Rayter v. Crawford Avenue Anesthesia Provider Services LLC et al

Filing 60

MEMORANDUM OF TELEPHONIC SCHEDULING CONFERENCE AND ORDER CONCERNING DISPOSITIVE MOTIONS, PRETRIAL CONFERENCE, AND TRIAL: The deadline for filing of fully-briefed dispositive motions is 6/17/2014. The proposed pretrial order to be filed by 6/16/2015 . Final Pretrial Conference SCHEDULED for 6/23/2015 01:00 PM in US District Court - South Bend before Judge Robert L Miller Jr. Jury Trial SET for 7/13/2015 09:30 AM in US District Court - Hammond before Judge Robert L Miller Jr. Signed by Judge Robert L Miller, Jr on 10/3/2013. (tc)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
MELINDA RAYTER,
PLAINTIFF,
VS.

CRAWFORD AVENUE ANESTHESIA
PROVIDER SERVICES, LLC,
DEFENDANT.

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CAUSE NO. 2:12-CV-75-RLM-APR

MEMORANDUM OF TELEPHONIC SCHEDULING CONFERENCE
and ORDER CONCERNING
DISPOSITIVE MOTIONS, PRETRIAL CONFERENCE, AND TRIAL
A telephonic scheduling conference was held in this case on October 2,
2013. Kristen Caldwell appeared for the plaintiff; Nancy Maldonado appeared
for the defendant.
Following discussion, the court ESTABLISHED the deadline for the filing
of fully-briefed dispositive motions as June 17, 2014. The court DIRECTED
counsel for the plantiff to prepare and file the proposed pretrial order on or
before June 16, 2015, with the exchange of the parties’ contentions and
witness and exhibit lists to be made consistent with Federal Rule of Civil
Procedure 26(a)(3), and SCHEDULED a final pretrial conference for 1:00 p.m.
(Eastern Time) on June 23, 2015 in the third floor South Bend courtroom
and a four-day jury trial to commence at 9:30 a.m. (Central Time) on July
13, 2015 in the Hammond courtroom.
ORDER CONCERNING DISPOSITIVE MOTIONS,
PRETRIAL CONFERENCE, and TRIAL

1.

Dispositive motions.
A.

Deadline for motions. All dispositive motions must be filed by the

deadline set forth above, with summary judgment motions to be filed,
fully-briefed, by the movant by that date.
B.

Procedure. The following procedure with respect to summary

judgment motion practice shall govern in this case:
1.

The parties shall not file summary judgment motions,
responses, memoranda, affidavits, or exhibits until the parties
have completed their briefing of the motion. Upon completion
of the briefing, all papers pertinent to the motion shall be filed
at one time by the movant.

2.

The parties shall accomplish this as follows:
(a) The moving party shall serve the motion, brief, and
supporting documents on all other counsel, and shall file
with the court a simple notice of having done so,
reflecting the date on which the materials were served.
(b) The party or parties opposing the motion shall serve their
response to the motion and supporting documents on
other counsel, and shall file with the court a simple notice
of having done so, reflecting the date on which the
materials were served.
(c) The moving party shall file the foregoing documents,
together with any reply brief also served on opposing
counsel, by the deadline established in the court’s
scheduling order for the filing of dispositive motions.

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3.

Because

the

deadline

for

filing

dispositive

motions

is

established in conjunction with the trial date, the court will
not modify or extend the deadline without good cause.
4.

The district rules establish the following general briefing
schedule for summary judgment motions: the response brief is
due 30 days after service of the motion and supporting brief;
the reply brief is due 15 days after service of the response. The
court’s concern is the deadline for filing the fully-briefed
motion, so counsel are free to agree on any other briefing
schedule and pre-filing deadlines. Counsel are not free to
agree on an extension of the date by which the fullybriefed motion is to be filed. The court urges counsel to
confer about the briefing schedule with an eye toward the
issues to be raised in, and in response to, the motion.

5.

Apart from the provision that summary judgment motions are
not to be filed until briefing is complete and the provision that
counsel may modify the district rules’ general briefing schedule
by agreement, this order does not modify any other provision of
the district rules concerning summary judgment practice,
including the requirements of “Statement of Material Facts”
and “Statement of General Issues” set forth in District Rule
56.1, the page limitations on briefs set forth in District Rule
7.1(d), and the requirement of submitting certain supporting
authorities set forth in District Rule 7.1(e).

C.

Length of briefs. District Rule 7.1 limits briefs to twenty-five pages

(excluding exhibits) without prior leave of court. Relief from this rule will
not be granted unless the request for relief identifies the approximate
anticipated length of the brief proposed to be filed.
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D.

