Murphy et al v. Svoboda et al
Filing
83
ORDER OF FINAL PRETRIAL CONFERENCE - Jury Trial set for 11/23/2015 at 08:30 AM in Courtroom 3, Roman L. Hruska Federal Courthouse, 111 South 18th Plaza, Omaha, NE before Senior Judge Joseph F. Bataillon. Ordered by Magistrate Judge F.A. Gossett. (GJG)
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lJ.S. DISTRI T COURT
DISTRIC T OF HEOR :\ SKA
IN THE UNITED STATES DISTRICT COURT ,.
FOR THE DISTRICT OF NEBRASKA
i.' l 5NOV 16 PM 2: 03
OFFI ·t. :
MARTHA MURPHY, Individually and
as
duly
appointed
Personal
Representative of the Estate of John
M. "Mike" Murphy, deceased ,
Case No. 8:13-CV-155
ORDER ON FINAL PRETRIAL
CONFERENCE
Plaintiff,
vs.
EMILY R. SVOBODA and SHARON
SOLTERO and SAUL SOL TERO,
d/b/a PENNY'S FLORAL,
Defendants.
A final pretrial conference was held on the 2nd day of November, 2015.
Appearing for the parties as counsel were:
Michelle Epstein on behalf of the Plaintiff
Dave Mullin on behalf of Emily R. Snitily, f/k/a Emily R. Svoboda, and Sharon
Soltero and Saul Soltero.
(A)
Exhibits. See attached Exhibit List.
Caution: Upon express approval of the judge holding the pretrial conference for
good cause shown, the parties may be authorized to defer listing of exhibits or
objections until a later date to be specified by the judge holding the pretrial
conference. The mere listing of an exhibit on an exhibit list by a party does not
mean it can be offered into evidence by the adverse party without all necessary
evidentiary prerequisites being met.
(B)
Uncontroverted Facts. The parties have agreed that the following may
be accepted as established facts for purposes of this case only:
The parties agree to the following uncontroverted facts :
Plaintiff Martha M. Murphy is a resident of Opelika , Lee County, Alabama .
John M. "Mike" Murphy died at his home in Opelika , Alabama , on July 13, 2015.
Mr. Murphy's death certificate lists his cause of death as chronic lymphoid leukemia.
Emily R. Snitily, f/k/a Emily R. Svoboda, is a resident of Crawford, Dawes
County, Nebraska.
1
Sharon Soltero and Saul Soltero are residents of Columbus, Platte County,
Nebraska.
On October 4, 2010 John M. "Mike" Murphy was involved in an automobile
accident in Columbus, Platte County, Nebraska involving his car and a van driven by
Defendant Emily R. Snitily.
At the time of the automobile accident, Mr. Murphy was working as a contractor
for Emerson Electric in Columbus, Nebraska and was staying in Columbus.
At the time of the automobile accident, Defendant Emily R. Snitily was employed
by the Defendants Sharon Soltero and Saul Soltero, d/b/a Penny's Floral in Columbus,
Platte County, Nebraska and as part of her employment, operated a 2003 Dodge Grand
Caravan van for work-related purposes.
The van was owned by the Defendants,
Sharon Soltero and Saul Soltero, d/b/a Penny's Floral.
On October 4, 2010 , Emily Snitily was driving the van within the scope of her
employment with Penny's Floral and was driving the van with the permission of Sharon
Soltero and/or Saul Soltero.
On the day of the accident, John M. Murphy was driving his 2007 Ford Focus
vehicle westbound on Highway 30 in Columbus, Platte County, Nebraska.
Emily R.
Snitily was driving the 2003 Dodge Grand Caravan van eastbound on Highway 30 in
Columbus.
Emily R. Snitily turned the van in front of John M. Murphy's vehicle and as a
result, the Murphy vehicle collided into the passenger side of the van. After colliding
with the van , the Murphy vehicle struck a stop sign and then came to a stop in a ditch
adjacent to Highway 30.
The sole and proximate cause of the October 4, 2010 , automobile collision was
the negligence of Emily R. Snitily.
John M. "Mike" Murphy and Martha Murphy had been married for 49 years at the
time of Mr. Murphy's death.
(C)
Controverted and Unresolved Issues.
The issues remaining to be
determined and unresolved matters for the court's attention are:
2
1.
Whether the collision was a proximate cause of some damage to Mike
M. Murphy;
2.
The nature and extent of Mr. Murphy's damage;
3.
Whether the collision was a proximate cause of some damage to
Martha Murphy;
4.
The nature and extent of Mrs. Murphy's damage.
