Acosta v. United States of America

Filing 74

PRETRIAL ORDER by Magistrate Judge Stephan M. Vidmar. (sg)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
JOSE ACOSTA, Jr.,
Plaintiff,
v.

No. 15-cv-0530 SMV/LAM

UNITED STATES OF AMERICA,
Defendant.
PRETRIAL ORDER
THIS MATTER is before the Court pursuant to Fed. R. Civ. P. 16.

I. APPEARANCES
Attorneys who will try this action:
For Plaintiff:

Jonathan S. Harris
Laura B. De La Cruz
Schechter, McElwee, Shaffer & Harris, LLP
3200 Travis, 3rd Floor
Houston, Texas 77006
Telephone:
[phone]
Facsimile:
[phone]
[e-mail]
[e-mail]

For Defendant:

Manuel Lucero
Assistant United States Attorney
District of New Mexico
201 3rd Street, Suite 900
Albuquerque, New Mexico 87103
Telephone:
[phone]
Facsimile:
[phone]
[e-mail]

II. JURISDICTION AND RELIEF SOUGHT
A.

Subject Matter Jurisdiction
1. Was this action removed or transferred from another forum?
____ Yes

X No

2. Is subject matter jurisdiction of this Court contested?
X Uncontested ____ Contested
3. Asserted basis for jurisdiction
____ Federal Question ____ Diversity X

Other

Statutory Provision(s) Invoked: 28 U.S.C. § 1346(b)
B.

Personal Jurisdiction and Venue
1. Is personal jurisdiction contested?
X Uncontested ____ Contested
2. Is venue contested?
X Uncontested ____ Contested

C.

Are the proper parties before the Court?
X Uncontested ____ Contested

D.

Identify the affirmative relief sought in this action.
1. Plaintiff seeks: Plaintiff seeks damages for physical pain and mental anguish in the
past and future; lost earnings in the past and loss of future earning capacity; physical
impairment in the past and future; physical disfigurement in the past and future; and,
reasonable medical expenses in the past and future. Plaintiff also seeks damages for his

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injuries by way of pre-judgment and post-judgment interest payments for all damages he
has suffered and have accrued by the time of judgment.
2. Defendant seeks: Final judgment in favor of Defendant, dismissal of the above-styled
and numbered cause of action in its entirety with prejudice, Defendant’s costs, if any, and
all such other, further and different relief, at law or in equity, to which Defendant may be
entitled.

III. BRIEF DESCRIPTION OF NATURE OF CLAIMS/DEFENSES
A.

Plaintiff’s claims:

This is a personal injury claim stemming from a Union Pacific

train colliding with a U.S. Army vehicle that was crossing the train tracks on June 25, 2014 in
the state of New Mexico. At the time of the incident, Plaintiff was operating the locomotive. The
United States Army was participating in a military convoy when a U.S. Army truck stopped and
left part of its truck on the railroad tracks. Plaintiff attempted to stop the locomotive, but it
ultimately crashed into the military truck. The impact of the collision between the military truck,
weighing at least 53,100 lbs., and the locomotive caused the military truck to be lifted from the
ground. As a result of the impact, Plaintiff’s body was thrusted forward, causing him to strike the
throttle, and then thrusted backwards, causing him to hit the wall. The impact caused Plaintiff to
sustain injuries to his body, including, his head, lower back, neck, knees, and shoulders.
Plaintiff alleges that the United States Army failed to yield the right of way at the
crossing and violated the Railroad-Highway Grade Crossing rules. Plaintiff contends that on the
occasion in question, Defendant violated the duty owed to Plaintiff to exercise ordinary care in
the operation of a motor vehicle. Plaintiff alleges that the Defendant is liable for the actions of its
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governmental personnel and employees, who were acting in the course and scope of their
employment in furtherance of the interests of Defendant. Plaintiff alleges the Defendant was
negligent by operating a vehicle without paying adequate attention, by failing to control speed,
by failing to clear all vehicles from an active railroad track, by leaving a vehicle on an active
railroad track, and by failing to maintain a lookout for Plaintiff. Defendant’s actions or omissions
in the occurrence constitute negligence and negligence per se. Said negligence proximately
caused the occurrence and Plaintiff’s injuries and damages.
B.