Hearing.

If a hearing is scheduled on the motion, you should

expect the judge to be familiar with the case and the briefs. The judge
usually begins a hearing on a dispositive motion by informing the parties
how he would rule on the motion in the absence of oral argument, and
why. The judge then invites argument directed to the proposed ruling.
2. Trial.
A.

Deadlines.
1. At least 21 days before the final pretrial conference, copies of
all exhibits must be provided to opposing counsel (please note
that this deadline does not involve filings with the court).
2. The following are due at least 14 days before the final pretrial
conference:
(a) any evidentiary objections to another party’s expert
witness [see ¶ C(2)(b)];
(b) the plaintiff=s trial brief [see ¶ D(2)]; and
(c) proposed jury instructions and voir dire questions [see
¶ E(1)], together with submission via e-mail to
chambers [see ¶ E(4)].
3. The following are due at least 7 days before the final pretrial
conference:
(a) opposing parties’ trial briefs [see ¶ D(3)];
(b) objections to proposed jury instructions and voir dire
questions [see ¶ E(2)];
(c) motions in limine [see ¶ G]; and
(d) any supplemental memoranda concerning objections
to portions of depositions [see ¶ H].
4. At least 2 days before the final pretrial conference, counsel
shall file any supplementary trial brief [see ¶ D(4)].
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These deadlines for the pretrial conference are established to
enable the court to conduct the final pretrial conference in an
informed, productive manner. These deadlines may differ from
similar, earlier orders issued by this judge or by other judges of
this court. Many provisions in earlier orders have been removed; a
few others have been added; timing of events differs. The pretrial
deadlines are not meant to be burdensome or to “encourage”
settlement by making trial preparation more difficult. They are
meant to enable the judge to be fully prepared to preside over the
trial of this case.
B.

Purposes of the Final Pretrial Conference.

The court views the pretrial conference as the first day of trial. At the
pretrial conference, the court may:
1. discuss with specificity the substance of the testimony of
witnesses who will testify;
2. discuss potential stipulations of fact;
3. discuss the issues to be tried and any issues that may be
removed from the case;
4. discuss elimination of unnecessary witnesses and exhibits;
5. discuss the precise length of trial;
6. review jury selection procedures; and
7. to the extent feasible, rule on motions in limine and objections
to exhibits (see ¶¶ F and G concerning the pre-conference
submission of objections and motions in limine).
C.

Witness Lists.
1. Non-Expert Witnesses. The pretrial order must set forth the
names, addresses, and occupations of all witnesses any party
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intends to call. No separate list need be filed with respect to
non-expert witnesses.
2. Expert Witnesses.
(a) Expert

Witness

List.

Expert

witnesses

shall

be

disclosed in accordance with Federal Rule of Civil
Procedure 26(a)(2) and the scheduling order entered
pursuant to Federal Rule of Civil Procedure 16(b).
(b) Objection

as

to

Qualifications.

Any

evidentiary

objections to another party’s expert witness, whether
directed to the witness’s qualifications or to the
foundation for the anticipated testimony, must be filed
at

least

fourteen

days

before

the

final

pretrial

conference. Failure to file such objections will be
deemed a waiver of any objection to opinion testimony
outlined in the statement filed by the witness’s
proponent.
D.

Trial Briefs.
1. Requirement of Filing. Trial briefs must be filed and served on
all other parties. A trial brief is most helpful if it identifies the
issues to be tried and addresses the elements of the claim(s)
involved in the action, evidentiary questions and any other
legal issues reasonably anticipated to arise at trial. A trial brief
that indicates the anticipated testimony of each witness
expected to be called will expedite the final pretrial conference.
2. Plaintiff’s Trial Brief. The plaintiff’s trial brief must be filed at
least fourteen days before the final pretrial conference.
3. Opposing Parties’ Trial Briefs. Opposing parties’ trial briefs
must be filed at least seven days before the final pretrial
conference.
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4. Supplemental Briefs. Any party that deems it necessary may
file a supplemental brief at least two business days before the
final pretrial conference.
E.

Jury Instructions and Voir Dire Questions.
1. Filing with the Court. At least fourteen days before the final
pretrial conference, each side must file any proposed jury
instructions

(identifying

the

source

and/or

supporting

authority for each proposed instruction) and proposed voir dire
questions. The court will conduct the bulk of the voir dire, but
if both sides wish, the court also will allow each side ten
minutes

for

attorney-conducted

voir

dire.

