Free Transcript - District Court of Colorado - Colorado

Case 1:00-cv-02098-REB-MJW

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO 00-CV-02098 REB-MJW

KELLY FINCHER, by her guardian, JAMES FINCHER, on behalf of herself and those similarly situated, Plaintiff, vs. PRUDENTIAL PROPERTY AND CASUALTY INSURANCE COMPANY, et al, Defendants.

Proceedings before MICHAEL J. WATANABE, United States Magistrate Judge, United States District Court for the District of Colorado, commencing at 9:07 a.m. on Thursday, September 14th, 2006, in the United States Courthouse, Denver, Colorado.

WHEREUPON, THE ELECTRONICALLY RECORDED PROCEEDINGS ARE HEREIN TYPOGRAPHICALLY TRANSCRIBED...

APPEARANCES MR. L. DANIEL RECTOR, ESQ. Appearing on behalf of Plaintiffs. MR. CLIFTON J. LATIOLAIS, ESQ. Appearing on behalf of Defendants. SCHEDULING CONFERENCE

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P R O C E E D I N G S (Whereupon, within the electronically recorded proceedings are herein transcribed, pursuant to order of counsel.) THE COURTROOM DEPUTY: All rise. Court is in

THE COURT:

You may be seated. All right.

Shelly, can We're on the Kelly

you give me the rest of that.

record now on Case No. 2000-CV-02098 REB-MJW.

Fincher, by her guardian James Fincher on behalf of herself and all others similarly situated, plaintiffs, versus Prudential Property and Casualty Insurance Company, defendant. Counsel, first, on behalf of the plaintiff if you'd enter your appearance, please. MR. RECTOR: Your Honor, I'm Dan Rector here

on behalf of the Finchers. THE COURT: Thank you. Counsel on behalf of

MR. LATIOLAIS:

Good morning, Judge, Cliff

Latiolais on behalf of the defendant. THE COURT: Thank you. The matter is before

the Court this morning for continued scheduling conference, and the parties have submitted to the Court an amended scheduling order. We'll go over the amended

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scheduling order at this point. On the amended scheduling order, as submitted by the parties, pages 1 through 3 inclusive are all approved as tendered. Page 4, paragraph 6, dealing with the Rule 26(f), meaning 26(a)(1) disclosures. The parties have I

met pursuant to Rule 26(f) on September 7th, 2006.

believe the disclosures have already been exchanged; isn't that correct? MR. RECTOR: That's correct, Your Honor. Yes. So the

MR. LATIOLAIS: THE COURT:

That's what I thought.

parties have already made their Rule 26(a)(1) disclosures so paragraph 6 is approved. Paragraph 7 on consent is also fine as tendered on page 5. There is no consent in this case.

Turning to paragraph 8 and the subparagraphs thereunder concerning the case plan and schedule, which begins on page 5 and carries over to pages 6, 7 and a small portion of page 8. We'll go over those

subparagraphs at this point. Regarding the deadline to join parties or amendment of the pleadings, there are no additional parties or amendments to the pleadings, so there's no need to set any further date on that.

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Honor. Court.

Regarding the discovery cutoff date, the parties are proposing in this case through May 4, 2007 for discovery. This would be in the purposes of

supplementing the discovery and reopening discovery. And I understand from that statement the parties have agreed to that; is that correct? MR. RECTOR: Yes, sir. To the date, Your Honor, yes.

MR. LATIOLAIS: THE COURT:

That date is approved then by the

Regarding the deadline for dispositive motions, The trial's

I'm a little concerned about this deadline.

been set in this case in October next year 2007, October 15th, and you're asking through June 15th? MR. RECTOR: That's the date we selected, Your

We worked off the model of the state court just

to create kind of buffer between the trial date and the dispositive motion date. THE COURT: this point. All right. I'll approve that at

June 15th, 2007 for the dispositive motion

deadline, and the parties should file their dispositive motions by that date, June 15th, 2007. Okay. And

regarding the expert section at this point we'll go over that section. First off, I want to get a better feel for how many experts we're speaking about at that point. I'll

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start with Mr. Rector. MR. RECTOR: Well, Your Honor, the medical I don't think there

experts I think are self-evident.

are going to be very many of those because there's not a great dispute about the client's condition. So then we

have I think an economist and a vocational type expert to project on her inability to work. THE COURT: MR. RECTOR: THE COURT: MR. RECTOR: Vocational rehab sort of expert? Yes. Okay. And then a bad faith expert. So Yes.

that's kind of -- I guess you could say if we had a few medical experts, just to define her condition that would be -THE COURT: MR. RECTOR: perhaps. THE COURT: Okay. Mr. Latiolais, you're Five. -- in the range or five or six

looking at six max too, it looks like? MR. LATIOLAIS: Your Honor. THE COURT: Okay. I'm going to indicate six I think that's Okay. Yes. And probably only three,

experts per side without leave of court.

clearly enough based upon proffers by counsel.

