Free Motion for Reconsideration - District Court of Federal Claims - federal

Case 1:00-cv-00697-JFM

Document 197-2

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APPENDIX

Case 1:00-cv-00697-JFM

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Case1:98-cv-00614-JFM Document 304 Filed 09/16/2005 Page 1 of 3

No. 98-614C (Filed September 16, 2005)

SOUTHERN NUCLEAR OPERATING COMPANY, ALABAMA POWER COMPANY, GEORGIA POWER COMPANY, Plaintiffs,
go

THE UNITED STATES, Defendant.

ORDER The Court held an initial pretrial conference at 1:30 p.m. on Thursday, September 2005to discuss procedural issues and any impact of Indiana Michigan, 15, F.3d. ,2005 WL 2173563 (Sept. 9, 2005) on the upcomingtrial, including the time period for whichpartial breachdamage evidencewill be offered in this litigation. 2005 WL2173563 at *5. In response to the Court's Order and questioning in the light of Indiana Michigan, counsel expressed their views as to the applicable time period for which damagescan be addressed in this action. Plaintiffs' counsel offered December 31, 2004 as a cut-off date for presentation of its damageevidence for trial. The governmenthas the issue under study and maytake a more limited view as to the recovery period, but did not object to plaintiffs' proposedDecember 31,2004cut-off date for the presentation of evidence. As the parties have been preparing to litigate damagesaccruing somewhat beyond December 31,2004, they expressed no problem with presentation of evidence as to the damages claimedthrough that date. Their expert reports are compatiblewith

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a December 2004 cut-off. Giventhe pretrial preparation, fairness and judicial 31, ±/ efficiency favor, if not compel,presentation of evidenceconcerningdamage incurred as of that date. Concerning compliance with the Court's audit procedure orders, the government represented that, while reserving the right to dispute causation, objections to plaintiffs' damages froman accountingaspect are contained in the expert report(s). Accordingly, except for those items for which the governmenthas providednotice to plaintiffs, the accountingrealities of amounts incurred and paid are established and ~vill be treated as such at trial. The parties are ~vorking toward resolving the remainingdisputed accounting items and will endeavor, in goodfaith, to resolve them by September 30, 2005. Also, counsel admirably reached agreement upon schedules for exchange of demonstrativesand disclosure of the order of witnesses. Accordingly, it is hereby ORDERED: (1) Demonstrative exhibits shall be provided to the opposingparty forty-eight hoursprior to their use at trial; (2) The order of witnesses shall be provided to the opposing party seven calendar days in advance of that testimony; (3) Deposition designations shall be provided to the opposing palV seven calendar days prior to the commencememthe propoundingparty's case-in-chief. of All counter-designationsshall be providedafter the conclusionof the trial; (4) Trial transcripts from the consolidated trial in Yankee Atomic Power Company United States, No. 98-126C v. shall be treated as depositions for the purpose of designations with notice(s) given as provided above; (5) The scope of the trial proceedings in this matter will comprise damage evidence up to and including December 2004; 31, ±/Asthe Court notedat the pretrial conference, a damage is "incurred" this when item in context,and/orwhatparticularcut-offdate(s) recovery be sanctioned Indiana for may by Michigan awaitfurther exposition determination. and -2-

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(6) Evidence reflecting the results of the government's audit of plaintiffs' damagesshall be presented at trial in a mannerthat will show items not contested for accounting purposes as set forth above; (7) Should counsel agree that the final pretrial conference scheduled for October 11, 2005 at 10:00 a.m., at the National Courts Building, 717 MadisonPlace, NW,Washington, DC20005, is not necessary, they shall so inform Judicial Assistant Linda Eddins at (202) 357-6613 and that conference will be cancelled.

s/James F. Merow James F. Merow Senior Judge

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