The

court

recommends, but does not require, that counsel confer about
the instructions before this deadline; such discussion may
allow all counsel to prepare fewer proposed instructions,
saving attorney time, client expense, and court time. Counsel
are urged to consult the Seventh Circuit’s Pattern Civil Jury
Instructions. The court’s standard instructions on burden of
proof, credibility of witnesses, deliberations, etc., are attached
to this order.
2. Objections to Proposed Jury Instructions. Any written objections to jury instructions and/or voir dire questions proposed
by other parties must be filed at least seven days before the
final pretrial conference. To preserve any claim of error under
Rule 51 of the Federal Rules of Civil Procedure, the court will,
on the record, deem the parties’ objections to the instructions
renewed at the close of the evidence and again before the jury
retires to deliberate its verdict.
3. Additional Instructions at Trial. If any party finds it necessary
to file additional requested instructions due to the development
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of unanticipated issues, trial counsel shall so inform the court
and opposing counsel as early as possible.
4. Additional Electronic Submission. Proposed jury instructions
shall

be

submitted

via

e-mail

to

chambers

([e-mail]) in Word Perfect or Word
format, as well being filed electronically, unless the court
waives this requirement upon a party’s request.
F.

Exhibits.
1. Disclosure to Opposing Counsel. At least twenty-one days
before the final pretrial conference, each side must assemble
all exhibits that may be introduced in evidence at the trial
(including any deposition exhibits that may be offered at trial)
and all other demonstrative or illustrative items that may be
used at trial, and make copies of each item available to other
counsel. Any exhibit not disclosed at that time cannot be used
at the trial for any purpose other than impeachment or
refreshing recollection. Relief from this prohibition will be
afforded only upon a showing that the need for the exhibit
could not reasonably have been foreseen by the time fixed for
its production (twenty-one days before the final pretrial
conference); even then, disclosure of the exhibit to all other
parties and the court is required as soon as the need for the
exhibit is known. This requirement is in addition to the
disclosure requirements of Federal Rule of Civil Procedure
26(a)(3).
2. Objections to Exhibits. The timing of objections to exhibits is
governed by Federal Rule of Civil Procedure 26(a)(3) and the
scheduling order entered in this case pursuant to Federal Rule
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of Civil Procedure 16(b). Written objections shall be supported
with appropriate memoranda citing points and authorities.
3. Exhibits at Trial.
(a) Evidence Binders. Copies of all exhibits that may be
introduced

in

evidence

shall

be

assembled

into

binders, marked by number or letter (plaintiff’s
exhibits should be marked by numbers, and defendants’ exhibits by letters), and set apart by dividers
within the binder. You must produce two such binders
at trial:

one for the court and one for opposing

counsel.
(b) Presentation of Exhibits. The court highly recommends
the use of its digital exhibit display system in
questioning witnesses about exhibits. Counsel may,
alternatively, produce an exhibit binder with the
original exhibits for the witnesses.
(c) Exhibit List for Clerk. Each side must prepare a list of
its exhibits for the courtroom deputy clerk and submit
this list of exhibits to the courtroom deputy at the
beginning of the trial. An additional binder of exhibits
need not be prepared for the courtroom deputy clerk.
G.

Motions in Limine.

Any motions in limine shall be filed at least seven days before the final
pretrial conference, together with appropriate memoranda citing points
and authorities. You may raise as many issues in a motion in limine as
the case makes appropriate, but you may only file one motion. Oral
motions in limine will be allowed only for good cause shown. Motions
should identify the evidence at issue with specificity.
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H.

Depositions.

Federal Rule of Civil Procedure 26(a)(3)(B) and the scheduling order
entered in this case pursuant to Federal Rule of Civil Procedure 16(b)
shall govern any in-trial use of depositions other than for impeachment.
SO ORDERED.
ENTERED: October 3, 2013