And now the disclosures of the experts,

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March 15th, 2007 for initial disclosure of experts and rebuttal experts by May 1, 2007. will be approved at this point. Turning to deposition schedule. Other than Both of those dates

the experts are we really looking at any other depositions? Mr. Rector? Well, Your Honor, this kind of

MR. RECTOR:

goes hand in glove with the one dispute we have over the proposed scope of discovery. It's our position that now

that Judge Blackburn has issued his findings of fact and conclusions of law. THE COURT: MR. RECTOR: Right. That there remains open issues

regarding extracontractual damages because he reformed the policy to the date of its issuance or effectively the date of the accident. So while we're not asking for any repetitive or duplicative discovery, we're asking that for the supplemental discovery that I think both sides agree with the Court, there should be supplemental discovery, that we be allowed if we requested to depose any, for example, company representatives on how they've approached this since the order has been issued. THE COURT: point forward? Oh, okay. You mean from that

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MR. RECTOR: defines the case -THE COURT: MR. RECTOR: prior to that. THE COURT:

Right.

Because we think it

Okay. -- in a way that didn't exist

Mr. Latiolais, I take it you

wouldn't have an objection in the scope of any supplemental discovery as outlined by Mr. Rector, because that's talking about from the date of the reform to the current date which is today or -MR. LATIOLAIS: THE COURT: Right.

-- until -And I assume, Your Honor, that

MR. LATIOLAIS:

that goes to the issue of continuing bad faith from the date of the order? MR. RECTOR: THE COURT: Yes. Yes. Is that the issue?

MR. LATIOLAIS: MR. RECTOR: THE COURT: suggesting from that. MR. LATIOLAIS: Your Honor. THE COURT:

That's correct. That's what I surmised he was

I think that's appropriate,

Okay.

So I'm -- as long as we're I mean,

on the same page on that, which I think we are.

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I'm dealing with very experienced counsel, so I don't have a problem with that, but as long as counsel understand that's the scope of what we're talking about as far as the supplemental depositions then I'll approve Paragraph E with that understanding. Regarding the interrogatory schedule and requests for production of document schedule, the parties -- the plaintiff is requesting 30 additional interrogatories, defendant proposes none. I guess,

Mr. Rector, I'm trying to figure out what other additional interrogatories are you suggesting that you need? about? MR. RECTOR: Yes, essentially, Your Honor. Is it, again, within that scope you're talking

And I don't know that I'd necessarily need 30, but it would come somewhat under the realm of please describe whatever -THE COURT: MR. RECTOR: have taken. THE COURT: Well, I'm going to give each side Okay. -- activities that defendants

25 additional interrogatories of supplemental interrogatories and I'll put it that way. And counsel

understand that to be within the scope that we've just described as far as the time frame and areas. And that

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will be per side on the 25 additional interrogatories. And the same will be for the requests for production of documents; 10 additional supplemental within that scope that I just described. Now, let's discuss one other area. for admissions. for admissions? MR. RECTOR: THE COURT: I don't believe so, Your Honor. Okay. Mr. Latiolais, do you need Requests

Are you asking for additional requests

any additional requests for admission? MR. LATIOLAIS: THE COURT: I do not, Your Honor. Then they'll be no

Okay.

additional requests for admissions, and I'll write that in. No additional supplemental, I should say, requests

for admissions. Okay. Discovery limitations, bottom of page 7 No further

carrying over to the top of page 8.

discovery as identified in Section A, any deposition shall be limited to seven hours. Court. Paragraph 9 on settlement, that's fine and I'll discuss that a little further with counsel in just a moment, so that will be approved. Paragraph 10(a) Other scheduling issues, none. Counsel have done a good job on the scheduling order. That's approved by the

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10(b), length of trial and type of trial.

Jury trial That's

for three weeks beginning October 15th, 2007. before Judge Blackburn. calendar.

