispositive motions be filed.
The Court will set a date for trial at the conclusion of the Final Pretrial Conference. It is
the Court’s intention that the trial date will be as soon as 30 days after the Final Pretrial
Conference, or as quickly thereafter as the Court’s calendar makes possible. The parties should
be prepared to advise the Court as to the minimum number of days needed for trial.
Trial counsel shall appear at the Final Pretrial Conference and shall be prepared to
address their own availability and the availability of necessary witnesses. If two or more counsel
represent one party, please be prepared to proceed with one counsel if the other has a conflict, or
to explain why the available counsel cannot proceed alone. All parties to the action shall be
physically present at the Final Pretrial Conference; failure of a party to appear will result in a
order that that party obtain a full, expedited transcript of the Conference at that party’s expense.
Where a party is an organization, the client representative who will appear at trial on behalf of
that organization shall be present.
Jury trials usually begin on Monday afternoons at 1:00 p.m. and bench trials usually
begin on Tuesday mornings at 9:00 a.m. With approximately six hours available per trial day,
one week jury trials usually allow for 22 hours of in-court time, which includes presentation of
evidence, opening and closing statements, and argument on evidentiary objections and trial
motions. (This calculation excludes time for jury selection, charging conference and initial and
concluding instructions for the jury.) One week bench trials usually allow for 24 hours for
presentation of all evidence, opening and closing statements, objections, and arguments. Absent
objections made at the Final Pre-Trial Conference, a chess clock will be used to divide trial time
equally between Plaintiff(s) and Defendant(s). Parties can use their time as they choose, and are
free to restructure time between themselves.
Any problems in the trial setting or special needs for witness scheduling should be
addressed at the Final Pretrial Conference. Designated witnesses should be available during the
entire trial period. Their unavailability may not constitute a basis for delay in or continuance of
the trial. Counsel should always have a sufficient number of witnesses available to testify such
that recesses or early adjournments of the trial day will not be necessary. If witnesses are not
available, lost time may be counted against the party whose case is being presented.
At the time fixed for trial, all parties shall be present and ready to proceed. If any party is
absent or unprepared to proceed, judgment may be entered forthwith in favor of the opposing
party or the time of unavailability credited against the party’s share of the trial time. If both
parties are absent or unprepared, the case may be dismissed, and costs, fees, or sanctions may be
imposed against either or both parties and/or their counsel.
D. Proposed Final Pretrial Order
Counsel shall meet and confer sufficiently in advance of the Final Pretrial Conference to
jointly prepare a Proposed Final Pretrial Order. The parties shall file the Proposed Final Pretrial
Order, proposed jury instructions, and proposed voir dire questions at least 7 days before the
Except as follows, parties should follow the format and instructions for the Final Pretrial
Order found on the Court’s website, http://www.cod.uscourts.gov/Forms.aspx, with the
Section 3: Claims and Defenses – (Parties are encouraged to omit a narrative summary
of the claims, defenses, facts, and legal theories. If a party includes a narrative summary, such
summary should not exceed one page in length.)
Separately enumerate each claim and affirmative defense (i.e. a defense on which the
Defendant bears the burden of proof) to be tried. For each claim and affirmative defense for
which a party has the burden of proof, such party shall designate:
1) the party that has the burden of proof;
2) the standard of proof;
3) if the claim is governed by state law, the state whose law controls the claim; and
4) each element that must be proved. For each element, state whether the necessary facts
are stipulated. If not, the party with the burden of proof shall, separately for each
element, state the particular fact(s) it intends to prove to satisfy that element. For each
fact, list the witness or exhibit that will establish that fact. An example is attached to this
Order. Any claims or affirmative defenses not specifically identified may be deemed
Section 4: Stipulations - One of the purposes of a trial is to determine the facts upon
which the parties cannot agree. However, it is not necessary to present evidence of facts which
are not it dispute. Indeed, it saves the parties time and expense and focuses the trial when parties
identify relevant facts that are not disputed. 1 To assist the jury in understanding the opening
statement and in considering the evidence, such stipulated facts will be included in a jury
instruction given to the jury prior to opening statements.
Please be cognizant of the difference between disputing the existence of a fact and
disputing the significance of that fact. For example, a stipulation to the existence of fact (e.g.
that the sun set at 7:00 p.m. on the day in question) does not prevent the party from arguing as to
FED.R.CIV.P. 11(b)(4) provides guidance as to when a matter is in dispute.
the significance of that fact (e.g. that there was or was not adequate daylight at 7:00 p.m.).