Defendant’s defenses: On June 25, 2014 the United States Army was transferring

equipment from New Mexico to Oklahoma via convoy. While passing through Alamogordo,
New Mexico the convoy was crossing railroad tracks in the city when the convoy came to a stop.
One vehicle was stopped on the tracks when they realized a train was approaching. Military
personnel exited the vehicle to help guide the driver off the tracks. The vehicle was moved off
the tracks to a point where they believed the train could pass. The train scraped by the vehicle
causing minor damage to the military vehicle and the train. No claim for property damage has
been made by the railroad regarding the train. If any physical injury to the Plaintiff is claimed,
the injuries would be minimal based on the physics of the impact. There is no causal connection
between the minimal impact and injuries claimed by the Plaintiff.
Defendant further asserts the following specific defenses in this matter:
1.

Defendant, through its employees, agents, and servants, acted at all relevant times

with due care and diligence, and, therefore, Defendant could not have breached any actionable
duty owed to Plaintiff.

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2.

Defendant affirmatively asserts that Plaintiff has failed to state a claim upon

which the relief they seek may be based and, further, Defendant denies that Plaintiff is entitled to
any relief arising from any of the events as alleged in the Complaint.
3.

The injuries and damages alleged by Plaintiff in the Complaint, which injuries

and damages are denied, were not proximately caused by a negligent or wrongful act or omission
of an employee, agent, or agency of the United States acting in the scope of his federal
employment.
4.

Any injuries and damages allegedly sustained by Plaintiff, were due, in whole or

part, to Jose Acosta’s own negligent acts or omissions, or those of others, known or unknown,
over whom Defendant had no control.
5.

If Defendant was negligent, which is expressly denied, under the FTCA, the

comparative negligence or fault of Jose Acosta should be used to offset in whole or in part any
recovery by Plaintiff against Defendant, and Defendant may only be held responsible for its
proportionate share of the fault, if any. Defendant affirmatively asserts that, to the extent
Plaintiff may or will recover monies and/or benefits from the United States government for
injuries they sustained based on the same set of facts at issue in this case, Defendant is entitled to
an offset of any award made herein.
6.

Plaintiff has failed to mitigate any damage claims that relate to future employment

claims raised in the administrative claim or at trial.

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IV. FACTUAL CONTENTIONS UNDERLYING CLAIMS/DEFENSES
A.

Stipulated Factual Contentions
The parties agree to the following facts listed separately below:
1.

The incident forming the basis of this lawsuit took place on June 25, 2014 in

Alamogordo, New Mexico.
2.

At the time of the incident, Plaintiff was an engineer aboard a Union Pacific train

traveling on the railroad tracks in Alamogordo, New Mexico.
3.

At the time of the incident, the United States Army was participating in a military

convoy that was transferring equipment from New Mexico to Oklahoma.
B.

