Jenks et al v. New Hampshire Motor Speedway, Inc. et al

Filing 152

ORDER: Jury Selection/Trial set for 7/17/2012 09:30 AM before Judge Joseph A. DiClerico Jr. Motions re continuing duty to warn due by 3/14/2012; Follow up on Objection on 3/23/2012; Follow up on Reply on 3/30/2012; Follow up on Surreply on 4/6/2012. Notice of Compliance Deadline set for 5/1/2012 for notice re claims and cross claims. Miscellaneous Deadline set for 6/1/2012 re joint proposed jury instructions and joint proposed special interrogatories and/or verdicts. Counsel to confer and file request for mediation at such time as they deem appropriate. So Ordered by Judge Joseph A. DiClerico, Jr.(dae)

UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEW HAMPSHIRE
Melissa Jenks, Individually
and as g/n/f of Roderick Jenks
v.

Civil No. 09-cv-205-JD

New Hampshire Motor Speedway,
Breann Thompson, and Textron, Inc.
v.
A.B.L, Inc.
O R D E R
The court held a telephone conference on February 22, 2012,
to discuss scheduling and other issues in this case.

I.

Trial Schedule
The trial is rescheduled to July 17, 2012.

will begin at 9:30 a.m..

Jury selection

Evidence will begin following jury

selection.

II.

Pretrial Materials and Schedule
The final pretrial conference will be held on a date and at

a time to be set by the court, with notice to counsel.

A.

Continuing Duty to Warn

An issue remains in the case as to whether New Hampshire law
would recognize a continuing duty to warn as provided under the

Restatement (Third) of Torts:
other legal principles.

Product Liability § 10, or under

Parties asserting a continuing duty to

warn shall file motions with supporting memoranda of law, not to
exceed fifteen pages, on or before March 14, 2012.

Any

objections and supporting memoranda, not to exceed fifteen pages,
shall be filed on or before March 23, 2012.
Replies, not to exceed ten pages, shall be filed on or
before March 30, 2012.
Surreplies, not to exceed ten pages, shall be filed on or
before April 6, 2012.

B.

Claims and Cross Claims

Counsel shall review the claims and cross claims in order to
determine whether any can be eliminated or resolved by agreement
or stipulation.

Counsel shall file a notice with the court on or

before May 1, 2012, designating which claims or cross claims, if
any, have been eliminated or resolved.
The parties agree that third-party defendant, Textron
Financial Services, Inc. is no longer a party in this case.

C.

Jury Instructions

In lieu of separate requests for jury instructions, counsel
shall use their best efforts to agree on a set of jury

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instructions and on the order in which those instructions will be
given.

Counsel shall address only the substantive instructions

that relate to each claim and cross claim.

There is no need to

address boilerplate instructions that are commonly given by the
court.
The court expects counsel to keep any disagreements to a
minimum.

With respect to any particular instruction or part

thereof about which there is a disagreement, counsel shall
present their alternative versions, identifying the party who is
requesting that version.

Each instruction shall convey the law

in a neutral manner, and counsel shall not request instructions
that are argumentative in nature.

The joint proposed jury

instructions shall be filed as a separate document on or before
June 1, 2012.

D.

Verdict Form

It is likely that this case will require special
interrogatories and/or verdicts.

Counsel shall agree on a form

of special interrogatories and/or verdicts to be submitted to the
jury.
Counsel are expected to keep their disagreements to a
minimum and in the event there are disagreements, counsel shall
present their alternative versions, identifying the party who is

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proposing that version.

The joint proposed special

interrogatories and/or verdicts shall be filed on or before June
1, 2012.

III.

Mediation
Counsel are continuing to discuss settlement and agreed that

mediation through the court might at some point be helpful in
resolving all or part of the case.

To pursue that option,

counsel shall confer and file a request for mediation at such
time as they deem appropriate.

SO ORDERED.

____________________________
Joseph A. DiClerico, Jr.
United States District Judge
February 22, 2012
cc:

R. Matthew Cairns, Esquire
James M. Campbell, Esquire
R. Peter Decato, Esquire
Dona Feeney, Esquire
Mark V. Franco, Esquire
Neil A. Goldberg, Esquire
John A.K. Grunert, Esquire
Daniel R. Mawhinney, Esquire
David S. Osterman, Esquire
Christopher B. Parkerson, Esquire
Michael D. Shalhoub, Esquire
William A. Whitten, Esquire

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