Section 5: Pending motions – In addition to the information required in Appendix G,
identify all motions either party anticipates making prior to trial, including the specific relief to
Section 6: Witnesses – Parties should attach a single, joint list of all witnesses. The
form is found at: http://www.cod.uscourts.gov/Documents/Judges/MSK/msk_witness.pdf.aspx
under Judicial Officers’ Procedures. Please designate the total time needed for the testimony of
each witness (or the time necessary to present deposition testimony). It does not matter what
type of examination will be used to elicit the testimony, nor who will call the witness. The time
calculation is not a limitation on the amount of time that a witness may be examined at trial;
parties may allocate their allotted trial time as they see fit. The estimated duration of testimony
in the Witness List is used solely to ensure that the time set aside for trial is sufficient to receive
the testimony of all expected witnesses.
Section 7: Exhibits – Exhibits should be listed on a single, joint exhibit list using the
form available at http://www.cod.uscourts.gov/Documents/Judges/MSK/msk_exhibit.pdf.aspx
under Judicial Officers’ Procedures. Exhibits should be numbered without designation as
Plaintiff’s or Defendant’s exhibits. Parties may use the same exhibit numbers as used in pretrial
discovery. The provisions of subsection (b) of Appendix G regarding the filing of objections to
exhibits are waived. All objections are reserved for trial.
Hard copies of the exhibits to be used at trial should be put in two notebooks (original
for the witness; copy for the Court). Please only put exhibits you are certain to admit in the
notebooks; exhibits that you might use ( such as those anticipated for impeachment or rebuttal)
can be added to the notebooks during the trial if they are admitted. Exhibit notebooks shall be
given to the Courtroom Deputy Clerk on the first day of trial.
E. Modification of Order
This Order may not be modified by agreement of the parties. However, upon timely,
written application, any party may seek modification as may be necessary to meet a bona fide
emergency, to avoid irreparable injury or harm, or as may otherwise be necessary to do
substantial justice. Extensions of time and continuances will not normally be granted for “press
of other business” or for circumstances that could reasonably have been anticipated.
Failure to comply with the provisions of this Order or the applicable procedural
rules may result in imposition of sanctions including, but not limited to, vacation of the
trial, barring the presentation of evidence, dismissal of claims or defenses, entry of default
or awards of fees and costs in accordance with FED.R.CIV.P. 16 and 37.
DATED this 18th day of September, 2014.
BY THE COURT:
Marcia S. Krieger
Chief United States District Judge
Attachment to Trial Preparation Order
Claim 1: Breach of contract under Colorado law
Plaintiff has burden of proof by a preponderance of the evidence
(1)-(3) offer, acceptance, consideration
(a) the parties stipulate that these elements are satisfied
(4) performance by the plaintiff
(a) On March 3, 2004, Peter Plaintiff delivered one crate of
widgets to Widget Packers, Inc. (Testimony of Peter Plaintiff;
Don Defendant; Exhibits 1, 4)
(b) The widgets conformed to the specifications in the contract.
(Testimony of Peter Plaintiff; Exhibit 2)
(c) The widgets were delivered on the date set by the contract.
(5) non-performance by the defendant
(a) Widget Packers, Inc. failed to remit payment on the terms set
by the contract. (Testimony of Barry Bookkeeper; Exhibit 2)
(b) Peter Plaintiff has made several written demands for payment.
(Peter Plaintiff; Exhibits 3, 5, 7)
(a) Peter Plaintiff has been damaged in the contract amount
of $10,000. (Testimony of Peter Plaintiff; Exhibit 2).
Claim 2: Unjust Enrichment under Colorado law
Plaintiff has burden of proof on all elements by a preponderance of the evidence
(1) Defendant has received a benefit
(a) On March 3, 2004, Peter Plaintiff delivered one crate of
widgets to Widget Packers, Inc. pursuant to a contractual
agreement. (Testimony of Peter Plaintiff; Don Defendant; Exhibits
1, 2, 4).
(2) the benefit is at the Plaintiff’s expense
(a) Widget Packers, Inc. failed to remit payment on the terms set
by the contract. (Testimony of Barry Bookkeeper, Exhibit 2)
(3) justice requires that Defendant reimburse the Plaintiff for the
(a) The widgets have a market value of $15,000. (Testimony of
(b) Don Defendant is in breach of the contract. (Testimony of
Affirmative Defense to Claim 2: Failure to mitigate under Colorado law
Defendant has burden of proof on all elements by a preponderance of the
(1) Plaintiff had a reasonable opportunity to avoid injury
(a) On March 5, 2004, Don Defendant left a message on
Peter Plaintiff’s voice mail offering to return the crate of
widgets unopened. (Testimony of Don Defendant; Peter
(b) On March 8, 2004, Don Defendant wrote to Peter
Plaintiff, offering to assign the contract for the purchase of
widgets to WidgetCo. (Don Defendant; Warren Widget;
(2) Plaintiff unreasonably failed to avail itself of opportunities
to avoid injury
(a) Peter Plaintiff did not respond to the March 5, 2004
message. (Don Defendant)
(b) Peter Plaintiff did not respond to the March 8, 2004
letter. (Don Defendant)
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