Contested Material Facts
1. Plaintiff’s Contentions:
a. At, or immediately prior to, the time of the incident, the military convoy in
question came to a stop on the railroad tracks.
b. At, or immediately prior to, the time of the incident, a U.S. Army truck was
left with its rear extending onto the on the railroad tracks.
c. Immediately prior to the incident, Plaintiff repeatedly sounded his whistle and
applied the emergency brakes to avoid a collision.
d. At the time of the incident, the United States Army failed to yield the right of
way at the crossing.
e. At the time of the incident, Defendant violated the Railroad-Highway Grade
Crossing rules.
f. At the time of the incident, Defendant failed to control speed.
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g. Prior to crossing, the Defendant failed to clear all vehicles from the active
railroad track.
h. At the time of the incident, Defendant failed to maintain a proper lookout for
Plaintiff.
i. During the incident, the Union Pacific train and Army truck collided.
j. At the time of the occurrence, Defendant failed the duty it owed to Plaintiff to
exercise ordinary care in the operation of a vehicle.
k. Defendant’s acts and omissions in the occurrence constitute negligence and/or
negligence per se.
l. Defendant’s negligent conduct was the proximate cause of the occurrence at
issue.
m. Defendant’s acts or omissions are the proximate cause of the injuries and
damages sustained by the Plaintiff.
n. At the time of the occurrence, Defendant failed the duty it owed to Plaintiff to
keep a proper lookout and maintain proper control of its vehicle.
o. At the time of the occurrence, Jaimie Klinger was operating the military
vehicle in the course and scope of her employment with Defendant and in
furtherance of the Defendant’s interests.
p. The military vehicle in question weighs 53,100 lbs. empty.
q. The impact from the collision between the military vehicle and train caused the
military truck to come off the ground.

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r. At the time of the impact, Plaintiff was thrown forwarded, and he impacted the
throttle stand, which was followed by Plaintiff being thrown backwards and
striking the wall.
s. The impact from the collision was sufficient to cause Plaintiff to be thrusted
forward and then backwards in the cab.
t. The impact from the collision proximately caused Plaintiff’s injuries.
u. There was sufficient force in the collision event to account for all of Plaintiff’s
post-crash diagnosed injuries.
v. As a result of the incident forming the basis of this suit, Plaintiff sustained
injuries to his head, cervical spine, lumbar spine, bilateral shoulders, bilateral
knees, anxiety disorder and/or depression, and related erectile dysfunction.
w. As a result of the incident forming the basis of this suit, Plaintiff has incurred
past medical and pharmaceutical expenses in the amount of $368,101.82.
x. The past medical and pharmaceutical services provided to Plaintiff as a result
of this incident were medically necessary, and the amount charged for said care
was reasonable.
y. As a result of the incident forming the basis of this suit, Plaintiff will require
future medical care in the amount of $829,960.63.
z. The present day cost of Plaintiff’s future medical care needs is $859,095.
aa. As a result of the incident forming the basis of this suit, Plaintiff has suffered
a past and future loss in earning capacity in the total amount of $1,723,135.

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bb. As a result of the injuries sustained by Plaintiff in the incident forming the
basis of this suit, Plaintiff is medically precluded from returning to work as a
locomotive engineer of trainman.
cc.

Once Plaintiff reaches maximum medical recovery from the injuries he

sustained in the incident, Plaintiff will be limited to alternative employment
options in selective, sedentary to light jobs.
2. Defendant’s Contentions:
a. New Mexico law provides that a party who seeks to prevail in a negligence
action must prove “the existence of a duty from the defendant to a plaintiff,
breach of that duty, which is typically based upon a standard of reasonable care,
and the breach being a proximate cause and cause in fact of the plaintiff’s
damages.” Lessard v. Coronado Paint and Decorating Center Inc., 142 N.M.
583, 168 P.2d 155 (Ct. App. 2007).
b. As to motor vehicle operators in particular, every driver has the duty, at all
times, to keep a proper lookout and to maintain control of his or her vehicle so as
to avoid placing the driver or other persons in danger and to avoid an accident.
Lopez v. Maes, 81 N.M. 693, 472 P.2d 658 (Ct. App.), cert. denied, 81 N.M. 721,
472 P.2d 984 (1970); See also N.M. UJI 13-1202: “It is the duty of every operator
of a vehicle, at all times, to keep a proper lookout and to maintain proper control
of his vehicle so as to avoid placing the operator and others in danger and to
prevent an accident.” It is the driver’s duty to exercise ordinary care to see what
is to be seen. Lopez v. Maes, 81 N.M. 693, 699, 472 P.2d 658 (Ct. App.), cert.
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denied 81 N.M. 721, 472 P.2d 984 (1970).

