Bremmer et al v. Appleton Electric, LLC et al

Filing 188

ORDER granting Appleton's 145 Motion for Leave and 154 Motion in Limine. WCI's Motion for Certain Witnesses to Appear by Deposition is granted in part and denied in part as set forth within the order 155 . WCI's 158 Motion for Leave to Depose Witness is denied. Appleton's 175 Motion for Protective Order is granted. Ordered by Magistrate Judge Thomas D. Thalken. (MKR)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
WASTE CONNECTIONS, INC.,
Plaintiff,

8:12CV436

vs.
ORDER
APPLETON ELECTRIC, LLC,
Defendant.

This matter is before the court on several motions. The defendant, Appleton Electric,
LLC (Appleton), filed a Motion in Limine (Filing No. 145-1, Filing No. 154) with a brief (Filing No.
146) and index of evidence (Filing No. 147) in support of the motion. The plaintiff, Waste
Connections, Inc. (WCI), did not file a response. WCI filed a Motion for Certain Witnesses to
Appear by Deposition (Filing No. 155) and a related Motion for Leave to Depose Witness (Filing
No. 158). WCI filed an index of evidence (Filing No. 159) and an affidavit (Filing No. 160) in
support of the Motion for Leave to Depose Witness. In response, Appleton filed brief (Filing No.
173) and index of evidence (Filing No. 174) in opposition. Additionally, Appleton filed a Motion
for Protective Order (Filing No. 175). WCI filed a brief (Filing No. 183), index of evidence (Filing
No. 184), and affidavit (Filing No. 185) in opposition to Appleton’s Motion for Protective Order.
BACKGROUND
WCI’s action arises from an injury Rick Bremmer (Bremmer) sustained on Appleton’s
premises (Appleton Facility). See Filing No. 1-1 - Complaint. On May 25, 2011, Bremmer was
at the Appleton Facility to deliver an order for WCI when Bremmer fell into an open pit
approximately twenty feet by twenty feet wide and five feet deep and allegedly sustained a torn
rotator cuff and herniated disc.

Id. ¶¶ 9-13, 18-19.

negligence caused Bremmer’s injuries.

Id. ¶¶ 18-21.

Generally, WCI alleges Appleton’s
Appleton generally denies WCI’s

allegations and asserts several affirmative defenses. See Filing No. 1-1 - Answer ¶¶ 3-4.

ANALYSIS
A.

Appleton’s Motion in Limine
Appleton moves to exclude any testimony, evidence, or argument with respect to

damages relating to anything other than what WCI has actually paid to Bremmer as past

medical benefits and lost-wages. See Filing No. 145-1 - Motion; Filing No. 146 - Brief. Appleton
states WCI’s corporate representative, Ty Bowman (Mr. Bowman), testified WCI is only seeking
damages for wage and indemnity payments and medical benefit payments made on behalf of
Bremmer. See Filing No. 146 - Brief (citing Filing No. 147 - Bowman Depo. 22:2-11, 26:10-17,
27:13-17, and 26:22 - 27:12). Additionally, Appleton states Mr. Bowman testified WCI is not
seeking future lost earnings, medical payments, or pain and suffering.

Id. In light of this

testimony, Appleton argues WCI has abandoned its claim for damages other than those relating
to Bremmer’s past medical bills and lost-wages and therefore WCI should be precluded from
offering any evidence on other damages as such evidence would be irrelevant. Id.
Mr. Bowman’s testimony clearly and unequivocally indicates WCI is no longer seeking to
recover damages with respect to Bremmer’s future medical expenses, future lost earning
capacity, or past and future pain and suffering. Additionally, the parties stipulated in the Order
on Final Pretrial Conference the damages sought are limited to $181,259.05 in medical and
indemnity payments. See Filing No. 139 - Order on Final Pretrial Conference. Lastly, WCI did
not oppose Appleton’s motion. Accordingly, Appleton’s Motion in Limine is granted.
B.

WCI’s Motion for Certain Witnesses to Appear by Deposition
WCI moves for permission for Bremmer’s treating physicians, Dr. Gill and Dr. Buzzell, to

appear by video deposition, and Bremmer’s treating physical therapist, Terry Nelson, and
physician’s assistant, Lynda Shirmen, be allowed to appear by deposition, to be read into
evidence in lieu of personal testimony. See Filing No. 155 - Motion for Certain Witnesses to
Appear by Deposition.

Additionally, WCI requests permission the keepers of the medical

records and bills be allowed to testify by deposition to be read into evidence to avoid undue
expenses. Id.
Terry Nelson and Lynda Shirmen are not identified as witnesses in the Order on Final
Pretrial Conference; therefore, the motion as to them is denied. See Filing No. 139 - Order on
Final Pretrial Conference; see also Filing No. 162 - WCI’s Proposed Witness List. The motion
is also denied as to Dr. Buzzell because a video of Dr. Buzzell’s deposition does not exist and
WCI is not granted leave to take a second deposition of Dr. Buzzell, which the court explains
below. As to the keepers of the medical records and Dr. Gill, the motion is granted.
C.

Dr. Buzzell
In conjunction with WCI’s Motion for Certain Witnesses to Appear by Deposition, WCI

seeks leave to depose Dr. Buzzell by video. See Filing No. 158 - Motion for Leave to Depose
2

Witness. WCI represents Appleton previously deposed Dr. Buzzell, but Appleton has since
submitted a supplemental report from its expert witness, Dr. Alfred Bowles (Dr. Bowles). Id.
WCI also states Dr. Buzzell is unavailable next week to testify.
In response, Appleton argues WCI already elicited testimony from Dr. Buzzell during
Appleton’s deposition of Dr. Buzzell on April 22, 2014.

See Filing No. 173 - Response.

Appleton argues a second deposition is duplicative and unreasonably cumulative. Id. In reply,
WCI argues its request is simple and reasonable and that Appleton has not identified any
prejudice due to a second deposition. See Filing No. 183 - Reply. WCI also argues Appleton
recently deposed Bremmer’s other treating doctor on May 6, 2014. Id.
The “new” material WCI purportedly cites as basis for this late deposition is a letter from
Appleton’s expert summarizing Bremmer’s deposition testimony and stating “the opinions
previously stated in my February 19, 2014 report remain unchanged.” See Filing No. 159-1 Appleton’s Experts’ May 1, 2014, Supplemental Report.1 Additionally, WCI completely fails to
offer any basis why Dr. Buzzell’s April 22, 2014, deposition transcript is insufficient to present at
trial.
IT IS ORDERED:
1.

Appleton’s Motion for Leave (Filing No. 145) and Motion in Limine (Filing No.

145-1, Filing No. 154) are granted.
2.

WCI’s Motion for Certain Witnesses to Appear by Deposition (Filing No. 155) is

granted in part and denied in part as explained above.
3.

WCI’s Motion for Leave to Depose Witness (Filing No. 158) is denied.

4.

Appleton’s Motion for Protective Order (Filing No. 175) is granted.

Dated this 8th day of May, 2014.
BY THE COURT:
s/ Thomas D. Thalken
United States Magistrate Judge

1

The court will address WCI’s motion to strike the supplemental report in a separate order.
Regardless of the ruling on WCI’s motion to strike, this report does not provide a basis for a second
deposition.
3