Denniston v. Conagra Foods, Inc.

Filing 48

THIRD AMENDED ORDER SETTING FINAL SCHEDULE FOR PROGRESSION OF CASE - This matter is before the Court on the Joint Motion to Continue Trial and Extend Deadlines. (Filing No. 47 .) The motion is granted. Dispositive motions shall be filed not later th an March 15, 2018. The Final Pretrial Conference with the assigned magistrate judge is set for September 28, 2018, at 1:30 p.m. in chambers, 111 South 18th Plaza, Suite 2271, Roman L. Hruska United States Courthouse, Omaha, Nebraska. A four (4) day j ury trial is set to commence, at the Court's call, during the week of October 22, 2018, in Omaha, Nebraska, before Senior United States District Court Judge Joseph F. Bataillon. Unless otherwise ordered, jury selection shall be at the commencement of trial. Ordered by Magistrate Judge Susan M. Bazis. (KLF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA

BARBARA DENNISTON,
Plaintiff,
vs.
CONAGRA FOODS, INC.,

8:15CV463
THIRD AMENDED ORDER
SETTING FINAL SCHEDULE
FOR PROGRESSION OF CASE

Defendant.
This matter is before the Court on the Joint Motion to Continue Trial and Extend
Deadlines. (Filing No. 47.) The motion is granted.
Accordingly, progression will proceed as follows:
1.
Dispositive Motions. Dispositive motions shall be filed not later than March 15,
2018. See NECivR 56.1 and NECivR 7.1.
2.

Discovery Deadlines:
a. Non-Expert Witness Deposition Deadline. All non-expert depositions,
whether or not they are intended to be used at trial, shall be completed by
March 1, 2018.
b. Expert Witness Deposition Deadline. Expert witness depositions, whether
or not they are intended to be used at trial, shall be completed by April 30,
2018.
c. 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 February 13, 2018. 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.
d. Discovery Motions. Discovery motions shall be filed not later than January
12, 2018, 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 7.1(i). Motions
to compel shall not be filed without first contacting the chambers of the

undersigned magistrate judge to set a conference to discuss the parties’
dispute.
3.
Disclosure of Expert Witnesses.1 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 February 15, 2018. If necessary to refute the
disclosed opinions of an expert witness of an opponent, a plaintiff, counter-claimant, or crossclaimant may disclose additional expert witnesses not later than April 30, 2018, 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. Non-expert Witnesses - On or before August 31, 2018: 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 August 31, 2018: 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.
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), unless such treating physician is going to offer an opinion beyond the medical records.
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 5.3.

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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 May 22, 2018, 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 September 21, 2018.

6.
The Final Pretrial Conference with the assigned magistrate judge is set for
September 28, 2018, at 1:30 p.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 16.2.3 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 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

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.

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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 four (4) day jury trial is set to commence, at the Court's call, during the week
of October 22, 2018, in Omaha, Nebraska, before Senior United States District Court Judge
Joseph F. Bataillon. 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 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.
IT IS SO ORDERED.
Dated this 15th day of November, 2017.
BY THE COURT:
s/ Susan M. Bazis
United States Magistrate Judge

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