Oelschlager v. Ear, Nose & Throat Specialties, PC ( 2019 )

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA ROBBIE OELSCHLAGER, individually; Plaintiff, 4:18CV3040 vs. THIRD AMENDED ORDER SETTING FINAL SCHEDULE FOR PROGRESSION OF CASE EAR, NOSE & THROAT SPECIALTIES, PC, and CHRIS A. CEDERBERG, M.D.; Defendants. This matter is before the Court on the parties’ Joint Motion to Extend Expert Witness Disclosure deadlines. (Filing No. 64.) The motion is granted. Accordingly, IT IS ORDERED that the provisions of the Court's earlier final progression orders remain in effect, and in addition to those provisions, the following shall apply: 1. Motion to Dismiss and Motions for Summary Judgment. Motions to dismiss and/or for summary judgment shall be filed not later than February 18, 2020. See NECivR 56.1 and NECivR 7.1. 2. Discovery Deadlines: a. Deposition Deadline. All depositions, whether or not they are intended to be used at trial, shall be completed by August 20, 2020. b. 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 December 13, 2019. 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. c. Discovery Motions. Discovery motions shall be filed not later than November 13, 2019, 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 plaintiff, counter-claimant, and cross- claimant shall identify expert witnesses by April 1, 2020 and shall serve expert reports by May 1, 2020. Each Defendant, Counter-Defendant, and Cross-Defendant shall identify expert witnesses by July 1, 2020, and serve expert reports by August 1, 2020. If necessary to refute the disclosed opinions of an expert witness of an opponent, a plaintiff, counter-claimant, or cross-claimant may disclose additional expert witnesses not later than August 14, 2020, 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. 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 August 28, 2020, 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. Motions in Limine shall be filed seven days before the pretrial conference. It is not the normal practice to hold hearings on motions in limine or to rule on them prior to the first day of trial. Counsel should plan accordingly. 5. The Final Pretrial Conference in this matter is cancelled. A telephonic conference to discuss the status of case progression and trial and pretrial conference setting will be held with the undersigned magistrate judge on September 11, 2020 at 3:00 p.m. by telephone. Counsel shall use the conferencing instructions assigned to this case to participate in the conference. (Filing No. 56.) 6. 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. 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 the case" so as to require a written report under Fed. R. Civ. P. 26(a)(2)(B). 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. 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 27th day of December, 2019. BY THE COURT: s/ Susan M. Bazis United States Magistrate Judge