Pilmaier v. Omaha Public Power District

Filing 49

SECOND AMENDED ORDER SETTING FINAL SCHEDULE FOR PROGRESSION OF CASE, granting 48 Joint Motion for Continuance. Pretrial Conference set for 4/18/2016 at 11:00 AM in Chambers before Magistrate Judge F.A. Gossett. Jury Trial set for 5/16/2016 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

SECOND AMENDED ORDER
SETTING FINAL SCHEDULE FOR
PROGRESSION OF CASE

This case is before the court on the Joint Motion for Continuance of Progression
Schedule (#48). 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 December 15, 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 December 1, 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 December 1, 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:
a. Nonexpert Witnesses - On or before January 15, 2016: 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.

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).
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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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 January 15, 2016: 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 December 1, 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 January 15, 2016.

6. The Final Pretrial Conference with the undersigned magistrate judge is set for
April 18, 2016, at 11:00 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
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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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,
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 May 16,
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
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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: October 22, 2015.
BY THE COURT:

s/ F.A. Gossett, III
United States Magistrate Judge

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