Opinion
8:20-CV-00293
09-15-2021
Troy W. Peterson, Plaintiff, v. Union Pacific Railroad Company, a Delaware corporation, Defendant.
HUNEGS, LeNEAVE & KVAS, P.A. Randal W. LeNeave, NE ID #24813 Paul Banker, MN ID #0256596 Attorneys for Plaintiff UNION PACIFIC RAILROAD COMPANY Torry N. Garland Reha Dallon Attorney for Defendant
HUNEGS, LeNEAVE & KVAS, P.A. Randal W. LeNeave, NE ID #24813 Paul Banker, MN ID #0256596 Attorneys for Plaintiff
UNION PACIFIC RAILROAD COMPANY Torry N. Garland Reha Dallon Attorney for Defendant
ORDER ON FINAL PRETRIAL CONFERENCE
Susan M. Bazis, United States Magistrate Judge
A final pretrial conference was held on the 23 day of September, 2021. Appearing for the parties as counsel were:
Street, Suite 200 Shawnee, KS 66204
For Plaintiff: Joshua Miller Paul Banker Hunegs, LeNeave & Kvas, P.A.
For Defendant: Torry N. Garland, Neb. Bar. No. 21624 Reha Dallon Union Pacific Railroad Company
(A) Exhibits. See attached Exhibit Lists.
(B) Uncontroverted Facts. The parties have agreed that the following may be accepted as established facts for purposes of this case only:
Union Pacific is a common carrier by rail engaged in interstate commerce. On November 4, 2018, Plaintiff was employed by Union Pacific as a conductor.
(C) Controverted and Unresolved Issues. The issues remaining to be determined and unresolved matters for the court's attention are:
Union Pacific has a Daubert motion pending before the Court.
The parties have pending motions in limine before the Court.
Plaintiff's Statement of Controverted Issues:
Plaintiff' pending lawsuit seeks to recover damages for injuries suffered on November 4, 2018, while working as a conductor for Defendant UPRR near Hutchinson, Kansas. Peterson's Complaint is brought under the Federal Employers' Liability Act (“FELA” or “Act”), 45 U.S.C. §§ 51-60. As stated in the Act, the FELA is based on negligence, so the common-law elements of negligence are applicable including duty, breach, causation, and damages. Defendant had a duty to provide Peterson with a reasonably safe workplace. Plaintiff alleges Defendant breached its duty through its failure to: adopt reasonably safe procedures, properly train, and/or to enforce its own rules. Plaintiff further alleges Defendant breached its duty to reasonably inspect, repair, and/or warn Plaintiff of unsafe conditions existing at the time of his incident. Additionally, Plaintiff alleges that Defendant's negligent conduct caused, in whole or in part, no matter how small, Plaintiff's injuries and damages. Plaintiff claims damages for past wage losses and loss of future earning capacity in an amount exceeding $1,077,000. Plaintiff further claims damages in the form of past and future pain, suffering, and loss of enjoyment of life in an amount to be determined by the finders of fact.
Union Pacific's Statement of Controverted Issues:
1) Whether Union Pacific exercised reasonable care to provide Plaintiff a reasonably safe workplace on November 4, 2018.
2) Whether Plaintiff was injured while working for Union Pacific on November 4, 2018.
3) Whether an act of negligence of Union Pacific caused Plaintiff's alleged injury.
4) Whether Plaintiff exercised reasonable care for his own safety on November 4, 2018.
5) Whether Plaintiff's own negligence caused or contributed to his alleged injury.
6) The nature and extent of Plaintiff's alleged injuries.
7) The nature and extent of any damages available to Plaintiff.
8) Whether Plaintiff failed to mitigate his damages.
(D) Witnesses. All witnesses, including rebuttal witnesses, expected to be called to testify by plaintiff, except those who may be called for impeachment purposes as defined in NECivR 16.2(c) only, are:See attached Witness Lists.
Plaintiff objects to Defendant's Witness list based on FRCP 37(c) to witnesses on Defendant's witness list who were not disclosed per FRCP 26(a)(1)(A)(i), including Adam Fisher, Kristi A. Girard-Deardorff, Erin Brown, and Dr. Brennen Lucas. Plaintiff has made a motion in limine regarding the exclusion of such witnesses. Defendant's witness list, however, exposes additional improper witnesses. Defendant never disclosed Ms. Girard-Deardorff. Additionally, not only was Erin Brown never disclosed as a witness per FRCP 26(a)(1)(A)(i), the deadline for trial depositions in this case was 6/1/21, which the parties extended for certain specified witnesses to 9/3/21. Defendant never disclosed Erin Brown, nevertheless, did not seek to have her trial deposition taken. Plaintiff, furthermore, objects to Defendant calling Dr. Brennen Lucas as a trial witness. Defendant not only never disclosed Dr. Lucas as a witness per FRCP 26(a)(1)(A)(i), but Defendant also never disclosed that it would seek to present expert testimony from him under FRCP 26(a)(2). Accordingly, the Court should exclude Defendant from calling Adam Fisher, Kristi A. Girard-Deardorff, Erin Brown, and Dr. Brennen Lucas under FRCP 37(c).
All witnesses expected to be called to testify by defendant, except those who may be called for impeachment purposes as defined in NECivR 16.2(c) only, are:
It is understood that, except upon a showing of good cause, no witness whose name and address does not appear herein shall be permitted to testify over objection for any purpose except impeachment. A witness who has been identified as offering testimony solely to establish foundation for an exhibit shall not be permitted to testify for any other purpose, over objection, unless such witness has been disclosed pursuant to Federal Rule of Civil Procedure 26(a)(3). A witness appearing on any party's witness list may be called by any other party.
