Burt v. Berner et al

Filing 259

FINAL PRETRIAL ORDER. Signed by Judge Nancy J. Rosenstengel on 9/14/2017. (jkb2)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
RONALD E. BURT, #N-60788,
Plaintiff,
vs.
S. NWAOBASI, et al.,
Defendants.

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Case No. 3:13-cv-794-NJR-DGW

FINAL PRETRIAL ORDER
ROSENSTENGEL, District Judge:
I.

COUNSEL OF RECORD
Attorneys for Plaintiff:
Ronald A. Norwood, 600 Washington Avenue, Suite 2500, St. Louis, Missouri
63101, [phone], [e-mail]
Benjamin A. Lipman, 600 Washington Avenue, Suite 2500, St. Louis, Missouri
63101, [phone], [e-mail]
Attorneys for Defendants Trost and Nwaobasi:
Timothy P. Dugan, Cassiday Schade LLP, 100 North Broadway, Suite 1580, St.
Louis, Missouri 63102, [phone], [e-mail]
Edward Khatskin, Cassiday Schade LLP, 100 North Broadway, Suite 1580, St.
Louis, Missouri 63102, [phone], [e-mail]
Attorneys for Defendant Alex Jones:
Max Boose, Assistant Attorney General, 500 South Second Street, Springfield,
Illinois 62706, [phone], [e-mail]

Page 1 of 8

II.

NATURE OF THE CASE
Plaintiff, Ronald Burt, alleges the defendants violated his constitutional right to
medical treatment by showing deliberate indifference to his serious medical
needs. Defendants John Trost and Sam Nwaobasi deny Plaintiff had a serious
medical need and that they were deliberately indifferent to it.
Defendant Alex Jones is party to this case in his official capacity only, and
exclusively to perfect such injunctive relief as is ordered by the Court.

III.

SUBJECT MATTER JURISDICTION
This is an action for damages and injunctive relief. The basis for the Court’s
subject matter jurisdiction over Plaintiff’s Constitutional claims is under 28 U.S.C.
§ 1343(a)(3), because this action arises under 42 U.S.C. § 1983 and concerns the
redress of the deprivation of rights provided for by the Constitution of the United
States. The Court’s jurisdiction is also founded upon 28 U.S.C. § 1331 because this
action arises under a federal statute and concerns a federal question. The
existence of subject matter jurisdiction is not contested.

IV.

UNCONTROVERTED FACTS
The following facts are not disputed:
1. Plaintiff was, and is an inmate at Menard Correctional Center continuously
from 2012 to the present.
2. Dr. Nwaobasi was a doctor at Menard Correctional Center from May 4,
2009 to August 2014.
3. Dr. Trost was a Medical Director at Menard Correctional Center from
November 25, 2013 to March 17, 2017.
4. Alex Jones is the Acting Warden of Menard Correctional Center and is
sued in his official capacity only for the purpose of implementing
injunctive relief, if ordered.
The Parties request the Court to convey the facts to the Jury.

V.

CONTROVERTED FACTS
1.

Whether Defendants were deliberately indifferent to Plaintiff’s medical
needs.

VI.

AGREED TO ISSUES OF LAW
The parties have not identified any agreed to issues of law.

VII.

WITNESSES
Plaintiff intends to call the following witnesses:
1.
2.
3.
4.
5.
6.
7.
8.

Ronald Burt
John Trost, M.D.
Sam Nwoabasi, M.D.
Roderick Matticks D.O.
Nickolas Little
Rick Harrington
Frank Petkovich, M.D.
Jacqueline Lashbrook

Plaintiff may call the following witnesses:
1. Angela Crain
2. Lakeisha Hamby
3. Michael Moldenhauer
Defendants John Trost and Sam Nwaobasi intend to call the following witnesses:
1.
2.
3.
4.
5.

Frank Petkovich, M.D.
Ronald Burt
John Trost, M.D.
Sam Nwoabasi, M.D.
Roderick Matticks D.O.

Defendants John Trost and Sam Nwaobasi may call the following witnesses:
1.
2.
3.
4.
5.
6.

