Perez et al v. Viens et al

Filing 101

PRETRIAL ORDER - estimated length of trial is 5 days; Jury Trial set for 5/9/2011 at 09:00 AM in Courtroom 2, Federal Building, 100 Centennial Mall North, Lincoln, NE before Magistrate Judge Cheryl R. Zwart.Ordered by Magistrate Judge Cheryl R. Zwart. (CRZ)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA

JESSIE L. PEREZ, individually and as )
next friend of JACQUALYN PEREZ, )
)
)
Plaintiff,
)
)
vs.
)
)
DAVID P. VIENS, II, and
)
COVENANT TRANSPORT, INC.,
)
Defendants.

Case No. 4:09cv3206

ORDER ON
FINAL PRETRIAL
CONFERENCE

A final pretrial conference was held on the 20th day of April, 2010 by
WebEx conferencing. Appearing for the parties as counsel were:
James L. Cox, Jr.
Rossi Cox Vucinovich Flaskamp, PC
3801 East Florida Ave., Suite 905
Denver, CO 80210
Steven D. Davidson
Jennifer D. Tricker
Baird Holm LLP
1500 Woodmen Tower
Omaha, NE 68102
(A)

Exhibits. See attached Exhibit List.

(B) Uncontroverted Facts. The parties have agreed that the following
may be accepted as established facts for purposes of this case only:

1.

An accident occurred on April 18, 2008, in a rest area off Nebraska

Interstate 80 approximately two miles east of York, Nebraska, involving a vehicle
operated by Plaintiff Jessie Perez and a vehicle owned by Defendant Covenant
Transport, Inc. and operated by Defendant David Viens, an employee of Covenant.
2.

The negligence of Defendant David Viens was the proximate cause of

the vehicle collision that gives rise to this action.
3.

Defendant David Viens was in the course and scope of his

employment with Defendant Covenant Transport, Inc., at the time of the collision.
4.

The negligence of Defendant David Viens is imputable by operation

of law to Defendant Covenant Transport, Inc.
(C) Controverted and Unresolved Issues. The issues remaining to be
determined and unresolved matters for the court’s attention are:
1.

Was the collision the proximate cause of some injury or damage to the
Plaintiff.

2.

What is the nature and extent of any injury and damage to the Plaintiff
that was proximately caused by the collision.

3.

Did Jessie Perez mitigate his damages—as to both medical care and
employment.

4.

Should the testimony of Jake DeNell, P.T., be excluded as untimely
disclosed expert testimony. Will be resolved when the court rules
on the deposition objections and motions in limine as to this
witness—due to be filed on or before May 6, 2011.

5.

Should the testimony of Donn M. Turner, M.D., regarding the report
of Jake DeNell, P.T., be excluded as inadmissible hearsay, as lacking
foundation, and as involving the content of untimely disclosed expert
2

6.

testimony. Will be resolved when the court rules on the deposition
objections and motions in limine as to this witness—due to be filed
on or before May 6, 2011.
Should the testimony of James Horrocks, M.D., who performed a
Rule 35 examination, be permitted on the subject of causation. Will
be resolved when the court rules on the deposition objections and
motions in limine as to this witness—due to be filed on or before
May 6, 2011.

(D) Witnesses. All witnesses, including rebuttal witnesses, expected to be
called to testify by plaintiff, except those who may be called for impeachment
purposes as defined in NECivR 16.2(c) only, are:
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
14.
15.

Jessie Perez (will call)
Officer John Prusia (will call)
Marcello Sanchez (will call – by video deposition)
Ricky Tilford (will call – by video deposition)
Douglas Cook (will call – by deposition)
Jeffrey Yosten, M.D. (may call)
Kerry McDonald, M.D. (will call – by video deposition)
Richard Murphy, M.D. (may call)
Stephen Doran, M.D. (will call – by video deposition)
Donn Turner, M.D. (will call – by video deposition)
Cleve Hartman, M.D. (will call – by video deposition)
Jake Denell, PT (will call – by video deposition)
Pat Pfeifer (will call)
James Bobenhouse, M.D. (may call)
Dan Peetz, PT (may call)

All witnesses expected to be called to testify by defendant, except those who
may be called for impeachment purposes as defined in NECivR 16.2(c) only, are:
1.