/s/ Robert L. Miller, Jr.
Judge
United States District Court

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FINAL CIVIL JURY INSTRUCTIONS
1.
Members of the jury, you have seen and heard all the evidence and
arguments of the attorneys. Now I will instruct you on the law.
You have two duties as a jury. Your first duty is to decide the facts from
the evidence in the case. This is your job, and yours alone.
Your second duty is to apply the law that I give you to the facts. You
must follow these instructions, even if you disagree with them. Each of the
instructions is important, and you must follow all of them.
Perform these duties fairly and impartially. Do not allow sympathy,
prejudice, fear, or public opinion to influence you. You should not be
influenced by any person’s race, color, religion, national ancestry, or sex.
Nothing I say now, and nothing I said or did during the trial, is meant to
indicate any opinion on my part about what the facts are or about what your
verdict should be.
[Seventh Circuit Civil Jury Instruction 1.01 (2005)]
2.
When I say a particular party must prove something by “a preponderance
of the evidence,” or when I use the expression “if you find,” or “if you decide,”
this is what I mean: When you have considered all the evidence in the case,
you must be persuaded that it is more probably true than not true.
[Seventh Circuit Civil Jury Instruction 1.27 (2005)]
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3.
The evidence consists of the testimony of the witnesses, the exhibits
admitted in evidence, and the stipulations.
A stipulation is an agreement between both sides that certain facts are
true.
[Seventh Circuit Federal Civil Jury Instruction 1.04 (2005)]
4.
You should use common sense in weighing the evidence and consider the
evidence in light of your own observations in life.
In our lives, we often look at one fact and conclude from it that another
fact exists. In law we call this “inference.” A jury is allowed to make reasonable
inferences based on the evidence in the case.
[Seventh Circuit Civil Jury Instruction 1.11 (2005), modified]
5.
You may have heard the phrases "direct evidence" and "circumstantial
evidence." Direct evidence is proof that does not require an inference, such as
the testimony of someone who claims to have personal knowledge of a fact.
Circumstantial evidence is proof of a fact, or a series of facts, that tends to
show that some other fact is true.
The law makes no distinction between the weight to be given to either
direct or circumstantial evidence. You should decide how much weight to give

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to any evidence. In reaching your verdict, you should consider all the evidence
in the case, including the circumstantial evidence.
[Seventh Circuit Civil Jury Instruction 1.12 (2005)]
6.
Certain things are not to be considered as evidence. I will list them for
you.
First, if I told you to disregard any testimony or exhibits or struck any
testimony or exhibits from the record, such testimony or exhibits are not
evidence and must not be considered.
Second, anything that you may have seen or heard outside the
courtroom is not evidence and must be entirely disregarded. [This includes any
press, radio, Internet, or television reports you may have seen or heard. Such
reports are not evidence and your verdict must not be influenced in any way by
such publicity.]
Third, questions and objections or comments by the lawyers are not
evidence. Lawyers have a duty to object when they believe a question is
improper. You should not be influenced by any objection, and you should not
infer from my ruling that I have any view as to how you should decide the case.
Fourth, the lawyers’ opening statements and closing arguments to you
are not evidence. Their purpose is to discuss the issues and the evidence. If the
evidence as you remember it differ from what the lawyers said, your memory is
what counts.
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[Seventh Circuit Civil Jury Instruction 1.06 (2005)]
7.
You must decide whether the testimony of each of the witnesses is
truthful and accurate, in part, in whole, or not at all. You also must decide
what weight, if any, you give to the testimony of each witness.
In evaluating the testimony of any witness, including any party to the
case, you may consider, among other things: the ability and opportunity the
witness had to see, hear, or know the things that the witness testified about;
the witness’s memory; any interest, bias, or prejudice the witness may have;
the witness’s intelligence; the manner of the witness while testifying; and the
reasonableness of the witness’s testimony in light of all the evidence in the
case.
[Seventh Circuit Civil Jury Instruction 1.13 (2005)]
8.
Upon retiring to the jury room, select one of your number as your
presiding juror. The presiding juror will preside over your deliberations and be
your representative here in court.
Forms of verdict have been prepared for you.
[Forms of verdict read].
Take these forms to the jury room, and when you have reached
unanimous agreement on the verdict, your presiding juror will fill in, date, and
sign the appropriate form.
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[Seventh Circuit Civil Jury Instruction 1.32 (2005)]
9.
I do not anticipate that you will need to communicate with me. If you do
need to communicate with me, the only proper way is in writing. The writing
must be signed by the presiding juror, or, if he or she is unwilling to do so, by
some other juror. The writing should be given to the marshal, who will give it to
me. I will respond either in writing or by having you return to the courtroom so
that I can respond orally.
If you do communicate with me, you should not indicate in your note
what your numerical division is, if any.
[Seventh Circuit Civil Jury Instruction 1.33 (2005)]
10.
The verdict must represent the considered judgment of each juror. Your
verdict, whether for or against the parties, must be unanimous.
You should make every reasonable effort to reach a verdict. In doing so,
you should consult with one another, express your own views, and listen to the
opinions of your fellow jurors. Discuss your differences with an open mind. Do
not hesitate to reexamine your own views and change your opinion if you come
to believe it is wrong. But you should not surrender your honest beliefs about
the weight or effect of evidence solely because of the opinions of other jurors or
for the purpose of returning a unanimous verdict.

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All of you should give fair and equal consideration to all the evidence and
deliberate with the goal of reaching an agreement that is consistent with the
individual judgment of each juror. You are impartial judges of the facts.
[Seventh Circuit Civil Jury Instruction 1.34 (2005)]

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