Valiante v. United States of America

Filing 28

ORDER granting the parties' Joint 26 Motion to Continue. Non-Jury Trial set for 1/19/2016 at 09:00 AM in Courtroom 3, Roman L. Hruska Federal Courthouse, 111 South 18th Plaza, Omaha, NE before Senior Judge Joseph F. Bataillon. Pretrial Conference set for 12/18/2015 at 10:00 AM in Chambers before Magistrate Judge Thomas D. Thalken. Ordered by Magistrate Judge Thomas D. Thalken. (MKR)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
PETER J. VALIANTE,
Plaintiff,

8:14CV56

vs.
UNITED STATES OF AMERICA,

ORDER

Defendant.
This matter is before the court on the parties’ Joint Motion for Continuance (Filing
No. 26). The court held a telephone conference on February 9, 2015, to discuss the
motion. Terry Sibbernsen represented the plaintiff. Assistant U.S. Attorney Timothy R.
Hook represented the defendant. Upon consideration,

IT IS ORDERED:
The parties’ Joint Motion for Continuance (Filing No. 26) is granted as set forth
below.

IT IS FURTHER ORDERED: The provisions of the court’s earlier progression
order remain in effect, and in addition to those provisions, the following shall apply:
1.

Disclosure of Expert Witnesses.1

The plaintiff shall, as soon as

practicable but not later than May 19, 2015, serve the defendant with the statement
required by Fed. R. Civ. P. 26(a)(2) regarding each expert witness he expects to call to
testify at trial pursuant to the provisions of Rule 702, 703 or 705, Fed. Rules of
Evidence. The 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 June 18,
2015.

If necessary to refute the disclosed opinions of an expert witness of the

defendant, the plaintiff may disclose additional expert witnesses not later than July 16,

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).

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disclosures, if originally made prior to these deadlines, shall be made on these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.
2.

Pretrial Disclosures.2 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.

Witnesses - On or before October 16, 2015: 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.
b.

Deposition Testimony and Discovery - On or before November

20, 2015: The designation of discovery testimony and discovery responses
intended to be utilized at trial.
c.

Trial Exhibits - On or before December 4, 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.
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,
phone numbers, and other personally identifying information of witnesses, but shall serve an unredacted
version on opposing parties. See NECivR 5.3.
2

3.

Motions in Limine.
a.

Motions in limine challenging the admissibility of expert testimony at

trial under Fed. R. Evid. 702 shall be filed by August 14, 2015. See Kumho Tire
Co., Ltd. v. Carmichael, 526 U.S. 137 (1999); Daubert v. Merrell-Dow
Pharms., 509 U.S. 579 (1993).

The motions should be 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

11, 2015.
4.

The Final Pretrial Conference with the undersigned magistrate judge is

set for December 18, 2015, at 10:00 a.m. in chambers, Suite 2271, 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 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.
5.

Settlement.
a.

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.

3

All personal information should be redacted from the public version of the order and/or attachments
filed with the clerk. See NECivR 5.3.
3

b.

In the event the parties 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.
c.

Notice of settlement shall be given to the trial judge’s office as soon

as practicable.
6.

A Non-Jury Trial is set to commence, at the court’s call, on January 19,

2016, in Omaha, Nebraska, before the Honorable Joseph F. Bataillon.
7.

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 this 9th day of February, 2015.
BY THE COURT:
s/ Thomas D. Thalken
United States Magistrate Judge

4