David P. Viens, II (may call) Viens’ whereabouts has previously
been unknown and therefore not disclosed to the plaintiff.
Accordingly, the plaintiff will object if this witness/defendant is
called to testify at trial because plaintiff has been unable to obtain
discovery (written or deposition) from Viens.

2.

Kent Allison, M.D. (will call – by video deposition)
3

3.
4.
5.

Craig Bartroff, M.D. (will call—by video deposition)
Steve Koenig (may call)
Deanna Salazar (may call)

It is understood that, except upon a showing of good cause, no witness
whose name and address does not appear herein shall be permitted to testify over
objection for any purpose except impeachment. A witness whose only testimony is
intended to establish foundation for an exhibit for which foundation has not been
waived shall not be permitted to testify for any other purpose, over objection,
unless such witness has been disclosed pursuant to Federal Rule of Civil Procedure
26(a)(3). A witness appearing on any party’s witness list may be called by any
other party.
(E) Expert Witnesses’ Qualifications. Experts to be called by plaintiff
and their qualifications are:
1.
David J. Bilek, P.E.
2.
Jeffrey B. Opp. The plaintiff intends to provide an updated
economic report from this expert, updated to reflect a May 9, 2011 trial
date. Defendant reserves the right to object to the updated report.
Experts to be called by defendant and their qualifications are:
1.

James Horrocks, M.D. Plaintiff objects that this expert witness was
not timely disclosed. The objection will be resolved when the
court rules on the deposition objections and motions in limine as
to this witness—due to be filed on or before May 6, 2011.

2.
3.
4.

Wilson C. “Toby” Hayes, Ph.D.
Mark S. Erickson, P.E.
Christopher L. Bartlett, Ph.D.

A curriculum vitae for each expert is attached.
(F) Voir Dire. Counsel have reviewed Federal Rule of Civil Procedure
47(a) and NECivR 47.2(a) and suggest the following with regard to the conduct of
juror examination:
The court will ask preliminary questions. Thereafter, the parties will have
30 minutes of voir dire per side.
4

(G) Number of Jurors. Counsel have reviewed Federal Rule of Civil
Procedure 48 and NECivR 48.1 and suggest:
Plaintiff requests a jury of seven.
Defendant requests a jury of twelve.
The case will be tried to a jury of seven or eight.
(H)
verdict.

Verdict. The Defendants will not stipulate to a less-than-unanimous

(I)
Briefs, Instructions, and Proposed Findings.
Counsel have
reviewed NECivR 39.2(a), 51.1(a), and 52.1, and suggest the following schedule
for filing trial briefs, proposed jury instructions, and proposed findings of fact, as
applicable: trial briefs (if any) and proposed jury instructions shall be filed on or
before May 4, 2011.
(J) Length of Trial. Counsel estimate the length of trial will consume
not less than 4 days, not more than 5 day(s), and probably about 5 day(s).
(K)

Trial Date. Trial is set for May 9, 2011.

Additional deadlines:
1)

On or before April 27, 2011, the defendant will disclose the
documentation for all testing of the plaintiff performed by Dr. Horrocks,
copies of any documents Dr. Horrocks relied on in performing his
examination, creating his report, and/or formulating his opinions (if any),
and all records provided to Dr. Horrocks for the Rule 35 examination.

2)

On or before April 29, 2011, the parties shall: 1) file their updated
exhibit list, and 2) submit a copy of the exhibit list in MS Word or
WordPerfect format by email to [e-mail].

