Bieser v. J.E. Phillips & Sons Incorporated

Filing 37

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that the Second Joint Motion of Plaintiff and Defendant to Amend Scheduling Order 33 is GRANTED in part. IT IS FURTHER ORDERED that Plaintiff's Motion for Scheduling Order Granting Plaintiff Opportu nity to Name Additional Medical Experts in the Field of Psychiatry or, in the Alternative, for an Order of Dismissal Without Prejudice 34 is GRANTED in part. IT IS FURTHER ORDERED that the Case Management Order issued June 6, 2012 (Doc. No. 5) is amended as follows: ADR Completion Deadline due by 12/15/2013., ADR Future Reference 11/1/2013., Discovery Completion due by 12/15/2013., Jury Trial set for 4/28/2014 09:00 AM in Courtroom 12N before District Judge John A. Ross., Dispositive Motions due by 12/15/2013., Pretrial Conference set for 4/24/2014 01:30 PM in Courtroom 12N before District Judge John A. Ross. SEE MEMORANDUM AND ORDER FOR FURTHER DEADLINES.. Signed by District Judge John A. Ross on 5/14/13. (LGK)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

JERRY BIESER,
Plaintiff,
v.
J.E. PHILLIPS & SONS, INC.,
Defendant.

)
)
)
)
)
)
)
)
)
)
)

No. 4:12-CV-386-JAR

MEMORANDUM AND ORDER
Following a telephone conference with the parties on April 17, 2013, the Court ordered
the parties to submit a joint motion to amend the case management order with a new trial date,
either February 24, 2014 or April 28, 2014. (Doc. No. 31) On April 22, 2013, the parties
submitted a Second Joint Motion to Amend Scheduling Order (Doc. No. 33) requesting the Court
amend the current case management order by extending certain deadlines and resetting the case
for trial on April 28, 2014 at 9:00 a.m.
On April 23, 2013, Plaintiff filed a Motion for Scheduling Order Granting Plaintiff
Opportunity to Name Additional Medical Experts in the Field of Psychiatry or, in the
Alternative, for an Order of Dismissal Without Prejudice. (Doc. No. 34) In his motion, Plaintiff
states that his employer has requested additional neuropsychological testing in connection with
his pending worker’s compensation case. Plaintiff contends this new testing could alter the
opinions of his treating psychiatrist, Dr. Elizabeth Pribor, thereby necessitating a new medical

expert.1 (Doc. No. 35, pp. 2-3) In opposition to Plaintiff’s motion, Defendant argues Plaintiff has
had ample opportunity over the past year to explore his alleged medical conditions and designate
experts to support his claims, and that permitting Plaintiff to name an additional medical expert
at this juncture is unjust and will result in undue prejudice to Defendant. (Doc. No. 36, pp. 3-4)
Moreover, Defendant states that dismissal of the case will not remedy the prejudice to Defendant
given the fact that it has already expended considerable time and expense defending the case.
(Id., p. 4)
Upon consideration, the motions will be granted in part.
Accordingly,
IT IS HEREBY ORDERED that the Second Joint Motion of Plaintiff and Defendant to
Amend Scheduling Order [33] is GRANTED in part.
IT IS FURTHER ORDERED that Plaintiff’s Motion for Scheduling Order Granting
Plaintiff Opportunity to Name Additional Medical Experts in the Field of Psychiatry or, in the
Alternative, for an Order of Dismissal Without Prejudice [34] is GRANTED in part.
IT IS FURTHER ORDERED that the Case Management Order issued June 6, 2012
(Doc. No. 5) is amended as follows:
I. SCHEDULING PLAN
3. Disclosure shall proceed in the following manner:
(a) Plaintiff shall disclose any additional expert witnesses and shall provide the reports
required by Rule 26(a)(2), Fed.R.Civ.P., no later than July 15, 2013, and shall have depositions
completed, no later than August 1, 2013.
(b) Defendant shall make any request for a physical or mental examination of the
1

Plaintiff acknowledges that depending on the results of the new testing and evaluation, a new
medical expert may not be necessary. (Doc. No. 35, pp. 3-4)
-2-