(E) Expert Witnesses' Qualifications. Experts to be called by plaintiff and their qualifications are:
Jeffrey B. Opp 399 Perry Street, Suite 201 Castle Rock, CO 80104
Mr. Opp will testify concerning his training and experience in the field of economics. He will testify concerning the amount of Plaintiff's past and future wage loss and loss of fringe benefits. Mr. Opp will testify concerning the concept of present value, the selection of a discount rate, and the present value of Plaintiff's economic loss. He is also expected to testify to present economic conditions and trends of employment and unemployment. (CV Attached.)
Terry L. Cordray, M.S., CCM, CRC, ABVE, LPC Rehabilitation Expertise, LLC 10000 W. 75
Mr. Cordray will testify based upon his training, education, and experience in the field of vocational rehabilitation, and review of documents listed in his report. Mr. Cordray is expected to testify regarding the impact of Plaintiff's injuries on Plaintiff's vocational future. He will testify as to as to his evaluation of Plaintiff's aptitudes, education, work experience, physical capabilities, and physical restrictions. He will further testify to Plaintiff's transferable skills, provide an analysis of the labor market where Plaintiff resides, the impact of disability on prospective employment as well as Plaintiff's residual earning capacity. (CV Attached.)
Brandon L. Ogden, Railroad Safety Consultant Ogden Expert Witness, LLC. 629 Route D, Lockwood, MO 65682
Mr. Ogden is a railroad safety consultant who evaluates practical and technical issues related to train operations, safety training, operating rules, and Federal Railroad Administration (FRA) regulations. (CV Attached.)
Mr. Ogden has over 14 years of experience as a certified switchman and conductor with BNSF Railway and railroad operations consultant. He has extensive knowledge in train operation and operating rules interpretation, working his way through the railroad management ranks as Trainmaster, Director of Administration, Terminal Manager and Superintendent of Operations.
Dr. Ryan Livermore Mid-America Orthopedics 1923 North Webb Road Wichita, KS 62706
Dr. Livermore is Plaintiff's treating physician and will testify based on his training, education, and experience in the field of orthopedic surgery and sports medicine, the history obtained, findings upon physical examination of Plaintiff, review of medical records and diagnostic studies. He will further testify to the nature and extent of Plaintiff's injuries, his permanent disability, the relationship of the trauma to Plaintiff's physical condition as well as Plaintiff's medical restrictions, need for future medical treatment and the cost of such treatment and as to all matters contained in his records previously provided. Dr. Livermore will testify to the reasonableness and necessity of the treatment Plaintiff has received.
Alex Brooks, PT St. Luke Hospital 535 South Freeborn Marion, KS 66861
Mr. Brooks is Plaintiff's treating physical and occupational therapists and is expected to testify based upon his training, education, and experience in the field of physical therapy, occupational therapy, and rehabilitation. Mr. Brooks will testify to Plaintiff's participation in physical therapy and occupational therapy sessions, progress as well as limitations, the need for future therapy and the corresponding cost.
Experts to be called by defendant and their qualifications are:
Edward V. Fehringer, M.D., Professor and Orthopaedic Surgeon, University of Nebraska Medical Center, Department of Orthopaedic Surgery and Rehabilitation, 985640 Nebraska Medical Center, Omaha, NE 68198; 402-559-8000. Dr. Fehringer's CV is attached.
(F) Voir Dire. Counsel have reviewed Federal Rule of Civil Procedure 47(a) and NECivR 47.2(a) and suggest the following with regard to the conduct of juror examination:
The parties request the opportunity to directly ask questions of the potential jurors.
(G) Number of Jurors. Counsel have reviewed Federal Rule of Civil Procedure 48 and NECivR 48.1 and Plaintiff suggests that this matter be tried to a jury composed of 7 members; Defendant proposes 12 members.
(H) Verdict. Defendant will not stipulate to a less-than-unanimous verdict.
(I) Briefs, Instructions, and Proposed Findings. Counsel have reviewed NECivR 39.2(a), 51.1(a), and 52.1, and suggest the following schedule for filing trial briefs, proposed jury instructions, and proposed findings of fact, as applicable:
Trial briefs and proposed jury instructions shall be filed five (5) working days before the first day of trial.
(J) Length of Trial. Counsel estimate the length of trial will consume not less than 5 days, not more than 5 days, and probably about 5 days.
(K) Deposition Designations. The plaintiff has already provided their deposition designations to the defendant pursuant to Rule 26(a)(3)(B) due to no other court order designating a time for designations. The defendant has not provided deposition designations to the plaintiff yet. Therefore, plaintiff objects to defendant providing any deposition designation. The defendant shall provide deposition designations by September 24, 2021, counter-designations and objections to designations by plaintiff and defendant by September 28, 2021, and objections to counter-designations by October 1, 2021.
(L) Trial Date. Trial is set for October 19, 2021.
(M) Electronic Devices. Lauriel Fields, Paralegal for Reha Dallon and Torry Garland, attorneys at Union Pacific-Law Department, 1400 Douglas Street, Omaha, NE, shall be allowed to bring a laptop and cell phone into the courtrooms from October 19 through October 25, 2021.
Lena Waterkotte paralegal, Paralegal for Reha Dallon and Torry Garland, attorneys at Union Pacific-Law Department, 1400 Douglas Street, Omaha, NE, shall be allowed to bring a laptop and cell phone into the courtrooms from October 19 through October 25, 2021.