However, maintaining a proper

lookout involves a duty to observe matters in plain sight. Sheraden v. Black, 107
N.M. 76, 752 P.2d 791 (Ct. App. 1988) (emphasis added).
c. Defendant’s employee, Cpl. Klinger, owed a duty to operate her vehicle in a
safe and prudent manner, and it is Defendant’s position that she did so in this
case.
d. Based upon the investigation and the physical evidence documented at the
scene, it appears that the train operated by Plaintiff made minimal contact with the
military vehicle and the scraping of the military vehicle did not, slow, stop or
impede the progress of the locomotive operated by Plaintiff and could not have
caused the injuries claimed to have been sustained by Plaintiff.
e. The claims that Plaintiff was thrown around in the cab of the locomotive at the
time of impact is physically impossible based on the mass to impact calculations.
Further, the event recorder and the physical damage to the vehicles and lack of
injury to the conductor who was seated less than three feet away from the Plaintiff
clearly show that Plaintiff suffered no injuries.
f. The medical treatments and associated costs incurred by Plaintiff were not
medically necessary and were not caused by the impact of the locomotive with the
military vehicle.
g. The Plaintiff was offered a job by the Union Pacific Railroad corresponding to
the alleged limitations needed by the Plaintiff at a salary commensurate with the
position, which he rejected. Plaintiff has not done anything to mitigate the lost
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wage claim in any form and any claim for lost wages past and future should be
struck.
h. Plaintiff has failed to show why he cannot return to work as an engineer or
return to work in any capacity as a trainman even if he had limitations that were
proven at trial.
i. NMSA 1978 § 41-3A-1 provides that: “In causes of action to which several
liability applies, any defendant who establishes that the fault of another is a
proximate cause of a plaintiff’s injury, shall be liable only for that portion of the
total dollar amount awarded as damages to the plaintiff that is equal to the ratio of
such defendant’s fault.”

V. APPLICABLE LAW
A.

Do the parties agree which law controls the action?
X Yes (as indicated below) ____ No (as indicated below)
If yes, identify the applicable law:

New Mexico state law regarding negligence;

Federal Tort Claims Act, including 28 USC §§ 1346(b), 2671–80.
If no, identify the dispute, and set forth each party’s position regarding the
applicable law.
1. Plaintiff:
2. Defendant:

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VI. CONTESTED ISSUES OF LAW
Identify the specific issues of law that are contested.
1. Plaintiff:
a. At the time of, and leading up to, the incident in question, Defendant was
negligent.

Defendant’s actions and/or omissions in the incident in question

constitute negligence per se.
b. Defendant’s negligence proximately caused the collision between the
locomotive and U.S. Army truck.
2. Defendant: None.

VII. MOTIONS
A.

Pending Motions:
1. Plaintiff: None. On February 28, 2017, the Court denied Plaintiff’s Motion to
Exclude Expert Testimony of Dr. John F. Wiechel. [Doc. 55].
2. Defendant: None.

B.

Motions that may be filed:
1. Plaintiff:

Plaintiff does not anticipate filing any other motions at this time.

2. Defendant: Possible Motion in Limine.
The deadline for filing motions has passed. See [Doc. 20].

VIII. DISCOVERY
A.

Has discovery been completed?

X Yes ____ No
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B.

Are there any discovery matters of which the Court should be aware?
1. Plaintiff:

None

2. Defendant: None

IX. ANTICIPATED WITNESSES
Each party is under a continuing duty to supplement this list and the description of
anticipated testimony. This does not, however, apply to a rebuttal witness. Indicate if the
witness will testify in person or by deposition, and include a brief description of the anticipated
testimony. If the testimony is by deposition, identify the deposition by page number and line
number. A witness who has not been identified and whose testimony has not been disclosed may
not testify at trial unless good cause is shown.
A.