3)

To the extent the deposition transcripts are available, on or before
April 29, 2011, the parties shall submit to the court copies of the
transcripts of deposition testimony to be offered at trial, along with any
objections to this proffered testimony.

5

4)

On or before May 6, 2011, the defendant shall file the transcript of
Jake DeNell’s deposition, the defendant’s objections to this witness
and/or his testimony, and any brief in support of its objections.
Plaintiff’s response to any objections raised by defendant regarding
witness Jake DeNell shall be filed on or before May 8, 2011 at noon
(C.D.T.).

Dated this 20th day of April, 2011
JESSIE L. PEREZ, individually and as next
friend of JACQUALYN PEREZ, Plaintiff,
s/ James L. Cox, Jr.
James L. Cox, Jr.
Rossi Cox Vucinovich Flaskamp, PC
3801 East Florida Ave., Suite 905
Denver, CO 80210
[phone]
DAVID P. VIENS, II, and COVENANT
TRASPORT, INC., Defendants
s/ Steven D. Davidson
Steven D. Davidson
Jennifer D. Tricker
Baird Holm LLP
1500 Woodmen Tower
Omaha, NE 68102
[phone]
BY THE COURT:

United States Magistrate Judge

6

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA

JESSIE L. PEREZ, individually and as next
friend of JACQUALYN PEREZ,

Case No. 4:09cv3206

Plaintiff,
EXHIBIT LIST
v.
DAVID P. VIENS, II, and COVENANT
TRANSPORT, INC.,
Defendants.

Unless an objection is listed below, the document will be received if offered by
either party.
Plaintiff
Exhibit
No.

Defendant
Exhibit
No.

NOT REC'D
DESCRIPTION

OFFER

OBJECTION

1

Drawing of accident scene by Jessie Perez

2

Photographs of Plaintiff’s vehicle

3

Photographs of Plaintiff’s vehicle

4

Photographs of Plaintiff’s vehicle

5

American Steel 4XOutfitters Invoice 06/21/08

6

Fresh Air Invoice 08/07/09

7

Schematic of a 1996 Chevrolet Cavalier

F,R,H,O

8

Right strut, Anchor Replacement Parts

F,R,H,O

9

Engine mount, Anchor Replacement Parts

F,R,H,O

Transmission mount, Anchor Replacement
Parts
Copy of State of Nebraska Investigator’s
Motor Vehicle Accident Report dated
04/13/08
Email from Jan Stuhr, York County Sheriff’s
Office, 02/02/10 re 911 recording, file (7 pp)
Satellite view of York Rest Area

F,R,H,O

F,R,H,O

15

Custard Insurance Adjusters Claim Photo
07/31/09 (4 pp)
Photographs of Plaintiff’s vehicle

16

Photographs of Plaintiff’s vehicle

10
11

12
13
14

F,R,H,O

F,R,H,O

REC'D

DATE

Plaintiff
Exhibit
No.
17

Defendant
Exhibit
No.

NOT REC'D
DESCRIPTION

Photographs of Plaintiff’s vehicle

18
19
20
21
22
23
24
25
26
27
28
29
30
30A
30B
31

32

33

34

35

36
36A

36B

Medical record Lakeside Hospital Emergency
Records 04/13/08
Office records of Dr. Doran dated 06/18/08,
06/24/08, and 07/30/08 (8 pp)
Picture of cervical MRI with contrast 05/23/08
ordered by Dr. Murphy (Bergan Mercy) – film
Cervical MRI with contrast 05/23/08 ordered
by Dr. Murphy (Bergan Mercy) – report (2 pp)
Cervical MRI with contrast 05/23/08 ordered
by Dr. Murphy (Bergan Mercy) – film
Registration Information 08/12/08 (Front
Range Center for Brain & Spine Surgery,
P.C.) (6 pp)
Oswestery Back Disability Index dated
08/12/08 (Front Range Center for Brain &
Spine Surgery)
Oswestery Neck Disability Index dated
08/12/08 (Front Range Center for Brain &
Spine Surgery)
Operative Note 09/02/08 re neck fusion by
Dr. Turner (Poudre Valley Health System) (2
pp)
Oswestery Neck Disability Index dated
11/19/08 (Front Range Center for Brain &
Spine Surgery)
Cervical x-ray 11/19/08 ordered by Dr.
Turner (Cheyenne Radiology & MRI) – report
Cervical x-ray 11/19/08 ordered by Dr.
Turner (Cheyenne Radiology & MRI) – film
Se: 1003/3
Cervical x-ray 11/19/08 ordered by Dr.
Turner (Cheyenne Radiology & MRI) – film
Se: 1002/3

