Pilmaier v. Omaha Public Power District

Filing 47

AMENDED ORDER SETTING FINAL SCHEDULE FOR PROGRESSION OF CASE, granting 46 Joint Motion for Continuance of Progression Schedule. Pretrial Conference set for 2/12/2016 at 09:30 AM in Chambers before Magistrate Judge F.A. Gossett. Jury Trial set for 3/14/2016 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. (ARL, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
TIMOTHY PILMAIER,
Plaintiff,
vs.
OMAHA PUBLIC POWER DISTRICT, a
political subdivision,
Defendant.

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Case No. 8:13CV349

AMENDED ORDER SETTING
FINAL SCHEDULE FOR
PROGRESSION OF CASE

This case is before the court on the Joint Motion for Continuance of Progression
Schedule (#46). The motion will be granted.
IT IS ORDERED that the provisions of the court's earlier, initial progression order
remain in effect, and in addition to those provisions, the following amended deadlines shall
apply:
1.

Motions for Summary Judgment. Motions for summary judgment shall be filed

not later than November 1, 2015. See NECivR 56.1 and 7.0.1.
2.

Discovery Deadlines:

a. Deposition Deadline. All depositions, whether or not they are intended to
be used at trial, shall be completed by October 15, 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 October 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 April 24,
2015, 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).
3. Disclosure of Expert Witnesses.1 Each plaintiff, counter-claimant, and
cross-claimant shall, as soon as practicable but not later than August 1, 2015, 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 August 17, 2015. 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 September 16, 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. 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:

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).
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a. Nonexpert Witnesses - On or before December 14, 2015: The name,
address and telephone number2 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 at this
time.
c. Trial Exhibits - On or before December 14, 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, see Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137 (1999), and
Daubert v. Merrell-Dow Pharmaceuticals, 509 U.S. 579 (1993), shall be filed by
October 15, 2015, and 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 December 1, 2015.

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, telephone numbers, and other personally identifying information of witnesses, but shall
serve an unredacted version on opposing parties. See NECivR 5.0.3.
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6. The Final Pretrial Conference with the undersigned magistrate judge is set for
February 12, 2016, at 9:30 A.M. in chambers, 111 South 18th Plaza, Suite 2210, Roman L.
Hruska United States Courthouse, 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.
7.

Mediation and Settlement:

a. If the parties intend to 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.
b. 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.
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 case settles and
notice of settlement is not given in sufficient time to avoid summoning a jury,

3

All personal information should be redacted from the public version of the order and/or
attachments filed with the Clerk. See NECivR 5.0.3.
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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
8. A jury trial is set to commence, at the court's call, during the week of March 14,
2016, in Omaha, Nebraska, before the Honorable Joseph F. Bataillon, Senior United
States District Judge. Unless otherwise ordered, jury selection shall be at the commencement
of trial.
9. 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: July 6, 2015.
BY THE COURT:
s/ F.A. Gossett, III
United States Magistrate Judge

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