Faber v. Good Samaritan Health Care Center

Filing 69

MEMORANDUM AND ORDER - Settlement Conference set for 4/20/2010 at 4:00 PM in Chambers before Magistrate Judge Cheryl R. Zwart. Ordered by Magistrate Judge Cheryl R. Zwart. (JAE)

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA EMIL FABER, Personal Representative of the Estate of Zoe Faber, Plaintiff, V. GOOD SAMARITAN HEALTH CARE CENTER, EVANGELICAL LUTHERAN GOOD SAMARITAN SOCIETY, THE, and JOHN DOES 1-10, Defendants. IT IS ORDERED: 1. A settlement conference shall be held before the undersigned with counsel and r e p r e s e n ta tiv e s of the parties on April 20, 2010 beginning at 4:00 p.m. in ch amb ers, 566 Federal Building and United States Courthouse, 100 Centennial M a ll North, Lincoln, Nebraska. The parties' representatives and/or counsel s h a ll be prepared to participate and negotiate a settlement of this case during th e conference in accordance herewith. Unless excused by order of the court, clients or client representatives with c o m p le te authority to negotiate and consummate a settlement shall be in a tte n d a n ce at the settlement conference. This requires the presence of the c lie n t or if a corporate, governmental, or other organizational entity, an a u th o riz e d representative of the client. For a defendant, such representative m u s t have final settlement authority to commit the organization to pay, in the rep resen tativ e's own discretion, a settlement amount up to the plaintiff's prayer, o r up to the plaintiff's last demand, whichever is lower. For a plaintiff, such re p re se n ta tiv e must have final authority, in the representative's own discretion, to authorize dismissal of the case with prejudice, or to accept a settlement a m o u n t down to the defendant's last offer. Any insurance company that is a p a rty or is contractually required to defend or to pay damages, if any, assessed w ith in its policy limits in this case must have a fully authorized settlement re p re se n ta tiv e present. Such representative must have final settlement a u th o rity to commit the company to pay, in the representative's own discretion, a n amount within the policy limits, or up to the plaintiff's last demand, w h ic h e v er is lower. If trial counsel has been fully authorized to commit the ) ) ) ) ) ) ) ) ) ) ) ) )

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MEMORANDUM AND ORDER

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c lie n t to pay or to accept in settlement the amount last proposed by the o p p o n e n t, in counsel's sole discretion, the client, client representative, or in s u r a n c e company representative, as applicable, need not attend. The purpose o f this requirement is to have in attendance a representative who has both the a u th o rity to exercise his or her own discretion, and the realistic freedom to e x e rc is e such discretion without negative consequences, in order to settle the c a se during the settlement conference without consulting someone else who is not physically present. In the event counsel for any party is aware of any c irc u m sta n c e which might cast doubt on a client's compliance with this p a ra g ra p h , s/he shall immediately discuss the circumstance with opposing c o u n se l to resolve it well before the settlement conference, and, if such d is c u ssio n does not resolve it, request a telephone conference with the court a n d counsel. 3. Counsel appearing for the settlement conference without their client re p re se n ta tiv e s or insurance company representatives, authorized as described a b o v e , will cause the settlement conference to be canceled or rescheduled. T h e non- complying party, attorney, or both may be assessed the costs and e x p e n se s incurred by other parties and the court as a result of such c a n ce lla tio n , as well as any additional sanctions deemed appropriate by the c o u rt. Counsel are responsible for timely advising any involved non-party in s u ra n c e company of the requirements of this order. Prior to the settlement conference, counsel shall discuss settlement with their re sp e c tiv e clients and insurance representatives, and shall exchange with o p p o s in g counsel proposals for settlement so the parameters of settlement have b e e n explored well in advance. If as a result of such discussions, counsel for a n y party believes that the parties' respective settlement positions are so d iv e rg e n t, or for any other reason, that settlement is not reasonably possible in th is matter, he or she shall seek a conference with the undersigned and o p p o s in g counsel, by telephone or otherwise, to determine whether the settlem en t conference should be canceled or postponed. To avoid unnecessary in c u rrin g of travel and other expenses if the settlement conference is cancelled o r postponed, request for a conference to discuss cancellation or postponement m u s t be made on or before April 19, 2010 at 1:00 p.m. Counsel shall submit a confidential settlement statement to the undersigned no la te r than April 19, 2010 at 1:00 p.m., setting forth the relevant positions of the p a rtie s concerning factual issues, issues of law, damages, and the settlement n e g o tia tio n history of the case, including a recitation of any specific demands -2-

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a n d offers that have been conveyed. Since the undersigned magistrate judge w ill have no further substantive involvement in this case, this statement should d e sc rib e candid and confidential interests or positions that in counsel's opinion m a y be preeminent in negotiating a settlement; copies should NOT be served o n opposing counsel or parties. The statement may not exceed five (5) pages in length and will not be made a part of the case file. 6. Notwithstanding the provisions of Rule 408, Fed. R. Evid., all statements made b y the parties relating to the substance or merits of the case, whether written o r oral, made for the first time during the settlement conference shall be d e e m e d to be confidential and shall not be admissible in evidence for any re a so n in the trial of the case, should the case not settle. This provision does n o t preclude admissibility in other contexts, such as pertaining to a motion for s a n c tio n s regarding the settlement conference.

DATED this 16th day of April, 2010. BY THE COURT: s/ Cheryl R. Zwart United States Magistrate Judge

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