Plaintiff’s Witnesses [Docs. 60, 65]:
1. Plaintiff will call, or make available, the following witnesses at trial:
a. Amanda Snapp
Amanda Snapp is an eyewitness to the collision at issue. Ms. Snapp is
expected to testify regarding her knowledge of the facts and circumstances
surrounding the incident. Ms. Snapp will not appear in person; she will
testify by introduction of her previously transcribed and videotaped
deposition testimony.
b. Douglas Snapp
Douglas Snapp is an eyewitness to the collision at issue. Mr. Snapp is
expected to testify regarding his knowledge of the facts and circumstances
surrounding the incident. Mr. Snapp will not appear in person; he will
testify by introduction of his previously transcribed and videotaped
deposition testimony.
c. Fermin Acosta
Fermin Acosta is an eyewitness who was riding as a conductor aboard the
train at the time of the collision. Fermin Acosta is expected to testify
regarding his knowledge of the facts and circumstances surrounding the
incident, his knowledge of the Plaintiff, his experience and duties as a
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railroad worker, and any other relevant matters. Fermin Acosta will appear
in person.
d. Michael D. Freeman, MedDr, PhD, MPH, FAAFS
Dr. Freeman is a doctor of medicine and an epidemiologist, with expertise
in the fields of forensic medicine and forensic epidemiology. For crash
related causation assessments, he has additional qualifications in the fields
of crash reconstruction and injury biomechanics. He has conducted an
analysis to determine whether the crash made the basis of this case caused
the injuries alleged by Mr. Acosta. Dr. Freeman is expected to testify as to
fact and opinion regarding the mechanism of injury in the incident at issue
and the injuries sustained by Mr. Acosta. Dr. Freeman will appear in
person.
e. Angelo Romagosa, M.D., FAAPMR
Dr. Romagosa is a certified vocational specialist, certified rehabilitation
specialist and certified life care planner who will testify to fact and
opinion regarding Mr. Acosta’s life care/medical needs in the past and
future. He is expected to testify the past and future medical/life care needs
outlined in his report are reasonable and necessary as a result of the
incident made the basis of this suit. He is also expected to testify that the
costs he has outlined are reasonable, necessary and customary charges for
the services he opines are necessary. Dr. Romagosa may also testify to fact
and opinion regarding Mr. Acosta’s medical and functional limitations,
both past and present. Dr. Romagosa will appear in person.
f. Stephanie Acosta
Stephanie Acosta is Plaintiff’s wife. She is expected to testify over her
knowledge of Plaintiff’s condition, both physical and otherwise, before
and after the accident at issue, and Plaintiff’s injuries. Ms. Acosta will
appear in person.
g. Elvia C. Antunez
Elvia Antunez is Plaintiff’s sister. She is expected to testify over her
knowledge of Plaintiff’s condition, both physical and otherwise, before
and after the accident at issue, and Plaintiff’s injuries. Ms. Antunez will
appear in person.