Plaintiff claims the following special damages:
Medical Expenses $44,567.57
Lost Wages:
$99,000.00
Plaintiff claims Mr. Murphy sustained the following permanent injuries as result of
the automobile accident:
1.
Permanent injury to his left knee;
2.
Permanent brain injury - specifically, injury to the pre-frontal cortex
of the brain;
3.
Permanent injury to his neck; and
4.
Permanent injury to his left wrist.
(D}
Witnesses. All witnesses, including rebuttal witnesses, expected to be
called to testify by plaintiff, except those who may be called for impeachment purposes
as defined in NECivR 16.2(c) only, are:
1.
Plaintiff Martha Murphy, 723 N. Cary Drive, Auburn, AL 36830 (will be
present at trial).
2.
Defendant Emily R. Svoboda, 313 W. Maple St., Dwight, NE 68635
(expected to be present at trial).
3.
Marie Wooldridge, 14211 Snowberry Dr., Wellington, FL 33414 (will be
present at trial).
4.
Don Young, Emerson Industrial Automation, 9377 West Higgins Road,
Rosemont, Illinois, 60018 (expected to be present at trial).
3
All witnesses expected to be called to testify by defendants, except those who
may be called for impeachment purposes as defined in NECivR 16.2(c) only, are:
Will Call
1.
Martha Murphy
723 Cary Drive
Auburn , AL 36830
2.
Emily Snitily, f/k/a Emily Svoboda
312 Annin Street
Crawford , NE 69339
Will Call
3.
Sharon Soltero
208 SE Calle Columbo
Columbus, NE 68601
Will Call
4.
Saul Soltero
208 SE Calle Columbo
Columbus, NE 68601
May Call
It is understood that, except upon a showing of good cause, no witness whose
name and address does not appear herein shall be permitted to testify over objection for
any purpose except impeachment. A witness whose only testimony is intended to
establish foundation for an exhibit for which foundation has not been waived shall not be
permitted to testify for any other purpose, over objection , unless such witness has been
disclosed pursuant to Federal Rule of Civil Procedure 26(a)(3). A witness appearing on
any party's witness list may be called by any other party.
(E)
Expert Witnesses' Qualifications.
Experts to be called by plaintiff and their qualifications are:
Dr. Raymond Godsil, Jr., Auburn Orthopedic Center 1800 Lakeside Circle,
Auburn , AL 36830. Dr. Godsil's qualifications are stipulated.
Dr. Ona Graham , PsyD, 1443 1yth St. Columbus, GA
31901.
Dr. Graham's
qualifications are stipulated.
Dr. Michael Gorum , Columbus Neurologic Institute, 1538 13th Ave. Suite 8300,
Columbus, GA 31901-2563 . Dr. Gorum's qualifications are stipulated.
Experts to be called by defendants and their qualifications are :
4
Thomas Haley, Ph.D., 12728 Augusta Avenue, Suite 150, Omaha, NE 68144.
Dr. Haley's qualifications are stipulated .
Joel Cotton, M.D., 8901 W. Dodge Road, Suite 210, Omaha, NE 68114. Dr.
Cotton's qualifications are stipulated.
(F)
Voir Dire. Counsel have reviewed Federal Rule of Civil Procedure 47(a)
and NECivR 47.2(a) and suggest the following with regard to the conduct of juror
examination:
The parties would like to conduct voir dire to the extent the Court sees fit.
(G)
Number of Jurors. Counsel have reviewed Federal Rule of Civil
Procedure 48 and NECivR 48 .1 and suggest that this matter be tried to a jury composed
of 12 members.
(H)
Verdict. The parties will stipulate to a less-than-unanimous verdict. The
parties' stipulation is: after six hours of deliberations have passed, ten or eleven jurors
may enter a verdict.
(I)
Briefs, Instructions, and Proposed Findings. Counsel have reviewed
NECivR 39.2(a), 51 .1(a), and 52.1, and suggest the following schedule for filing trial
briefs, proposed jury instructions, and proposed findings of fact, as applicable:
The parties agree that proposed jury instructions shall be filed five (5) working
days before the first day of trial.
(J)
Length of Trial. Counsel estimate the length of trial will consume not less
than 2 days, not more than 3 days, and probably about 3 days.
(K)
Trial Date. Trial is set for November 23, 2015.
