Oelschlager v. Ear, Nose & Throat Specialties, PC et al
Filing
57
SECOND AMENDED ORDER SETTING FINAL SCHEDULE FOR PROGRESSION OF CASE granting 51 Motion to Extend. Depositions due May 22, 2020. Telephone Conference to discuss the status of case progression and trial setting is set for 8/12/2020 at 03:00 PM by Telephone before Magistrate Judge Susan M. Bazis. Pretrial Conference set for 8/26/2020 at 10:00 AM Internet/Telephonic Conferencing before Magistrate Judge Susan M. Bazis. The trial in this matter is canceled and will be rescheduled at the status conference or at the pretrial conference. Ordered by Magistrate Judge Susan M. Bazis. (ADB)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
ROBBIE OELSCHLAGER, individually;
Plaintiff,
vs.
4:18CV3040
SECOND AMENDED ORDER
SETTING FINAL SCHEDULE FOR
PROGRESSION OF CASE
EAR, NOSE & THROAT SPECIALTIES, PC,
and CHRIS A. CEDERBERG, M.D.;
Defendants.
This matter is before the Court on the parties’ Joint Motion to Extend Expert Witness
Disclosure and Deposition deadlines. (Filing No. 51.) The motion is granted. Accordingly,
IT IS ORDERED that the provisions of the Court's earlier progression orders remain in
effect, and in addition to those provisions, the following shall apply:
1.
Motion to Dismiss and Motions for Summary Judgment. Motions to dismiss
and/or for summary judgment shall be filed not later than February 18, 2020. See NECivR 56.1
and NECivR 7.1.
2.
Discovery Deadlines:
a. Deposition Deadline. All depositions, whether or not they are intended to be
used at trial, shall be completed by May 22, 2020.
b. Written Discovery Deadline. All interrogatories, requests for admission and
requests for production or inspection, whether or not they are intended to be
used at trial, shall be completed by December 13, 2019. Counsel may stipulate
to extensions of time to respond to discovery requests in accordance with Fed.
R. Civ. P. 29, but such extensions shall not extend any of the dates in this order;
any request to extend the deadlines of this order shall be sought by motion.
c. Discovery Motions. Discovery motions shall be filed not later than November
13, 2019, as to matters which are then ripe for decision; discovery matters
arising after that date may be the subject of motions until the deposition
deadline. Counsel are reminded of the provisions of NECivR 7.1(i). Motions
to compel shall not be filed without first contacting the chambers of the
undersigned magistrate judge to set a conference to discuss the parties’ dispute.
3.
Disclosure of Expert Witnesses.1 Each plaintiff, counter-claimant, and crossclaimant shall identify expert witnesses by January 1, 2020 and shall serve expert reports by
February 1, 2020. Each Defendant, Counter-Defendant, and Cross-Defendant shall identify
expert witnesses by April 1, 2020, and serve expert reports by May 1, 2020. If necessary to refute
the disclosed opinions of an expert witness of an opponent, a plaintiff, counter-claimant, or crossclaimant may disclose additional expert witnesses not later than May 15, 2020, provided that the
disclosing party then provides all of the information described in Fed. R. Civ. P. Rule 26(a)(2) and
makes the expert witness available for deposition prior to the date set for completion of
depositions. Supplementation of these disclosures, if originally made prior to these deadlines,
shall be made on these deadlines as to any information for which supplementation is addressed in
Fed. R. Civ. P. 26(e). The testimony of the expert at trial shall be limited to the information
disclosed in accordance with this paragraph.
4.
Pretrial Disclosures. Pursuant to Fed. R. Civ. P. 26(a)(3), each party shall serve
opposing counsel and file a redacted version as applicable with the following information
regarding the evidence it may present at trial other than solely for impeachment purposes as soon
as practicable but not later than the date specified:
a. Nonexpert Witnesses - On or before May 22, 2020: The name, address and
telephone number2 of each witness, separately identifying those whom the party
expects to present and those whom the party may call if the need arises.
b. Deposition Testimony and Discovery - The designation of discovery
testimony and discovery responses intended to be utilized at trial is not required
at this time.
c. Trial Exhibits - On or before May 22, 2020: A list of all exhibits it expects
to offer by providing a numbered listing and permitting examination of such
exhibits, designating on the list those exhibits it may offer only if the need
arises.
d. Waiver of Objections. Any and all objections to the use of the witnesses,
deposition testimony, discovery responses, or exhibits disclosed pursuant to the
above subparagraphs, including any objection pursuant to Fed. R. Civ. P. 32(a)
that a deponent is available to testify at the trial, shall be made a part of the
pretrial order. Failure to list objections (except those under Fed. R. Evid. 402
and 403) is a waiver of such objections, unless excused by the Court for good
cause shown.