That's been set already on his

Paragraph 11 I'll skip over for just a moment but I'll return to it. Paragraph 12 on page 9, Other matters, is approved as tendered, and paragraph 13 on page 10 is also approved as tendered. I'll correct the date, which is today, for the signature block. That's the 14th of September, so I'll

make that correction. And I'll need counsel to go back at this point to Paragraph 11, if you would. couple of dates at this point. And we've got to clear a I want check on one Give me just a

matter before I clear these dates. moment.

(Whereupon, there was a pause in the proceedings at this time.) THE COURT: Let's see here. Regarding the And

final pretrial conference, we'll set that first. I'm looking at August next year.

So if counsel want to

take their calendars out for August 2007. Let me ask counsel their availability on August 14, 2007 at 8:30 a.m. Let's see, Mr. Rector,

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you're coming up from Colorado Springs, right? MR. RECTOR: THE COURT: MR. RECTOR: THE COURT: MR. RECTOR: THE COURT: MR. RECTOR: much of a change. MR. LATIOLAIS: Your Honor, I think 7 a.m. That's correct. 9:30 -I appreciate that. -- on -I appreciate that. -- August 14th? T-Rex hasn't proven to be that

would be an appropriate time. THE COURT: August 14th? MR. RECTOR: THE COURT: I'm available, Your Honor. Okay. Defense? 7 o'clock. How about 9:30 on

MR. LATIOLAIS: fine. THE COURT: write that in. in. MR. RECTOR: THE COURT:

I'm sorry, Your Honor, that's

All right.

Let me go ahead and

Mr. Rector can take, by then, Lightrail

That's true. You could go to the Lincoln

station and drive in -- or take a train in, I should say. Okay. Give me a moment I'm just writing this

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in at this point. (Whereupon, there was a pause in the proceedings at this time.) THE COURT: Okay. All right. The final

pretrial conference is now set for August 14, the year 2007 at 9:30 a.m. That will be in this courtroom. Both

counsel have now accepted that date and time.

And I

will need the parties to submit their proposed final pretrial order to the Court on or before Thursday, August 9, 2007. And the parties are to submit their proposed pretrial order consistent with the Court's e-filing requirements as you did with your amended scheduling order. And I'll direct counsel to the Court's website

for the instructional sheet and format for the final pretrial order. And also, both counsel are aware they need to check the Court's website under Judge Blackburn's name to be sure you're familiar with his pretrial and trial practices procedures. There's been some recent changes to our final pretrial order because of jurisdiction and things like that, so make sure you have the most current format. All right. And then I do want to try to clear a

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settlement conference date, but I want to get some input from counsel before setting that date as to a time frame which may be most productive. Mr. Rector first. MR. RECTOR: Your Honor, I'm sure we'd all So I'll start with

agree we'd prefer to have Judge Blackburn's ruling on the class certification issue -THE COURT: MR. RECTOR: Right. -- prior to that, and I'm not

predicting this, but I would assume we'd want to move this far enough away to give him ample time to do that. THE COURT: Right. I think -- I'm trying --

I'm playing crystal ball here for a minute as to the time frame. I guess what we could do is set it, and

then find out where we are with the class action issue, and if it's not appropriate then counsel can move to continue it on that basis. MR. RECTOR: frame -THE COURT: MR. RECTOR: Yeah. -- we would have completed any Perhaps in that March time

supplemental discovery or close to it. THE COURT: March too, perhaps? MR. LATIOLAIS: I think that's fine, Your Okay. Mr. Latiolais, you think

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Honor. THE COURT: Okay. Earlier part do you counsel

think, or towards the beginning or later of March? Because I'm pretty open in March right now, so I can set it early or late or middle. suggestion? MR. RECTOR: I would say in the middle. I You want to give me a

appear to have something at the end of February and at the end of March, so if you could -THE COURT: MR. RECTOR: please. THE COURT: MR. RECTOR: March 14th at 10 a.m., 2007? That would be fine with me. Yes. All right. We'll Middle? Yeah, do something in the middle,

MR. LATIOLAIS: THE COURT:

That's fine.

set that date for settlement conference. moment to write that in.