5
MARTHA MURPHY, Individually and as duly
appointed Personal Representative of the
Estate of John M. "Mike" Murphy, deceased,
Plaintiff
By:
/s/ Michelle D. Epstein
Michelle D. Epstein # 21936
Jason G Ausman,# 22261
AUSMAN LAW FIRM PC LLO
1015 N. 981h St. Ste. 102
Omaha, NE 68114
Telephone: 402- 933-8140
Facsimile: 402-718-9423
m ichelle@ausmanlawfirm.com
jason@ausmanlawfirm.com
EMILY R. SVOBODA, SHARON SOLTERO
AND SAUL SOLTERO, D/B/A PENNY'S
FLORAL, Defendants
By:
/s/ David C. Mullin
David C. Mullin, #21985
FRASER STRYKER PCLLO
500 Energy Plaza
409 South 1]1hstreet
Omaha, NE 68102-2663
Telephone: (402) 341-6000
Facsimile: (402) 341-8290
Email: dmullin@fslf.com
ATTORNEYS FOR DEFENDANTS
BY THE COURT:
F.4. ~J:J;.. I
si.s, /U,:u-.J-1,::>t);
I
6
IN THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEBRASKA
MARTHA MURPHY, INDIVIDUALLY and
as SPECIAL ADMINISTRATOR OF THE
ESTATE OF JOHN M. "MIKE" MURPHY,
DECEASED,
Case No. 8:13-CV-155
Plaintiff,
JOINT EXHIBIT LIST
vs.
EMILY R. SVOBODA and SHARON
SOLTERO and SAUL SOLTERO,
d/b/a PENNY'S FLORAL,
Case Number:
Courtroom Deputy:
Court Reporter:
Defendants.
Trial Date: November 23, 2015
EXH
DESCRIPTION
NO.
1
Photograph, Mr. Murphy's vehicle post-mva
2
Photograph, Mr. Murphy's vehicle post-mva
3
Photograph, Mr. Murphy's vehicle post-mva
4
Photograph, Mr. Murphy's vehicle post-mva
5
Photograph, Mr. Murphy's vehicle post-mva
6
Photograph, Mr. Murphy's vehicle post-mva
7
Photograph, Mr. Murphy's vehicle post-mva
8
Photograph, Ms. Svoboda's vehicle post-mva
9
Photograph, Ms. Svoboda's vehicle post-mva
10
Photograph, Ms. Svoboda's vehicle post-mva
11
Deposition Transcript, Dr. Ona Graham
12
Deposition Video, Dr. Ona Graham (1)
13
Deposition Video, Dr. Ona Graham (2)
14
Curriculum Vitae, Dr. Ona Graham (Ex. 2 Dr.
Graham's Deposition)
OFF
OBJ
RCVD
NOT
RCVD
DATE
EXH
DESCRIPTION
OFF
OBJ
NO.
15
Dr. Graham 's Billing Statement (Ex. 1 Dr.
Graham 's Deposition)
16
Dr. Graham 's report/note, 1/16/13 (Ex. 3 Dr.
Graham 's Deposition)
17
Dr. Graham 's report/note , 4/4/14 (Ex. 4 Dr.
Graham 's Deposition)
18
Deposition Transcript, Dr. Michael Gorum
19
Deposition Video , Dr. Michael Gorum
20
Curriculum Vitae, Dr. Michael Gorum (Ex. 1 Dr.
Gorum 's Deposition)
21
Dr. Gorum 's Billing Statements (Ex. 2 Dr. Gorum 's
Deposition)
22
Deposition Transcript, Dr. Raymond Godsil , Jr.
23
Deposition Video , Dr. Raymond Godsil , Jr.
24
Curriculum Vitae, Dr. Raymond Godsil , Jr. (Ex. 1
Dr. Godsil's Deposition)
25
Medical Billing Statements Reviewed by Dr.
Godsil (Ex. 2 Dr. Godsil's Deposition)
26
Columbus Orthopedic & Sports Medicine Clinic
record, 10/12/10 (Ex. 3 Dr. Godsil 's Deposition)
27
Columbus Family Practice record , 10/5/1 O (Ex. 4
Dr. Godsil's Deposition)
28
Avenue Chiropractic Records , 10/13/10, 10/18/10,
11/3/10 (Ex. 5 Dr. Godsil 's Deposition)
29
The Orthopaedic Clinic records , 9/19/11 , 10/17/11 ,
10/20/11, 10/27/11 , (Ex. 6 Dr. Godsil's Deposition)
30
Advantage Chiropractic Records , 2/10/11 ,
2/11 /11 2/14/11 , 2/16/11 , 2/28/11
J
31
Auburn Orthopaedic Center Records, 1/13/11 ,
1/24/11 5/4/11 9/9/11
J
J
32
U.S. Dept. of Health & Human Services, CDC
Pamphlet "Facts for Physicians"
R,H
33
U.S. Dept. of Health & Human Services, CDC
Pamphlet, "Facts About Concussion and Brain
Injury"
R,H
2
RCVD
NOT
RCVD
DATE
EXH
DESCRIPTION
OFF
OBJ
NO.
