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

Filing 71

FIFTH AMENDED ORDER SETTING FINAL SCHEDULE FORPROGRESSION OF CASE granting 68 Motion to Extend. The Status Conference presently scheduled for September 11, 2020 is canceled. A Status Conference to discuss the status of case progression and trial and pretrial conference setting is set for 11/10/2020 at 11:00 AM by Telephone before Magistrate Judge Susan M. Bazis. Deposition deadline is February 16, 2021. Ordered by Magistrate Judge Susan M. Bazis. (ADB)

4:18-cv-03040-JMG-SMB Doc # 71 Filed: 07/22/20 Page 1 of 2 - Page ID # 155

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

4:18CV3040
FIFTH 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 Amend Order Setting Final Schedule for Progression of Case deadlines. (Filing No.
68.) 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.
The Status Conference presently scheduled for September 11, 2020 is canceled. A
Status Conference to discuss the status of case progression and trial and pretrial conference
setting will be held by telephone with the undersigned magistrate judge on November 10, 2020 at
11:00 a.m. Counsel shall use the conferencing instructions assigned to this case to participate in
the conference. (Filing No. 70.)
2.
Deposition Deadline: All depositions, whether or not they are intended to be used
at trial, shall be completed by February 16, 2021.
3.
Disclosure of Expert Witnesses.1 Each plaintiff, counter-claimant, and crossclaimant shall identify expert witnesses by September 28, 2020 and shall serve expert reports by
October 30, 2020. Each Defendant, Counter-Defendant, and Cross-Defendant shall identify expert
witnesses by December 28, 2020, and serve expert reports by January 29, 2021. 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 February 12, 2021, 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.

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).

4:18-cv-03040-JMG-SMB Doc # 71 Filed: 07/22/20 Page 2 of 2 - Page ID # 156

4.
Motions in Limine. 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
February 26, 2021, 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.
5.

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.
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.

6.
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 22nd day of July, 2020.
BY THE COURT:
s/ Susan M. Bazis
United States Magistrate Judge