Cornhusker Energy Lexington, LLC v. English Boiler & Tube, Inc.
FIFTH AMENDED FINAL PROGRESSION ORDER granting 45 Joint Stipulation to Modify Progression Order. Final Pretrial Conference set for 9/6/2012 at 10:30 AM in Chambers before Magistrate Judge F.A. Gossett. Jury Trial set for 9/25/2012 at 09:00 AM in Courtroom 5, Roman L. Hruska Federal Courthouse, 111 South 18th Plaza, Omaha, NE before Senior Judge Lyle E. Strom. Ordered by Senior Judge Lyle E. Strom. (TCL )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
CORNHUSKER ENERGY LEXINGTON,
LLC, a Nevada limited liability company,
ENGLISH BOILER & TUBE, INC., a
FINAL PROGRESSION ORDER
This matter is before the court on the Joint Stipulation to Modify Progression
Order (Filing No. 45).
IT IS ORDERED:
Mandatory Disclosures. The mandatory disclosures described in Fed.
R. Civ. P. 26(a)(1) shall be completed by May 26, 2011.
Discovery Deadline. All discovery, whether or not intended to be used at
trial, shall be completed by July 3, 2012. 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 that date.
Counsel may stipulate to extensions of time to respond to discovery requests in
accordance with Fed. R. Civ. P. 29, as amended, but such extensions shall not extend
any of the dates in this order; any requests for extensions of any of the deadlines herein
shall be made by appropriate motion and order.
Limits on Discovery. Each party is limited to serving fifty (50)
interrogatories, including subparts, on any other party. Each party is limited to taking
ten (10) depositions in this case, without leave of court.
by Rule 30(d)(2).
Depositions shall be limited
Disclosure of Expert Witnesses.1 On or before May 31, 2012, the
plaintiff shall identify all expert witnesses and shall serve the defendant 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. On or before June 29, 2012, the defendant shall identify all expert witnesses
and shall serve the plaintiff 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 Rules 702, 703, or 705, Federal Rules of Evidence. If necessary to refute
the disclosed opinions of an expert witness of an opponent, a party may disclose
additional expert witnesses not later than July 16, 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
deposition. 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.
Pretrial Disclosures: Pursuant to Fed. R. Civ. P. 26(a)(3), each party
shall provide to all other parties the following information regarding the evidence that it
may present at trial other than solely for impeachment purposes as soon as practicable
but not later than the date specified:
Nonexpert Witnesses - 5 working days before the Final Pretrial
Conference : 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.
Deposition Testimony and Discovery - 5 days before final pretrial
conference: 1) The portions of each deposition, designated by page and
line, that it intends to offer and 2) each discovery response of another
Generally, a treating physician shall not be deemed to be “retained or specially employed to provide expert
testimony in a case” within the meaning of Fed. R. Civ. P. 26(a)(2)(B), but a treating physician must be identified
pursuant to Fed. R. Civ. P. 26(a)(2)(A).
party it intends to offer. Such designations and any objections thereto
shall also be included in the final pretrial conference order. See NELR
Trial Exhibits - 5 working days before final pretrial conference: A list
of all exhibits it expects to offer by providing a numbered listing and
permitting examination of such exhibits. The parties shall also designate
on the list those exhibits it may offer only if the need arises.
Waiver of Objections: Any objections to the use of witnesses, deposition
designations, discovery responses, or exhibits shall be listed in the pretrial
order. Failure to list objections (except those under Fed. R. Evid. 402 and
403) shall be deemed waived, unless excused by the court for good cause
Filing of Disclosures: The filing of pretrial disclosures required by Fed.
R. Civ. P. 26(a)(3) shall be deemed filed at the time of the filing of the
Order on Final Pretrial Conference in this matter.
Expert Witness Testimony. Any motion in limine challenging the
admissibility of testimony of an expert witness under Rule 702, Fed. Rules of Evidence
shall be filed not later than August 6, 2012, in the absence of which any objection
based upon said rule shall be deemed waived. See Kumho Tire Co., Ltd. v.
Carmichael, 526 U.S. 137 (1999); Daubert v. Merrell Dow Pharmaceuticals, 509
U.S. 579 (1993).
Rule 104 Hearings. Any pretrial motion which will require an evidentiary
hearing pursuant to Fed. R. Evid. 104 shall be filed not later than five (5) working days
following the deadline for the completion of depositions.
In addition, if the requested hearing involves a Daubert - Kumho question
regarding an expert, the expert’s disclosure under Fed. R. Civ. P. 26(2)(2)(A)&(B) must
be submitted to Judge Strom’s chambers when the motion is filed.
Absence of a request for a hearing may be deemed waiver of the right to a
hearing. A brief in support and all material regarding the requested hearing must be
delivered to Judge Strom’s chambers when the Rule 104 hearing motion is filed.
Opposing parties- are given ten (10) days thereafter to deliver briefs in opposition.
All motions for summary judgment shall be filed on or before July 31,
2012. See NELR 56.1 and 7.1.
The Final Pretrial Conference is set for September 6, 2012 at 10:30
a.m. before Magistrate F. A. Gossett, in chambers, Suite 2210, 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 NELR 16.2. By the
time of the pretrial conference, full preparation for trial shall have been made so that trial
may begin at any time during the session indicated below.
All other provisions of parties joint planning conference report not
addressed in this order shall be deemed submitted and adopted by the Court.
Trial is set to commence at 9:00 a.m. on September 25, 2012 in
Omaha, Nebraska, before the Honorable Lyle E. Strom and a jury.
Motions to Alter Dates. All requests for changes of date settings shall be
directed to the undersigned judge by appropriate motion.
DATED this 5th day of June, 2012.
BY THE COURT:
s/ LYLE E. STROM
United States District Judge
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