1
A treating physician must be identified pursuant to Fed. R. Civ. P. 26(a)(2)(A), but a treating
physician is not deemed to be "retained or specially employed to provide expert testimony in the case" so
as to require a written report under Fed. R. Civ. P. 26(a)(2)(B).
2
In accordance with the E-Government Act, counsel shall, on witness lists, exhibits, and other
disclosures and/or documents filed with the Court, redact Social Security numbers, home addresses,
telephone numbers, and other personally identifying information of witnesses, but shall serve an unredacted
version on opposing parties. See NECivR 5.3.
2
5.
Motions in Limine.
a. Motions in limine challenging the admissibility of expert testimony at trial
under Fed. R. Evid. 702, see Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137
(1999), and Daubert v. Merrell-Dow Pharmaceuticals, 509 U.S. 579 (1993),
shall be filed by May 22, 2020, and accompanied by a request for a hearing if
necessary. Failure to timely move for a hearing may constitute waiver of the
request for a hearing.
b. Motions in Limine shall be filed seven days before the pretrial conference. It
is not the normal practice to hold hearings on motions in limine or to rule on
them prior to the first day of trial. Counsel should plan accordingly.
6.
A telephonic conference to discuss the status of case progression and trial setting
will be held with the undersigned magistrate judge on August 12, 2020 at 3:00 p.m. by telephone.
Counsel shall use the conferencing instructions assigned to this case to participate in the
conference. (Filing No. 56.)
7.
The Final Pretrial Conference with the assigned magistrate judge is set for
August 26, 2020 at 10:00 a.m. and will be conducted by internet/telephonic conferencing.
Counsel shall use the conferencing instructions assigned to this case to participate in the
conference. (Filing No. 56.) (If counsel wishes to appear in person, counsel must contact
chambers requesting permission to do so. Before contacting chambers to request such relief,
counsel shall confer regarding the issue.) The final pretrial conference shall be attended by lead
counsel for represented parties. Counsel shall complete prior to the pretrial conference, all items
as directed in NECivR 16.2.3 By the time of the pretrial conference, full preparation for trial shall
have been made so that trial may begin immediately thereafter. The pretrial conference will
include a discussion of settlement, and counsel shall be prepared through investigation, discovery
and communication with clients and insurers, if any, to discuss fully the subject of settlement,
including realistic expectations about liability, obstacles to agreement, offers made, and offers
which can be made at the conference. Counsel shall be prepared to make additional offers or
proposals for settlement in behalf of their clients at the pretrial conference, and counsel shall be
prepared to make or opine on recommendations for further negotiations and conferences. The
parties’ proposed Pretrial Conference Order and Exhibit List(s) must be emailed to
bazis@ned.uscourts.gov, in Word format, by 12:00 p.m. on August 21, 2020.
8.
Mediation and Settlement:
3
All personal information should be redacted from the public version of the order and/or
attachments filed with the Clerk. See NECivR 5.3.
3
a. If the parties intend to mediate their dispute, notice of the mediation shall be
given to the staff of the assigned magistrate judge's office. The filing of a
mediation reference order will terminate pending motions, without prejudice to
refiling. If the mediation is not successful, the moving party may reinstate such
a motion by filing a written notice to that effect, and the other parties may
respond in accordance with the local rules, regarding the date of the notice as
reinstating the response/reply time that remained as of the date the mediation
reference order was filed.
b. Not later than two weeks prior to trial, plaintiff or plaintiff's counsel shall
serve on Defendant or Defendant's counsel a written, updated settlement
proposal. Defendant or Defendant's counsel shall respond in writing to such
proposal not later than one week before trial.
c. Notice of settlement shall be given to the trial judge's office as soon as
practicable but in any event in time to avoid summoning a jury. If a case settles
and notice of settlement is not given in sufficient time to avoid summoning a
jury, assessment of jury costs may – and normally will – be made against a party
and/or counsel for one or more of the parties. For purposes of this paragraph, a
jury is considered summoned for a trial at noon the business day prior to the
designated date of trial.
9.
The trial in this matter is canceled and will be rescheduled at the status conference
or at the pretrial conference.
10.
Motions to Alter Dates. All requests for changes of deadlines or settings
established herein shall be directed to the assigned magistrate judge by appropriate motion,
including all requests for changes of trial dates. Such motions shall not be considered in the
absence of a showing by counsel of due diligence in the timely development of this case for trial
and the recent development of circumstances, unanticipated prior to the filing of the motion, which
require that additional time be allowed.
Dated this 24th day of September, 2019.
BY THE COURT:
s/ Susan M. Bazis
United States Magistrate Judge
4
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