Kennedy v. United States of America

Filing 39

SECOND AMENDED ORDER SETTING FINAL SCHEDULE FOR PROGRESSION OF CASE granting 38 Joint Motion for Extension of Final Progression Order. 3-day Non-Jury Trial set for 1/25/2016 at 09:00 AM in Lincoln County Courthouse, 301 N. Jeffers St., North Platt e, NE before Senior Judge Lyle E. Strom. Pretrial Conference set for 11/2/2015 at 10:00 AM by Telephone before Magistrate Judge Thomas D. Thalken. Counsel for the defendant shall initiate the conference between participating counsel and the undersigned magistrate judge. Ordered by Magistrate Judge Thomas D. Thalken. (JAB)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
LAURIE KENNEDY,
Plaintiff,

7:13CV5011

vs.
UNITED STATES OF AMERICA,
Defendant.

SECOND AMENDED ORDER
SETTING FINAL SCHEDULE
FOR PROGRESSION OF CASE

This matter is before the court on the parties’ Joint Motion for Extension of Final
Progression Order (Filing No. 38). The motion is granted as set forth below:

IT IS ORDERED: The provisions of the court’s earlier, initial progression order
remain in effect, and in addition to those provisions, the following shall apply:
1.

Motions for Summary Judgment. Motions for summary judgment shall

be filed not later than September 4, 2015. See NECivR 56.1 and 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 October 9, 2015.
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 June 15, 2015. 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

June 30, 2015, for matters then ripe for determination. Counsel are reminded of
the provisions of NECivR 7.1(i).

Disclosure of Expert Witnesses.1

3.

The plaintiff shall, as soon as

practicable but not later than July 6, 2015, serve the defendant with the statement
required by Fed. R. Civ. P. 26(a)(2) regarding each expert witness she expects to call to
testify at trial pursuant to the provisions of Rule 702, 703 or 705, Fed. Rules of
Evidence. The defendant shall serve its statement of the expert witnesses it expects to
call to testify pursuant to Rule 702, 703 or 705, Fed. Rules of Evidence, pursuant to
Fed. R. Civ. P. 26(a)(2) as soon thereafter as practicable, but not later than September
4, 2015.

If necessary to refute the disclosed opinions of an expert witness of an

opponent, the plaintiff may disclose additional expert witnesses not later than
September 18, 2015, 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.2 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.

Witnesses - On or before November 9, 2015:

The name,

address and telephone number 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
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 a 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,
phone numbers, and other personally identifying information of witnesses, but shall serve an unredacted
version on opposing parties. See NECivR 5.3.
2

required for this case. Motions to require such designations may be filed not
later than fifteen days prior to the deposition deadline.
c.

Trial Exhibits - On or before November 9, 2015: 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.
5.

Motions in Limine.
a.

Motions in limine challenging the admissibility of expert testimony at

trial under Fed. R. Evid. 702 shall be filed by September 18, 2015. See Kumho
Tire Co., Ltd. v. Carmichael, 526 U.S. 137 (1999); Daubert v. Merrell-Dow
Pharms., 509 U.S. 579 (1993).

The motions should be 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.

Any other motions in limine shall be filed on or before October 19,

2015.
6.

The Final Pretrial Conference with the undersigned magistrate judge is

set for November 2, 2015, at 10:00 a.m. to be held by telephone conference rather
than in person.

Counsel for the defendant shall initiate the conference between

participating counsel and the undersigned magistrate judge.

Lead counsel for

represented parties shall participate in the final pretrial conference. By October 26,
2015, counsel shall complete all items as directed in NECivR 16.2, and provide me with
a signed copy of the agreed-on final pretrial order.3

3

By the time of the pretrial

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

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.
7.

Settlement.
a.

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.
b.

In the event the parties mediate their dispute, notice of the

mediation shall be given to the staff of the 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.
c.

Notice of settlement shall be given to the trial judge’s office as soon

as practicable.
8.

A three-day Bench Trial is set to commence, at the court’s call, on

January 25, 2016, in North Platte, Nebraska, before the Honorable Lyle E. Strom.
Dated this 18th day of May, 2015.
BY THE COURT:
s/ Thomas D. Thalken
United States Magistrate Judge

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