Oelschlager v. Ear, Nose & Throat Specialties, PC et al

Filing 65

THIRD AMENDED ORDER SETTING FINAL SCHEDULE FOR PROGRESSION OF CASE - that the provisions of the Court's earlier final progression orders remain in effect, and in addition to those provisions, the following shall apply: All depositions, whether o r not they are intended to be used at trial, shall be completed by August 20, 2020. The Final Pretrial Conference in this matter is cancelled. A telephonic conference to discuss the status of case progression and trial and pretrial conference setting will be held with the undersigned magistrate judge on September 11, 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 .) Ordered by Magistrate Judge Susan M. Bazis. (LKO)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
ROBBIE OELSCHLAGER, individually;
Plaintiff,
vs.

4:18CV3040
THIRD 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 deadlines. (Filing No. 64.) The motion is granted. Accordingly,
IT IS ORDERED that the provisions of the Court's earlier final 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 August 20, 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 April 1, 2020 and shall serve expert reports by May 1,
2020. Each Defendant, Counter-Defendant, and Cross-Defendant shall identify expert witnesses
by July 1, 2020, and serve expert reports by August 1, 2020. If necessary to refute the disclosed
opinions of an expert witness of an opponent, a plaintiff, counter-claimant, or cross-claimant may
disclose additional expert witnesses not later than August 14, 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.

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 August 28, 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.

5.
The Final Pretrial Conference in this matter is cancelled. A telephonic conference
to discuss the status of case progression and trial and pretrial conference setting will be held with
the undersigned magistrate judge on September 11, 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.)
6.

Mediation and Settlement:
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.

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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).

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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.
7.
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 27th day of December, 2019.
BY THE COURT:

s/ Susan M. Bazis
United States Magistrate Judge

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