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h. Enrique Guerra Jr.
Enrique Guerra is Plaintiff’s co-worker and friend. He is expected to
testify over his knowledge of Plaintiff’s physical condition before and
after the accident. Mr. Guerra will appear in person.
i. Sgt. Jaimie Klinger, 1-14 FA
Sgt. Klinger was the driver of the U.S. Army convoy truck at the time of
the collision. Sgt. Klinger is expected to testify regarding her knowledge
of the facts and circumstances surrounding the incident. Sgt. Klinger will
appear in person.
j. William L. Quintanilla, M.Ed., L.P.C.
William Quintanilla is a vocational rehabilitation expert, and he will
testify to fact and opinion regarding the damages at issue in this case. His
opinion is essentially that Mr. Acosta sustained loss of vocational
opportunities in the past and future. Mr. Quintanilla will appear in person.
k. Kenneth G. McCoin, Ph.D., C.F.A.
Dr. McCoin is a forensic economist, and he will testify to fact and opinion
regarding the damages at issue in this case. His opinion is that Mr. Acosta
sustained loss of earnings in the past and future. He may also reduce the
projected costs of future medical care to the present value. Dr. McCoin
will appear in person.
l. Jose Acosta, Plaintiff
Mr. Acosta is the Plaintiff in this matter and has knowledge regarding the
facts surrounding the accident, his injuries and their effect on his life, and
his experience as a railroad worker, Plaintiff may also testify over his
knowledge on all aspects of economic losses suffered as a result of the
incident forming the basis of this lawsuit. Mr. Acosta will appear in
person.
2. Plaintiff may call:
m. Brannon Dominic Jordan
Plaintiff’s friend with knowledge of Plaintiff’s physical condition before
and after the accident. If he is called to testify, Brandon Dominic Jordan
will appear in person.
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B.

Defendant’s Witnesses [Doc. 57]:
1. Defendant will call or make available at trial the following witnesses:
a. Sgt. Jaimie Klinger
Operator of the U.S. army truck with knowledge of the facts and
circumstances surrounding the incident. Will Appear in person.
b. Dr. John Wiechel
Biomechanical engineer/accident reconstruction. He has conducted a study
of the accident, by reviewing the Plaintiffs medical filed, the investigative
report by the Union Pacific, the Alamogordo police, the Event reorder
from the locomotive and the expert reports of the Plaintiff. He will testify
as an expert and offer his opinion with respect to the accident and the
forces present in the locomotive and how they affected the Plaintiff. Will
Appear in person.
c. Dr. William Wellborn
Expert testimony on claimed injuries and treatment provided to Plaintiff.
Will Appear in person.
d. Janet Toney
Expert testimony on claimed injuries and treatment provided to Plaintiff.
Will Appear in person.
2. Defendant may call the following witnesses:
e. Fermin Acosta
Conductor on board the locomotive. Eyewitness and passenger aboard the
train during the incident who will testify regarding his knowledge of the
facts surrounding the incident. Will Appear in person.
3. Excluded Witnesses:
f. Javier Rivera
Director of Terminal Operations, El Paso, Retired. Rebuttal witness on
train operations utilized by the Union Pacific Railroad. Will Appear in
person.
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The Court sustained Plaintiff’s objection to Mr. Rivera. [Doc. 73] at 2.
However, the Court may reconsider its ruling if Plaintiff elicits testimony
from one of its witnesses or otherwise introduces evidence on the subject
matter about which Mr. Rivera planned to testify. Id.

X. TRIAL PREPARATION
A.

Pretrial Motions Hearing
On February 27, 2017, the Court held a hearing on Plaintiff’s Motion to Exclude Expert

Testimony of Dr. John F. Wiechel [Doc. 41]. On February 28, 2017, the Court issued an order
denying Plaintiff’s motion. [Doc. 55]. No other pretrial motions hearing was held in this case.
B.

Pretrial Conference
A Pretrial Conference was held on March 30, 2017. Per the Court’s Order Setting

Pretrial Conference and Non-Jury Trial [Doc. 45] and Order Resulting from Pretrial Conference
[Doc. 73]:
Item
Exhibits

Exhibit
Binders

Witness
Lists &
Designation
of
Deposition
Testimony
Findings of
Fact
and
Conclusions
of Law