OFFER

OBJECTION

REC'D

DATE

Plaintiff
Exhibit
No.
36C

37
38
39
39A
40
41
42
42A
43
44
45
46

Defendant
Exhibit
No.

NOT REC'D
DESCRIPTION

Cervical x-ray 11/19/08 ordered by Dr.
Turner (Cheyenne Radiology & MRI) – film
Se: 1001/3
Lumbar CT 04/21/09 ordered by Dr. Hartman
(Great Plains) – report (2 pp)
Medical History form 08/26/09 (Front Range
Center for Brain & Spine Surgery) (4 pp)
Lumbar MRI 09/03/09 ordered by Dr.
Hartman (Great Plains) - report
Lumbar MRI 09/03/09 ordered by Dr.
Hartman (Great Plains) - film
Operative Report 10/16/09 re back fusion by
Dr. Turner (Poudre Valley) (2 pp)
Lumbar x-ray 03/08/10 ordered by Dr. Turner
(Great Plains) – film (LATERAL)
Lumbar x-ray 03/08/10 ordered by Dr. Turner
(Great Plains) – film (AP/OBL)
Lumbar x-rays 03/08/10 ordered by Dr.
Turner (Great Plains) - report
Letter To Whom It May Concern from Dr.
Hartman 04/30/09 re unable to work
Lumbar x-ray 08/17/10 ordered by Dr. Turner
(Great Plains) – report
Lumbar x-ray 08/17/10 ordered by Dr. Turner
(Great Plains) - report
Exemplars of “hardware” in Mr. Perez’s neck

OFFER

OBJECTION

F,R,H,O

F,R,H,O

47
48

Exemplars of “hardware” in Mr. Perez’s back

F,R,H,O

50

UP Medical Rules Overview

F,R,H,O

51

UP 90.4 Medical Rules (13 pp)

F,R,H,O

52

F,R,H,O

55

UP Locomotive Engineer Job Description
Brief (3 pp)
Correspondence from W.R. (Rick) Turner,
Vice-President Labor Relations, Union
Pacific Railroad Company to All General
Chairmen dated February 4, 2011 regarding
rules governing all Fitness-for-Duty Activities
Union Pacific Railroad videotape titled “So
You Want To Be A Locomotive Engineer”
Photograph of Engineer Seat –USSC “9010”

56

Photograph of Engineer Seat – Seats Inc.

F,R,H,O

57

Photograph of Engineer Seat – Coach/Car
“Cadillac”
Photograph of Engineer Seat – Jagger
“Cabmaster

F,R,H,O

49

53

54

58

F,R,H,O

F,R,H,O
F,R,H,O

F,R,H,O

REC'D

DATE

Plaintiff
Exhibit
No.

Defendant
Exhibit
No.

