United States of America for the use of Donald B. Murphy Contractors v. Travelers Casualty and Surety Company of America et al

Filing 207

ORDER AND EIGHTH AMENDED FINAL PROGRESSION ORDER granting in part and denying in part the 204 Motion to Amend as set forth within the order. The Final Pretrial Conference is set for August 22, 2017 at 11:00 a.m. in chambers with the assigned magistrate judge. Jury Trial is set to commence at the court's call, during the week of September 18, 2017 before the Honorable Joseph F. Bataillon. Ordered by Magistrate Judge Susan M. Bazis. (MKR)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
UNITED STATES OF AMERICA FOR THE
USE OF DONALD B. MURPHY
CONTRACTORS, a Washington corporation;

8:15CV48

Plaintiff,
vs.
TRAVELERS CASUALTY AND SURETY
COMPANY OF AMERICA, a Connecticut
corporation (Bond No. 041-SB-105826131;
TRAVELERS INDEMNITY COMPANY, a
Connecticut corporation (Bond No. 041-SB105826131; KIEWITPHELPS, a joint venture;
and DRAKE-WILLIAMS STEEL, INC.,

ORDER
AND EIGHTH AMENDED FINAL
PROGRESSION ORDER

Defendants.
This matter is before the Court following a telephonic conference held on May 4, 2017.
During the conference, the parties discussed KiewitPhelps’ Motion to Compel (Filing No. 183), as
well as KiewitPhelps’ Motion to Amend Progression Order Deadlines (Filing No. 204.)
In accordance with the discussion had during the telephone conference, the Motion to Amend
Progression Order Deadlines (Filing No. 204) is granted, in part, as set forth below.
Accordingly,
IT IS ORDERED as follows:
1.
Plaintiff Donald B. Murphy Contractors (“DBM”) shall produce the 200 or so
documents that it has withheld from production for in camera review by the Court. DBM shall
provide the Court with hard and electronic copies of the documents no later than May 18, 2017.
DMB shall also update its privilege log and provide a copy of the updated log to all parties and the
Court.
2.
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 July 25, 2017: The name, address and
telephone number1 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 July 25, 2017: 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.
3.

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 April 17, 2017, 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 August 15, 2017.

4.
The Final Pretrial Conference with the assigned magistrate judge is set for August
22, 2017, at 11:00 a.m. in chambers, 111 South 18th Plaza, Suite 2271, 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 16.2.2 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

1

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.
2

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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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.

Mediation and Settlement:
a. If the parties intend to mediate their dispute, notice of the mediation shall be
given to the staff of the assigned 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.

6.
A thirteen (13) day jury trial is set to commence, at the court’s call, during the
week of September 18, 2017, Nebraska, before the Honorable Joseph F. Bataillon, United States
District Judge. Unless otherwise ordered, jury selection shall be at the commencement of trial.
7.
Motions to Alter Dates. All requests for changes of deadlines or settings established
herein shall be directed to the assigned 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 4th day of May, 2017.
BY THE COURT
s/ Susan M. Bazis
United States Magistrate Judge

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