Nurse Practitioner Michael Moldenhauer
Nurse Lakesha Hamby
Record Keeper for Menard Correctional Center
Alex Jones (Acting Warden)
Nick Little
Defendant reserves the right to elicit testimony from any witness
Plaintiff identifies in his Rule 26(a)(3) disclosures.

Defendant Alex Jones intends to call the following witnesses:
1. Ronald Burt
2. John Trost, M.D.
3. Samuel Nwaobasi, M.D.
Defendant Alex Jones may call the following witnesses:
1.
2.
3.
4.
5.
6.
7.

Dr. Roderick Matticks
Nick Little
Nurse Practitioner Michael Moldenhauer
Nurse Lakesha Hamby
Record Keeper for Menard Correctional Center
Alex Jones
Additional witnesses stated in Plaintiff’s pretrial disclosures

The Court notes that Plaintiff intends to object to efforts by Defendant Jones to
independently to call any witnesses as he is a party for purposes of injunctive
relief only. Plaintiff has indicated to the Court he understands Defendant Jones
may examine witnesses when called by other parties.
VIII.

EXHIBITS
Plaintiff expects to offer the following documents:
1. Medical records beginning with 1/31/07 (Defendant’s Deposition
Exhibit 1, used in Burt deposition)
2. Report on 10/24/1996 exam of Plaintiff by Dr. Silberstein, Bates No.
MEN 00643
3. Wexford contract with IDOC
4. Wexford utilization management policies
5. Various medical articles and booklets more fully listed in Plaintiff’s
Rule 26(a)(3)(A) disclosure (Doc. 232)
6. Three pages from Dr. Petkovich’s website
Plaintiff may offer the following documents:
1.
2.
3.
4.

Medical records beginning with 1/16/09 (Plaintiff’s Exhibit 2)
Medical records from OneRadiology dated 12/05/12
X-rays of Ronald Burt
Medical records MEN 001498 - MEN01604 (Plaintiff’s Depo. Exh. 2 used in Nwaobasi Deposition)
5. Medication Administration Records

6. Illinois Department of Corrections Offender (IDOC) Outpatient
Progress Notes
7. IDOC x-ray report dated 7/8/09
8. Various pleading and other documents submitted to the Court,
more fully listed in Plaintiff’s Rule 26(a)(3)(A) disclosure (Doc. 232)
7. IDOC Review Board Return of Grievance or Correspondence dated
12/2/13 and 12/16/13
9. Correspondence from IDOC dated 6/24/14
10. Documents from Clinical Services Supervisor and Record Office
Supervisor at Menard Correctional Center received via subpoena
dated 11/27/13
11. IGRV Inmate History
12. IDOC Offender Outpatient Progress Notes dated 12/20/13
13. IDOC Grievance dated 10/23/12
Defendants John Trost, Sam Nwaobasi and Alex Jones expect to offer the
following documents:
1. Medical Records of Plaintiff (produced to Plaintiff on CD
accompanying Dr. Trost’s Interrogatories to Plaintiff on 3/7/17)
2. Additional Plaintiff’s Medical Records (produced to Plaintiff on CD
accompanying Dr. Trost’s Interrogatories to Plaintiff on 3/7/17)
3. Selected Medical Records utilized as the Medical Records Exhibit
Attached to MSJ
4. Plaintiff’s X-ray Film in Possession of Defendants
Defendants John Trost, Sam Nwaobasi and Alex Jones may offer the following
documents:
1. X-ray films and other illustrations of Patients with Scoliosis to be
used as demonstratives
2. X-ray films and other illustrations of Patients with Degenerative
Disk Disease to be used as demonstratives
3. Plaintiff’s ARB Grievance Records
4. Plaintiff’s Grievance Records from Menard Correctional Center
5. Plaintiff’s CHAMPS Summary
6. Plaintiff’s Answers to Dr. Trost’s First Interrogatories Directed to
Plaintiff
7. Plaintiff’s Responses to Defendants’ Requests for Production
Directed to Plaintiff and any attached documents
8. Plaintiff’s Answers to Dr. Nwaobasi’s First Interrogatories Directed
to Plaintiff
9. Plaintiff’s Supplemental Responses to Defendants’ Request for