NOT REC'D
DESCRIPTION

OFFER

OBJECTION

Union Pacific Railroad videotape titled
“Proper Handbrake Operation.”
Ellcon National Model 800-LG Operating and
Maintenance Instructions issued February 1,
2000
Ellcon National 210 Series Hand Brakes

F,R,H,O

F,R,H,O

65

Union Pacific Railroad Air Brake and Train
Handling Rules: (a) 30.0 - Air Brake Tests;
(b) 30.1.1 - Inspecting and Testing Brake
Equipment; (c) 30.1.2 - Responsibility for
Required Air Tests; (d) 30.1.3 - Coupling and
Securing Air Hoses; (e) 31.0 – Train
Operation and Train Handling Rules; (f) 31.1
– Locomotives, Cars or Train Standing; (g)
31.1.1 – Equipment Unattended; (h) 31.1.2 –
Locomotives Unattended
Union Pacific PB-20300 (updates to the
General Code of Operating Rules effective
April 3, 2005).
Union Pacific GCOR – General Code of
Operating Rules, Fifth Edition, Effective April
3, 2005
GCOR 1.1

66

GCOR 1.2

F,R,H,O

67

GCOR 7.2

F,R,H,O

68

North Platte Career Center printout

F,R,H,O

69

“Whole-Body Vibration Exposure Study in
U.S. Railroad Locomotives – An Ergonomic
Risk Assessment,” AIHA Journal,
July/August 2002, pp.439-446
“Whole-body vibration and ergonomic study
of US railroad locomotives,” Journal of
Sound and Vibration, 298 (2006) 594-600
Covenant Transport “About Us” printout
(http://www.covenanttransport.com/cms/Abo
ut+Us/2.html)
Video surveillance taken 04/13/08
(Defendant’s Supplemental Rule 26(a)(1)
Disclosures 03/18/11)
TransNet report to Covenant Transportation
dated 12/20/10
TransNet Investigative Services, Inc. video
surveillance taken 01/17/11-01/20/11 (Agent
1)
TransNet Investigative Services, Inc. video
surveillance taken 01/19/11-01/20/11 (Agent
2)
TransNet Investigative Services, Inc. video
surveillance taken 01/21/11 and 01/22/11

F,R,H,O

59
60

61
62

63

64

70

71

72

73
74

75

76

F,R,H,O

F,R,H,O

F,R,H,O

F,R,H,O

F,R,H,O

F,R,H,O

F,R,H,O

REC'D

DATE

Plaintiff
Exhibit
No.

Defendant
Exhibit
No.

NOT REC'D
DESCRIPTION

OFFER

OBJECTION

F,R,H,O

79

TransNet report to Covenant Transportation
dated 01/27/11
Report of David J. Bilek, P.E., and David A.
Vellos, Mechanical Systems Analysis, Inc.,
11/19/10
CV of David J. Bilek, P.E.

80

Testimonial history of David J. Bilek, P.E.

F,R,H,O

81

Fee schedule for Mechanical Systems
Analysis, Inc.

F,R,H,O

77
78

82
83
84
85
86
87
88
89
90
91
92
93
94
95
96
97

Complete file of Dr. Hartman

98

CV of Cleve H. Hartman, M.D.

99

Complete file of Dr. Turner

100

CV Donn M. Turner, M.D.

101

Complete file of Dr. Murphy

102

CV of Richard P. Murphy, M.D.

103

Correspondence (03/01/11) and FCE
(02/24/11) from Jake DeNell, PT (11 pp)

F,R,H,O (see
motion in
limine)

104

CV of Jake DeNell, PT

F,R,H,O (see
motion in
limine)

105

Complete file of Dr. Doran

REC'D

DATE

Plaintiff
Exhibit
No.

Defendant
Exhibit
No.

NOT REC'D
DESCRIPTION

106

Complete file of Dr. Bobenhouse

108

OBJECTION

CV of Stephen E. Doran, M.D.

107

OFFER

CV of James A. Bobenhouse, M.D.

109
110

Complete file of Dr. McDonald

111

EMG and Nerve Conduction

112

CV of Kerry A. McDonald, M.D.