Give me just a

(Whereupon, there was a pause in the proceedings at this time.) THE COURT: All right. The Court's cleared That date is March

the date for settlement conference.

the 14th, the year 2007, beginning at 10 o'clock a.m. That will be in this courtroom. accepted that date and time. Counsel have now

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At this point at the settlement conference I'll need Mr. Fincher present with Mr. Rector, and then I think it depends, Mr. Rector, if the class gets certified then the -- a representative from the class. We'll just have to see where we are at that point with you. And then I'll need a representative from the

defendant insurance carrier present with counsel. I'll need the parties to submit their updated confidential settlement statements to the Court on or before -- let me get a date certain here -- March 9, 2007. I'll repeat that for counsel's benefit. The final -- the settlement conference is set for March 14th, 2007 beginning at 10 o'clock a.m. Their

updated confidential settlement statements need to be submitted by March 9, 2007. Mr. Fincher, plaintiff,

needs to be present with Mr. Rector, and if the class becomes certified then a class representative needs to be present with Mr. Rector as well, and then a representative from the defendant insurance carrier needs to be present with Mr. Latiolais on that date. Okay. And I'll just let counsel know, we'll

have to play this by ear as it relates to the issue of class certification. If we get close to that date and

there's no ruling then I will be amenable for you to file a joint motion if that's what it is to continue or

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reset the -- continue and reset the settlement conference. Because I understand that will make a

difference on how we approach the settlement issues, but if you do file it, let me just remind counsel perhaps within the body of the motion you might want to mention that there's no class certification determination yet, or something to that effect, so that will kind of earmark that for me. Okay.

Ms. Moore, do you have all those dates? THE COURTROOM DEPUTY: Your Honor, I don't have. THE COURT: Oh, I can provide those. The The ones that I listed,

Court's going to add to the scheduling order the dates that have already been set by Judge Blackburn concerning the trial and trial preparation conference dates under Paragraph 10. So the jury trial is set for three weeks

on October 15, the year 2007, and that begins at 8:30 a.m., so I'll write that in for the time. And then the trial preparation conference is set before Judge Blackburn on September 28th, the year 2007, beginning at 9 o'clock a.m. So I'll write that in

as well under Paragraph 10(b) on page 8 of the amended scheduling order just so we have all the dates in one location. Give me a moment to do that. (Whereupon, there was a pause in the

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proceedings at this time.) THE COURT: Okay. Oh, we don't have any

further limitations on depositions counsel, know where they are with that, I think. So that's not an issue.

And the written discovery, meaning the interrogatories, those need to be served by the discovery -- by the following date. Let me give you a date certain.

I'm giving you until May 4 for the supplemental discovery, so that means those need to be served by April -- April 9, 2007. I'll write that in.

It appears to me that they'll probably get served well before that date, so that shouldn't cause anybody a problem. Okay. All right. With those additions the

Court at this time will approve the amended scheduling order as amended this morning on the record. It is made

an order of the Court and a copy of the amended scheduling order will be e-noticed to counsel. Ms. Moore, I don't think we have any problems with any of the counsel's e-notice address? THE COURTROOM DEPUTY: THE COURT: Okay. No, sir.

Just a reminder to counsel.

I know you're aware of this, but if you're going to have any other members of your firm other than those that are already listed on the e-notice list, remember they have

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to enter their appearance electronically separately if that's the case, but right now everybody that's been involved in the case is fine with their e-notice. Okay. And the one motion that's outstanding

has been referred to today, that's the amended motion to certify the class, which is currently pending before Judge Blackburn. I believe that's the only outstanding

motion at least at this point; is that correct, on behalf of plaintiff? MR. RECTOR: THE COURT: That's right. And defendant? Yes, Your Honor. Anything further on behalf

MR. LATIOLAIS: THE COURT:

Okay.

of the plaintiff at this point? MR. RECTOR: THE COURT: No, sir. Okay. On behalf of defendant?

MR. LATIOLAIS: THE COURT: appearances.

Nothing, Your Honor. Thank you for your

Okay.

Have a good rest of the week, and counsel

have done a good job on the supplemental scheduling order. I appreciate that. MR. RECTOR: THE COURT: Thank you, Judge. Have a good week. Thank you. You too, Your

MR. LATIOLAIS: Honor.

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(Whereupon, the within hearing was then in conclusion at 9:30 a.m. on this date.) I certify that the foregoing is a correct transcript, to the best of my knowledge and belief (pursuant to the quality of the recording) from the record of proceedings in the above-entitled matter.

Kelly Mair Signature of Transcriber

May 21, 2008 Date

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