Description
The Court has admitted into evidence:
Plaintiff’s Exhibits 1–83. [Doc. 61].
Defendant’s Exhibits E and H. [Doc. 69].
All exhibits have been marked, and each side has delivered to chambers its
exhibit binder(s). Plaintiff’s exhibits have been identified with numbers, and
Defendant’s have been identified with letters. The identification number or letter
remains the same whether the exhibit was admitted or not. Charts, plats,
diagrams, etc., must be marked and ready as to measurements, landmarks, and
other identifying factual material before trial.
The parties have filed their witness lists on the record. [Docs. 57, 60, 65].
Plaintiff’s objection to Defendant’s proposed witness, Javier Rivera, was
sustained. [Doc. 73]. Witnesses must be called in the order in which they are
listed.
Plaintiff has filed designations of deposition testimony. [Docs. 63, 64].
The parties have filed their proposed findings of fact and conclusions of law.
[Docs. 59, 62]. The Court deferred ruling on Plaintiff’s objection to Defendant’s
assertion of the affirmative defense of contributory negligence. [Doc. 73].
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C.

Trial Briefs
The parties are encouraged, but not required, to submit trial briefs outlining basic legal

theories, anticipated evidence in support of the theories, and the legal basis of any anticipated
evidentiary disputes. The briefs are due April 10, 2017.

XI. OTHER MATTERS
A.

Settlement Possibilities
1.

The possibility of settlement in this case is considered:

____ Poor X Fair ____ Good ____ Excellent ____ Unknown
2.

Do the parties have a settlement conference set with the assigned Magistrate

Judge or another mediator?
____ Yes

X No

If a settlement conference has already been held, indicate approximate date: A settlement
conference was set for November 7, 2016, and subsequently vacated. Judge Martinez
then set a status conference to determine if settlement was possible on December 1, 2016
[Doc. 46].
Would a follow-up settlement conference be beneficial? ____ Yes
3.

X No

Does either party wish to explore any alternatives for dispute resolution such as

mediation or a summary jury trial?
If yes, please identify:
If no, explain why not:

The parties have not made any progress in their informal

settlement negotiations to move closer to settlement. The parties have presented different
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facts and had (at the time they submitted their Proposed Pretrial Order) a pending dispute
over Defendant’s liability expert.
B.

Length of Trial and Trial Setting
1.
2.

The case is set for trial on April 18, 2017, at 8:30 a.m.

3.
C.

This action is set for a X Bench Trial ____ Jury Trial ____ Both

The estimated length of trial is 4 days.

Decorum and Courtroom Management
1.

Trials will begin at 8:30 a.m. and recess no later than 5:00 p.m.

2.
Clients and witnesses are expected to be on time. Witnesses should be ready and
available when called to testify.
3.
Counsel should always have witnesses available to fill a full trial day (i.e.,
8:30 a.m. to 5:00 p.m.).
4.
Stand when you speak. Do not refer to any party or attorney by a first name.
Always use surnames.
5.
In opening statement, present a concise summary of the facts. Do not argue the
facts or discuss law. Do not describe in detail what particular witnesses will say. Each
side may have 30 minutes for opening statements.
6.
Counsel should provide each witness with copies of all the exhibits about which
that witness is expected to testify before the witness takes the stand.
7.
Counsel should not provide copies of exhibits to the Court. Instead, counsel
should identify orally the exhibit number or letter to which he or she is referring and
allow sufficient time for the Court to locate the exhibit in its own exhibit binder.
8.
Parties should notify Information Systems Help Desk at 505-348-2110 at least
five days in advance of trial if they plan to use audio-visual or other courtroom
technology during trial. Parties are responsible for operating this equipment during trial.
Parties should be prepared to proceed without the equipment in the event it breaks or
otherwise becomes unavailable. Trial time will not be utilized for resolving technology
issues.

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9.
Counsel must seek leave of the Court in the form of a written motion to
extend any pretrial deadline.

XII. EXCEPTIONS
1. Plaintiff:

None

2. Defendant: None

XIII. MODIFICATIONS-INTERPRETATION
The Pretrial Order, when entered by the Court, will control the course of trial and may
only be amended by the Court sua sponte or by consent of the parties and Court approval. The
pleadings will be deemed merged herein.

______________________________
STEPHAN M. VIDMAR
United States Magistrate Judge
Presiding by Consent

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