34
Deposition Transcript, Donald Young
35
Mr. Murphy Obituary, 7/21/5
36
Women 's Hope Medical Clinic Publication ,
September 2015
37
Mike Murphy Resume
38
Emerson Electric Payments to Mike Murphy;
5/11/10-1/1/11
39
Stipulation or Summary of Business Expenses,
Mike Murphy Consulting
R,F,H
40
Murphy Family Photographs
R
100
Rule 1006 Medical Expense Summary, sorted by
provider
101
Rule 1006 Medical Expense Summary, sorted in
chronological order
102
Letter to James Rosa from John "Mike" Murphy,
dated 11/11/10
103
Brochure by Dr. Jonathan Liss regarding
Alzheimer's, MURPHY 000-601 through MURPHY
000-621
104
Proposed letter by John Michael Murphy, dated
06/10/12, MURPHY 000-622 through MURPHY
000-625
105
Driver's Motor Vehicle Accident Report by John
Michael Murphy, dated 10/06/10, MURPHY 000686 through MURPHY 000-687
106
Deposition transcript of Martha Murphy
107
Affidavit of Donald Young
108
Curriculum Vitae of Joel Cotton, M.D.
R, H
R,H
R, H
H
3
RCVD
NOT
RCVD
DATE
EXH
DESCRIPTION
OFF
OBJ
NO.
109
Deposition transcript of Dr. Joel Cotton
110
Videotape from the deposition of Dr. Joel Cotton
111
Curriculum Vitae of Thomas Haley, Ph.D.
112
Report of Thomas Haley, Ph.D.
H
113
Report of Dr. Thomas Haley, dated 01/23/15 and
the CV of Dr. Thomas Haley (Graham Depa. Exh .
5)
H
114
Office notes of Dr. Raymond Godsil (Godsil Depa.
Exh. 11)
R
115
Prehospital Care Report by Columbus Fire
Department, dated 10/04/10 (Godsil Depa. Exh .
13 and Cotton Depa. Exh . 2)
116
Office Note by Dr. Jonathan Liss , dated 01/28/13
(Cotton Depa. Exh. 6)
R
117
Record from Auburn Orthopaedic Center, dated
02/23/10
R
118
Record from Auburn Orthopaedic Center, dated
01/04/11
R
119
Record from George McCluskey, M.D. - St.
Francis Orthopaedic Institute, dated 01/19/11
R
120
Record from Auburn Orthopaedic Center, dated
04/28/11
R
121
Record from Aldridge Physical Therapy, dated
05/10/11
R
122
Record from Aldridge Physical Therapy, dated
08/02/11
R
123
Record from Aldridge Physical Therapy, dated
11/22/11
R
124
Record from Michael Gorum , M.D. - Columbus
Neurologic Institute, dated 12/07/11
R
125
Record from Michael Gorum , M.D. - Columbus
Neurologic Institute, dated 12/12/11
R
126
Record from Auburn Orthopaedic Center I The
Orthopaedic Clinic, P.C., dated 02/02/12
R
4
RCVD
NOT
RCVD
DATE
EXH
DESCRIPTION
OFF
OBJ
NO.
127
Record from Advantage Chiropractic Clinic, dated
03/07/13
R
128
Record from Brandon Johnson , M.D. , dated
12/17/13
R
129
Plaintiffs Tax Returns
130
Plaintiff John Murphy's Responses to Defendants'
First Set of Request for Production , dated
09/26/13
131
Plaintiff Martha Murphy's Verified Answers to
Defendants' First Set of Interrogatories , dated
10/10/13
132
Plaintiff John Murphy's Verified Answers to
Defendants' First Set of Interrogatories, dated
10/10/13
133
Plaintiff John Murphy's Supplemental Answers to
Interrogatories, dated 01/07/15
134
Plaintiff John Murphy's Supplemental Responses
to Requests for Production of Documents, dated
01/07/15
135
Plaintiffs Supplemental Answers to
Interrogatories, received 11 /12/15
136
Demonstrative exhibits
OBJECTIONS:
R: Relevancy
H: Hearsay
A: Authenticity
0: Other (specify)
1370739v1
5
RCVD
NOT
RCVD
DATE
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