Free Amended Document - 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

Civil Action No. 00-cv-02098-REB-MJW

KELLY FINCHER, by her guardian, JAMES FINCHER, on behalf of herself and all others similarly situated, Plaintiffs, v. PRUDENTIAL PROPERTY AND CASUALTY INSURANCE COMPANY, Defendant.

AMENDED SCHEDULING ORDER

1. DATE OF CONFERENCE AND APPEARANCES OF COUNSEL AND PRO SE PARTIES A Status/Scheduling Conference was held on September 14, 2006, before Magistrate Judge Michael J. Watanabe. Plaintiff Kelly Fincher was represented by L. Dan Rector of Franklin D. Azar & Associates, P.C., 5536 Library Lane, Colorado Springs, Colorado 80918, (719) 527-8000, and Leif Garrison of The Carey Law Firm, 2301 East Pikes Peak Avenue, Colorado Springs, Colorado 80909, (719) 635-0377. Defendant Prudential Property and Casualty Insurance Company ("Prudential") was represented by Clifton J. Latiolais, Jr. of Campbell, Latiolais & Ruebel, PC, 825 Logan Street, Denver, CO 80203, (303) 861-7760.

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2. STATEMENT OF JURISDICTION Defendant removed this action from the El Paso County, Colorado, District Court pursuant to 28 U.S.C. 1446(a). This Court has original diversity jurisdiction over the claims of the Plaintiff and persons in the putative class pursuant to 28 U.S.C. § 1332, because this is a civil action involving citizens of different states and the amount in controversy exceeds $75,000. 3. STATEMENT OF CLAIMS AND DEFENSES The Statement of Claims and Defenses has been adequately addressed in the previous Scheduling Conference Order on this case. At present, a Motion for Class Certification has been fully briefed and is awaiting a ruling from the court. Plaintiff contends that all individual claims asserted by Mr. Fincher on behalf of his daughter Kelly, and the defenses to those claims, remain at issue. Defendant contends that, other than a dispute regarding the proper amount of interest, no compensatory claims remain, given the Court's February 28, 2006 Order limiting Prudential's PIP obligations to $200,000, which Prudential has paid with interest. As such, the only other claims that remain viable are for extracontractual damages, treble damages and attorney fees.

4. UNDISPUTED FACTS The undisputed facts are: 1. The Plaintiff feels that an adequate statement of undisputed facts appears in

this court's Findings of Fact, Conclusions of Law, & Orders filed on February 28, 2006, on pages 2-6. 2. The Defendant agrees with Plaintiff's statement regarding pages 2 ­ 6 of the 2

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Court's Order,, with the exception of two matters in the Court's order that are not undisputed: (a) her life", and (b) Bekeshka was "offered" only $150,000 in APIP benefits: that Fincher "will have to live in an assisted living milieu for the remainder of

5. COMPUTATION OF DAMAGES Plaintiff's position regarding damages: a. Plaintiff Kelly Fincher is making claims for medical care and therapy beyond

the first $50,000.00 paid by Defendant, projected to be in the amount of $2,177.558.67, per the projections of experts Jerome Sherman and Bonnie Ruth's projections in her report previously endorsed in this case. These figures will be timely revised in light of the passage of time and any developments in Kelly Fincher's situation. Her past medical expenses are approximately $216,791.36, less the offset paid under PIP of $107,500.00, and adjusted by the supplemental payment resulting in a total payment to date of $200,000 of PIP benefits, and interest on that amount. b. Plaintiff Kelly Fincher is making claims for future loss of earning capacity

in the amount of $649,365.00, as of the date of the last economic projection by expert Jerome Sherman. c. Damages for extra-contractual claims, and treble damages under C.R.S. §

10-4-708, cannot be quantified. d. Attorney fees will be identified under the terms and timing of the statute and

Division of Insurance regulations governing those claims under the No-Fault Act. 3