113
114
115
116
117

Family Physical Therapy Treatment Notes of
Dan Peetz, PT (1 p)
Correspondence 12/23/08 from Dan Peetz,
PT, to Dr. Doran
CV of Dan Peetz, PT

118

Union Pacific Railroad Report of Personal
Injury or Occupational Illness 05/20/08
Union Pacific Railroad Request for Family or
Medical Leave 06/06/08
Correspondence 06/24/08 from Ms. Clark,
Union Pacific Railroad, to Mr. Perez, re
MLOA
Tax returns 2000, 2005, 2006, 2007

F,R,H,O

F,R,H,O

126

Earnings history January 2000 – December
2008
Report of Jeffrey B. Opp, Caulson Opp &
Associates 11/05/10
Report of Jeffrey B. Opp, Caulson Opp &
Associates
CV of Jeffrey B. Opp

127

Testimonial history of Jeffrey B. Opp

F,R,H,O

128

Fee scheduled of Jeffrey B. Opp

F,R,H,O

129

Plaintiff Jessie L. Perez’s Answers to
Defendant’s Interrogatories 03/01/10
Defendant’s Supplemental Rule 26(a)(1)
Disclosures 01/25/10

R,O

Defendant’s Supplemental Rule 26(a)(1)
Disclosures 03/18/11 (TransNet Investigation
Services reports/videos)

R,O

119
120
121

122
123
124
125

130
131

132
133

F,R,H,O
F,R,H,O

R,O

F,R,H,O
F,R,H,O

R,O

REC'D

DATE

Plaintiff
Exhibit
No.

Defendant
Exhibit
No.

NOT REC'D
DESCRIPTION

OFFER

OBJECTION

134
135
136

200

Investigator’s Motor Vehicle Accident Report,
4/13/08

201

Photograph of Perez vehicle

202

Photograph of Perez vehicle

203

Photograph of Perez vehicle

204

Photograph of Perez vehicle

205

Aerial photograph of rest area

206

Photo of Perez with truck

207

Estimate, Fresh Aire Kustom Grafix & Airbrushing,
4/22/08

208

Estimate, American Steel 4X4 Outfitters, 5/16/08

209

Surveillance video (full)

F

210

Surveillance video (edited)

F

211

Bartruff report

212

Hartman office notes

213

Complete Family Medicine office notes

214

McDonald office notes

215

Xray report; 4/13/08, Lakeside Hospital (from
McDonald)

216

Cholesterol test results report; 5/1/08 (from
McDonald)

217

MRI report cervical spine, 5/23/08; Alegent Health
(from McDonald)

218

MRI report shoulder, 5/23/08, Alegent Health (from
McDonald)

R, Cum, 403
F, H, R

REC'D

DATE

Plaintiff
Exhibit
No.

Defendant
Exhibit
No.

NOT REC'D
DESCRIPTION

OFFER

OBJECTION

219

Cholesterol test results report; 9/18/08 (from
McDonald)

220

Medical Assessment form, section 1, 11/26/08
(from McDonald)

221

Nurse notes, 1/21/09 (from McDonald)

222

EMG report, 5/9/08 (from McDonald)

223

Doran office notes

224

Family Physical Therapy treatment notes

225

Letter, Peetz to Doran, 12/23/08

226

Turner office notes (narrative notes)

F, Cum

227

Turner work status report, 8/28/08

F, Cum

228

Supplemental Doctor’s Statement, 9/8/08 (from
Turner)

F, Cum

229

Turner work status report, 11/19/08

F, Cum

230

Supplemental Doctor’s Statement, 11/24/08 (from
Turner)

F, Cum

231

Turner work status report, 2/3/09

F, Cum

232

Lakeside Hospital emergency record, 4/13/08

233

Horrocks CV

234

Hayes CV

235

Erickson CV

236

Bartlett CV

All Obj.
reserved

REC'D

DATE

Plaintiff
Exhibit
No.

Defendant
Exhibit
No.

NOT REC'D
DESCRIPTION

OBJECTIONS
R: Relevancy
H: Hearsay
A: Authenticity
O: Other - Rule 403
Cum: Cumulative
DOCS/1032299.1

OFFER

OBJECTION

REC'D

DATE