Acosta et al v. Tyson Foods

Filing 92

AMENDED ORDER SETTING FINAL SCHEDULE FOR PROGRESSION OF CASE granting 91 Motion to Extend Deadlines. Jury Trial set to commence, at the courts call during the week of 11/13/2012 in Courtroom 2, Roman L. Hruska Federal Courthouse, 111 South 18th Plaza, Omaha, NE before Chief Judge Joseph F. Bataillon. Final Pretrial Conference set for 10/15/2012 at 10:00 AM in Chambers before Magistrate Judge Thomas D. Thalken. Ordered by Magistrate Judge Thomas D. Thalken. (MKR)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
MANUEL ACOSTA, et al.,
Plaintiffs,
v.
TYSON FOODS, INC.,
Defendant.

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8:08CV86
AMENDED ORDER
SETTING FINAL SCHEDULE
FOR PROGRESSION OF CASE

This matter is before the court on the plaintiffs’ Unopposed Motion to Extend
Deadlines (Filing No. 91). Upon consideration of good cause shown concerning matters
of importance in scheduling this case,

IT IS ORDERED:
1.

The plaintiffs’ Unopposed Motion to Extend Deadlines (Filing No. 91) is

granted as set forth below.
2.

Motions for Summary Judgment. Motions for summary judgment shall be

filed not later than April 17, 2012. See NECivR 56.1 and 7.0.1.
3.

Discovery Deadlines.
a.

Deposition Deadline. All depositions, whether or not they are

intended to be used at trial, shall be completed by March 27, 2012.
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 served sufficiently early to allow rule
time response before the deposition deadline. 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 January 30, 2012, 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
7.0.1(i).
4.

Disclosure of Expert Witnesses.1 Each plaintiff, counter-claimant, and

cross-claimant shall, as soon as practicable but not later than December 27, 2011, serve
all opposing parties with the statement required by Fed. R. Civ. P. 26(a)(2) regarding each
expert witness it expects to call to testify at trial pursuant to the provisions of Rule 702, 703
or 705, Fed. Rules of Evidence. Each defendant, counter-defendant, and cross-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 February 6, 2012. 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 March 6, 2012,
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.
5.

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

1

A treating physician m ust be identified pursuant to Fed. R. Civ. P. 26(a)(2)(A), but a treating
physician is not deem ed to be “retained or specially em ployed to provide expert testim ony 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-Governm ent Act, counsel shall, on witness lists, exhibits, and other
disclosures and/or docum ents filed with the court, redact social security num bers, hom e addresses, phone
num bers, and other personally identifying inform ation of witnesses, but shall serve an unredacted version on
opposing parties. See NECivR 5.0.3.
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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 February 14, 2012: 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 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 August 10, 2012: 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.
6.

Motions in Limine.
a.

Motions in limine challenging the admissibility of expert

testimony at trial under Fed. R. Evid. 702 shall be filed by April 10, 2012.
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 August

20, 2012.
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7.

The Final Pretrial Conference with the undersigned magistrate judge is set

for October 15, 2012, at 10:00 a.m. in chambers, Suite 2271, Roman L. Hruska United
States Courthouse, 111 South 18th Plaza, Omaha, Nebraska. 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.
8.

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 but in any event in time to avoid summoning a jury. If a
3

All personal inform ation should be redacted from the public version of the order and/or attachm ents
filed with the clerk. See NECivR 5.0.3.
4

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.

Trial is set to commence, at the court's call, during the week of November

13, 2012, in Omaha, Nebraska, before the Honorable Joseph F. Bataillon and a jury.
Unless otherwise ordered, jury selection shall be at the commencement of trial.
10.

Motions to alter dates. All requests for changes of deadlines or settings

established herein shall be directed to the 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 October, 2011.
BY THE COURT:
s/ Thomas D. Thalken
United States Magistrate Judge

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