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Defendant's Position regarding claimed damages: Defendant contends that the Plaintiff's alleged compensatory damages set forth in paragraphs 5(a) and (b) are not recoverable in this lawsuit, given the Court's order limiting available PIP benefits to the statutory limit of $200,000, which has already been paid by Prudential. Defendant also disputes Plaintiff's efforts to postpone disclosure of attorney fees as an element of damages in this case. The statute to which Plaintiff refers in section 5(d) is (former) CRS 10-4-708 1.5, which applies only to binding arbitrations agreed to by the parties. CRS 10-4-708(1.7)(a) provides that the amount claimed as damages and attorney fees need not be identified until 20 days before the arbitration proceeding. That provision has no application to a civil lawsuit, and is contrary to Plaintiff's disclosure obligations under the Federal Rules of Civil Procedure. Plaintiff has thus far refused to respond to written discovery concerning the claimed attorneys fees, or provide a computation of such damages claimed in this lawsuit. 6. REPORT OF PRECONFERENCE DISCOVERY AND MEETING UNDER FED. R. CIV. P. 26(f) a. b. Date of rule 26(f) meeting: September 7, 2006. L. Dan Rector of Franklin D. Azar and Associates, P.C. on behalf of Plaintiff.

Clifton J. Latiolais, Jr. of Campbell, Latiolais & Ruebel, P.C. on behalf of Defendant. c. Proposed changes, if any, in timing or requirement of disclosures under

Fed. R. Civ. P. 26(a)(1): None. d. e. Rule 26(a)(1) disclosures were made by both parties previously. There is no agreement regarding informal discovery. 4

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f.

Discovery has been completed as to all but certain experts, therefore the

parties do not anticipate that their claims or defenses will involve extensive electronically stored information. 7. CONSENT The parties have not consented to the exercise of jurisdiction of a magistrate judge. 8. CASE PLAN AND SCHEDULE a. Deadline for Joinder of Parties and Amendment of Pleadings:

There will be no joinder of additional parties or amendments to pleadings. b. Discovery Cut-off:

The Plaintiff proposes that discovery be re-opened as to all remaining issues for purposes of supplementing existing discovery only, and allowed up to and including May 4, 2007. The Defendant objects to the reopening of all discovery, as non-expert discovery was concluded as of December 15, 2001, and expert discovery (except depositions of Defendant's experts) was concluded in June 2002, pursuant to previous orders, scheduling orders and several final pretrial orders in this case. No new issues have arisen since that time, except for the possible change in Plaintiff's medical, life care or economic condition, and therefore discovery should not be reopened except as to any supplemental expert discovery identified by Defendant in section 8(d) and (e), below, which should be completed by May 4, 2007. c. Dispositive Motion Deadline:

Because this case is scheduled for trial on October 15, 2007, dispositive motions

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should be filed no later than four months before that date, or June 15, 2007. Response briefs must be filed no later than 21 days after any dispositive motion, and reply briefs filed no later than 14 days after the response brief. The Plaintiff may file a motion asking the court to reconsider its ruling regarding the imposition of an aggregate limit within the reformed policy, based upon any additional case law that has been decided since this court's February 2006 Order. The Defendant may file, in response to Plaintiff's motion, a request that the Court reconsider its ruling on the effective date of reformation. It may also file a summary judgment motion on Plaintiff's remaining claims. d. Expert Witness Disclosure (1) each party. (2) Because all experts, except rebuttal experts, have been disclosed in Experts and their areas of expertise have previously been disclosed by

accordance with previous deadlines, the parties propose no limitation on the use or number of those expert witnesses. (3) All designated experts have been disclosed. For purposes of

supplementation of existing expert opinions based on a change in Plaintiff's medical, life care or economic condition,, the parties shall provide opposing counsel with all supplemental information specified in Fed. R. Civ. P. 26(a)(2) on or before March 15, 2007. (4) The parties shall designate all rebuttal experts and provide opposing

counsel with all information specified in Fed. R. Civ. P. 26(a)(2) on or before May 1, 2007.