Plaintiff pursuant to Rule 35, Fed.R.Civ.P., no later than September 1, 2013, and shall have such
examinations completed, no later than October 1, 2013.
(c) Defendant shall disclose all expert witnesses and shall provide the reports
required by Rule 26(a)(2), Fed.R.Civ.P., no later than October 1, 2013, and shall make expert
witnesses available for depositions, and have depositions completed, no later than November 15,
2013.
(d) Discovery of fact witnesses to continue until the close of discovery. The parties shall
complete all discovery in this case no later than December 15, 2013.
4. This case shall be referred to alternative dispute resolution on November 1, 2013,
and that reference shall terminate on December 15, 2013.
5. Any motions to dismiss, motions for summary judgment, motions for judgment on
the pleadings, or, if applicable, any motion to exclude testimony pursuant to Daubert v. Merrell
Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) or Kuhmo Tire Co. Ltd. v. Carmichael, 526
U.S. 137 (1999), must be filed no later than December 15, 2013. Any response shall be filed no
later than January 15, 2014. Any reply shall be filed no later than January 25, 2014.
II. ORDER RELATING TO TRIAL
This action is set for a JURY trial on April 28, 2014 at 9:00 a.m. This is a 2 week
docket, and the parties are expected to be ready and available for trial on the first day of the
docket and thereafter on twenty-four hours notice. In this case, unless otherwise ordered by
the Court, the attorneys shall, not less than twenty (20) days prior to the date set for trial:
1. Stipulation: Meet and jointly prepare and file with the Clerk a JOINT Stipulation

-3-

of all uncontested facts, which may be read into evidence subject to any objections of any party
set forth in said stipulation (including a brief summary of the case which may be used on Voir
Dire).
2. Witnesses:
(a) Deliver to opposing counsel, and to the Clerk, a list of all proposed witnesses,
identifying those witnesses who will be called to testify and those who may be called.
(b) Except for good cause shown, no party will be permitted to call any witnesses not
listed in compliance with this Order.
3. Exhibits:
(a) Mark for identification all exhibits to be offered in evidence at the trial (Plaintiffs to
use Arabic numerals and defendants to use letters, e.g., Pltf-1, Deft.-A, or Pltf Jones-1, Deft
Smith-A, if there is more than one plaintiff or defendant), and deliver to opposing counsel and
to the Clerk a list of such exhibits, identifying those that will be introduced into evidence and
those that may be introduced. The list shall clearly indicate for each business record whether the
proponent seeks to authenticate the business record by affidavit or declaration pursuant to
Fed.R.Evid. 902(11) or 902(12).
(b) Submit said exhibits or true copies thereof, and copies of all affidavits or declarations
pursuant to Fed.R.Evid. 902(11)or 902(12), to opposing counsel for examination. Prior to trial,
the parties shall stipulate which exhibits may be introduced without objection or preliminary
identification, and shall file written objections to all other exhibits.
(c) Except for good cause shown, no party will be permitted to offer any exhibits not
identified or not submitted by said party for examination by opposing counsel in compliance

-4-

with this Order. Any objections not made in writing by the time of the final pretrial conference
may be considered waived.
4. Depositions, Interrogatory Answers, and Request for Admissions:
(a) Deliver to opposing counsel and to the Clerk a list of all interrogatory answers or parts
thereof and depositions or parts thereof (identified by page and line numbers), and answers
to requests for admissions proposed to be offered in evidence. Before the time of the final
pretrial conference, opposing counsel shall state in writing any objections to such testimony and
shall identify any additional portions of such depositions not listed by the offering party which
opposing counsel proposes to offer.
(b) Except for good cause shown, no party will be permitted to offer any interrogatory
answer, or deposition or part thereof, or answer to a request for admissions not listed in
compliance with this Order. Any objections not made as above required may be considered
waived.
5. Motions in Limine: Parties shall file all motions in limine to exclude evidence at least
ten (10) days before the pretrial conference.
6. Final Pretrial Conference: A final pretrial conference is set for April 24, 2014 at
1:30 p.m. in the courtroom of the undersigned. Before the final pretrial conference, each party
shall submit to the Court and to opposing counsel his/her/its written request for instructions and
forms of verdicts reserving the right to submit requests for additional or modified instructions in
light of the opposing party’s requests for instructions. (Each request must be supported by at east
one pertinent citation.)

-5-

Dated this 14th day of May, 2013.

JOHN A. ROSS
UNITED STATES DISTRICT JUDGE

-6-