Production and any attached documents
10. Plaintiff’s Supplemental Responses to Defendants’ Request for
Production
11. Plaintiff’s Deposition Transcript
12. Surveillance Video of Plaintiff’s Deposition
In addition to the provisions of Rule 26, the parties shall prepare an Exhibit List
stating the number and brief description of each exhibit they expect to present at
trial. The Exhibit List must be submitted no later than noon on November 21,
2017, using Judge Rosenstengel’s approved form (a revision of AO Form 187). The
parties may request the template for the approved form by contacting Judge
Rosenstengel’s Courtroom Deputy Clerk, Deana Brinkley, at [phone] or by
email at [e-mail]. Detailed instructions for completing
the Exhibit List are explained in Judge Rosenstengel’s Case Management
Procedures available on the Court’s website, www.ilsd.uscourts.gov.
IX.

DAMAGES
Plaintiff Ronald Burt is seeking $50,000 in compensatory damages for the physical
harm caused and $50,000 for pain and suffering, together with injunctive relief
requiring he be (1) seen by a specialist for his neck and back, (2) be provided an
MRI of his neck and back and such other diagnostic testing as is needed or
appropriate to diagnose the cause of his problems, (3) be provided proper pain
medication and (4) receive any additional treatment the specialist or other doctors
deem proper or shown to be proper based on the results of the MRI or other
diagnostic testing.

X.

BIFURCATED TRIAL
The parties do not request a bifurcated trial.

XI.

TRIAL BRIEFS
The parties do not intend to file a trial brief.

XII.

MOTIONS IN LIMINE
Pending before the court are the following motions: (1) Motion In Limine to
Exclude Evidence Relating to Plaintiff’s Arrests and Convictions filed by Plaintiff
(Doc. 224); (2) Motion In Limine to Bar Reference to Plaintiff’s Conduct Violations
or Disciplinary History While Incarcerated filed by Plaintiff (Doc. 225); (3) Motion
In Limine to Exclude Non-Party Witnesses from the Courtroom During Trial filed
by plaintiff (Doc. 226); (4) Motion In Limine (addressing multiple issues too
numerous to list here) filed by Defendants John Trost, and Sam Nwaobasi (Doc.
227), and a Supplemental Motion in Limine filed by Defendants (Doc. 242).
Defendant Jones has joined in all of the Motions in Limine filed by Dr. Trost and
Dr. Nwaosabi.
The Court anticipates addressing these motions on the first day of trial, prior to
voir dire. The parties should come prepared to argue the pending motions
succinctly.

XIII.

JURY INSTRUCTIONS
Proposed jury instructions should be provided in Microsoft Word format by
email to [e-mail] no later noon on Tuesday, November 21, 2017.

Each instruction should be marked to designate the party offering the instruction
(e.g., “Plaintiff’s Instruction No. 1” or “Parties Agreed Instruction No. 1”) and the source
of the instruction (e.g., “Seventh Circuit Pattern Instruction No. 1.01”). Plaintiff is
primarily responsible for the burden of proof instructions, the damage instructions, the
verdict instructions, and the verdict forms. Defendant is primarily responsible for the
cautionary instructions. The parties should work together in an effort to produce one set
of proposed instructions. If the parties are unable to agree on certain instructions, each
party may submit a version of the contested instructions. The Court will compile a
packet of proposed final instructions and give the instructions to the parties during trial
before a formal jury instruction conference is held.

XIV.

OTHER MATTERS
A.
B.
C.
D.
E.

Trial Date. This matter is set for JURY TRIAL to begin on Tuesday,
November 28, 2017. Counsel should arrive no later than 8:30 a.m.
Length of Trial: The probable length of trial is four days.
Location of Trial: Trial shall be conducted in East St. Louis.
Number of Jurors: There shall be a minimum of six jurors; the Court
intends to impanel eight jurors.
Voir Dire: The Court will conduct preliminary voir dire. Additional

follow-up questions shall be permitted by counsel. The Court will provide
the parties with the jury questionnaires completed by the venire.
IT IS ORDERED that the Final Pretrial Order may be modified at the trial of the
action or before to prevent manifest injustice or for good cause shown. Such
modification may be made either on application of counsel for the parties or on motion
of the Court.
IT IS SO ORDERED.
DATED: September 14, 2017
_____________________________
NANCY J. ROSENSTENGEL
United States District Judge