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(5)

Notwithstanding the provisions of Fed. R. Civ. P. 26(a)(2)(B), no

exception to the requirements of the rule will be allowed by stipulation of the parties unless the stipulation is approved by the court. e. Deposition Schedule:

Because depositions have been taken previously in this case, the parties are unable to determine at this time if and when supplemental depositions will be taken. The Plaintiff proposes that any such depositions include witnesses bearing upon any remaining issues. The Defendant disputes Plaintiff's attempts to reopen all discovery, as the deadlines for completion of depositions (except Defendant's experts) have expired, and no new issues have arisen except possible changes in Plaintiff's medical, life care or economic condition. As such, Defendant proposes that any supplemental depositions be limited to experts not previously deposed, and experts whose opinions may be supplemented pursuant to section 8(d)(3), above. f. Interrogatory Schedule

The Plaintiff proposes that the parties be allowed 30 additional interrogatories. The Defendant proposes that there be no additional interrogatories allowed, as all discovery deadlines have expired and no new issues have arisen since that time. g. Schedule for Request for Production of Documents

The Plaintiff proposes that the parties be allowed 10 additional requests for production. The Defendant proposes that there be no additional requests for production allowed, as all discovery deadlines have expired and no new issues have arisen since that time. h. Discovery Limitations: 7

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(1) ­ (4) No further discovery, except as identified in this Section 8. Any depositions shall be limited to a maximum of 7 hours. (5) None 9. SETTLEMENT The parties hereby certify that they have discussed the possibility for a prompt settlement or resolution of the case by alternative dispute resolution. The parties believe that a settlement conference would not be productive at this time, but that a settlement conference may be productive following the Court's ruling on class certification. The result of any such future meeting will be reported to the magistrate judge within ten days of the meeting. 10. OTHER SCHEDULING ISSUES a. There are no other scheduling or discovery issues that have not been Other Planning or Discovery Orders

addressed elsewhere in this Scheduling Order. b. Trial is scheduled to a jury for three weeks beginning October 15, 2007. 11. DATES FOR FURTHER CONFERENCES a. A settlement conference will be held on________________________ at ______ o'clock __.m. It is hereby ordered that all settlement conferences that take place before the magistrate judge shall be confidential. ( ) ( ) Pro se parties and attorneys only need be present. Pro se parties, attorneys, and client representatives with authority to settle must be present. (NOTE: This requirement is not fulfilled by the presence of counsel. If an insurance company is involved, an adjustor authorized to enter into settlement must also be present.)

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( )

Each party shall submit a Confidential Settlement Statement to the magistrate judge on or before _______________ outlining the facts and issues, as well as the strengths and weaknesses of their case.

b. Status conferences will be held in this case at the following dates and times: ___________________________________________________________ ___________________________________________________________ ______________ c. A final pretrial conference will be held in this case on at_____ o'clock __.m. A Final Pretrial Order shall be prepared by the parties and submitted to the court no later than five days before the final pretrial conference. 12. OTHER MATTERS In addition to filing an appropriate notice with the clerk's office, counsel must file a copy of any notice of withdrawal, notice of substitution of counsel, or notice of change of counsel's address or telephone number with the clerk of the magistrate judge assigned to this case. Counsel will be expected to be familiar and to comply with the Pretrial and Trial Procedures established by the judicial officer presiding over the trial of this case. In addition to filing an appropriate notice with the clerk's office, a pro se party must file a copy of a notice of change of his or her address or telephone number with the clerk of the magistrate judge assigned to this case. With respect to discovery disputes, parties must comply with D.C.COLO.LCivR 7.1A. The parties filing motions for extension of time or continuances must comply with D.C.COLO.LCivR 6.1D. by submitting proof that a copy of the motion has been served upon the moving attorney's client, all attorneys of record, and all pro se parties.

13. AMENDMENTS TO SCHEDULING ORDER 9

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This scheduling order may be altered or amended only upon a showing of good cause.

DATED this 11th day of September 2006. BY THE COURT:

_______________________________ United States Magistrate Judge APPROVED: s/L. Dan Rector L. Dan Rector FRANKLIN D. AZAR & ASSOCIATES, PC 5536 Library Lane Colorado Springs, CO 80918 Steve W. Berman, WSBA #12536 HAGENS BERMAN, L.L.P. 1301 Fifth Avenue, Suite 2900 Seattle, WA 98101

s/Clifton J. Latiolais, Jr. Clifton J. Latiolais, Jr. CAMPBELL LATIOLAIS & RUEBEL PC 825 Logan Street Denver, CO 80203 Bruce C. Oetter BRYAN CAVE LLP One Metropolitan Square 211 North Broadway, Suite 3600 St. Louis, Missouri 63102-2750

s/Robert B. Carey Robert B. Carey Leif Garrison THE CAREY LAW FIRM 2301 East Pikes Peak Avenue Colorado Springs, CO 80909

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