Free Proposed Pretrial Order - District Court of Colorado - Colorado

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-cv-1187-PSF-MJW SUSAN PENA, Plaintiff, v. TRAVELERS PROPERTY CASUALTY COMPANY OF AMERICA, and SUZANNE LIENING, Defendants. FINAL PRETRIAL ORDER

1. DATE AND APPEARANCES The pretrial conference is scheduled for August 29, 2005, at 9:00 a.m. Kevin Amatuzio and Erik Neusch will appear on behalf of the Defendants Travelers Property Casualty Company of America (ATravelers@) and Suzanne Liening (ALiening@). Marc Bendinelli and W. Joseph Lapham II, will appear on behalf of the Plaintiff Susan Pena. 2. JURISDICTION Subject matter jurisdiction is based on diversity of citizenship jurisdiction under 28 U.S.C. ' 1332(a). 3. CLAIMS AND DEFENSES Plaintiff: Plaintiff claims that Defendants= handled her WC claim in a way that constitutes bad faith and extreme and outrageous conduct. Defendant=s have breached the covenant of good faith and

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fair dealing. Defendant=s have denied Plaintiff medical care and household services. Traveler=s has retaliated against Plaintiff for asserting these claims. After falling at work and breaking her ankle in March of 1999, Plaintiff has been left with a fused ankle (after 5 surgeries), RSD, and psychological problems with suicidal thoughts. Prescriptions for medical care from physicians were ignored. Instead of following the mandates of the Rules of Workers Compensation, Defendant=s responded by dispatching surveillance in December of 2000. Plaintiff=s damages include, but are not limited to, emotional distress of the claims handling, having to go to a workers compensation hearing, and having her deposition taken. Her damages also aggravated because the Defendant=s denied her emergency psychiatric care, while they were aware that she was suicidal. Plaintiff filed for a Workers= Compensation hearing. After the March 26, 2002 hearing, ALJ Henk concluded Defendant=s conduct willfully and wantonly unreasonable. Following the hearing Defendant=s attempted to avoid the consequences of their actions and appealed the ALJ. Defendants further retaliated against Plaintiff for asserting her rights. The ALJ found that [t]he taxicab vouchers requested by Claimant are reasonable and necessary medical benefits.@ The ALJ foundY A[t]he carrier=s failure to provide transportation to enable Claimant to attend medical appointments is a willful refusal to provide medical treatment and their actions are unreasonable.@ The ALJ further found >[t]he carrier has willfully and unreasonably failed or refused to provide transportation to and from medical treatment from December 6, 2001 until the day of the hearing, March 26, 2002.@ The Court of Appeals stated that Defendant=s could have ordered an MUR (Medical Utilization Review) pursuant to Dep=t of Labor & Employment Rule XV, 7 Code Colo. Regs. 2

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1101-3. The Court stated that absent this review, Defendant=s AYcould not refuse to enable claimant to travel to her appointments based on a unilateral decision.@ Defendant is attempting to re-litigate issues of unreasonable conduct that have already been judicially determined. Defendants: Defendants state the nature of the case and their defenses as follows: Plaintiff has sued her workers= compensation insurer, Travelers, and its claims representative, Suzanne Liening, alleging claims of bad faith breach of contract against Travelers and extreme and outrageous conduct against both Travelers and Liening. Plaintiff claims that Travelers and Liening improperly denied her taxicab vouchers and emergency psychiatric treatment. Plaintiff sustained a compensable injury under the Colorado Workers= Compensation Act on March 7, 1999, when she fell from a window ledge while attempting to retrieve keys at her job. As a result of her fall, she suffered a fractured left ankle and has since undergone five ankle surgeries. On May 17, 2000, Plaintiff=s primary orthopedic physician, Dr. Steven Morgan of Denver Health, stated that public transportation was unsafe for her and requested that she be provided alternate transportation so that she could attend medical appointments. Travelers began furnishing these taxi vouchers to Plaintiff shortly thereafter. After approximately one and a half years of providing the vouchers, in late October 2001, Liening declined to authorize additional vouchers until Dr. Morgan provided verification that the vouchers were still medically reasonable and necessary. Under the Workers= Compensation Rules of Procedure, a health care provider is required to request prior authorization for certain services and Ato explain the medical necessity of the service requested and provide supporting medical documentation.@ W.C.R.P. Rule XVI(I)(5). Under section 8-42-101(1)(a), a claimant under the Workers' Compensation Act is entitled to medical treatment "as may reasonably be needed at the time of the injury and thereafter during the disability to cure and relieve the employee from the 3

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effects of the injury.@ In response to Travelers= request, Dr. Morgan drafted a letter dated November 1, 2001, which stated: Pena is in need of continuation of taxi-cab vouchers for transportation secondary to reconstruction of her lower extremity. Transportation is essential to her being able to arrive at her scheduled medical appointments and physical therapy appointments. This letter was forwarded via facsimile by Plaintiff=s attorney to Travelers on November 8, 2001. On November 13, 2001, Liening acknowledged receipt of Dr. Morgan=s letter but requested medical documentation from him to support his recommendation: APlease advise the medical necessity and documentation to support the request for cab fare . . . .@ Having received no further information from Dr. Morgan, Liening again wrote to Dr. Morgan on January 3, 2002, to request information to support the need for taxicab vouchers. In a December 5, 2001 medical report, Dr. Morgan

acknowledged receiving Travelers= request for medical documentation to support the voucher prescription, but stated that Plaintiff=s attorney instructed him not to provide any further documentation to Travelers. After not providing additional vouchers for taxi cabs between late October 2001 and the end of March 2002, Travelers resumed issuing Plaintiff taxi vouchers without interruption to this day. Even during the time period when Travelers refused to authorize additional vouchers pending receipt of the information from Dr. Morgan, Plaintiff attended some medical and physical therapy appointments. Plaintiff herself admits that no health care provider has told her that her condition worsened as a result of the interruption in providing taxi cab vouchers.

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Defendants acted at all times in a reasonable manner in adjusting Plaintiff=s workers= compensation case. Defendants did not breach the covenant of good faith and fair dealing owed to the insured. In adjusting Plaintiffs= workers= compensation case in general and Plaintiff=s request for transportation vouchers in particular, Defendants acted in accordance with the standards of the insurance industry and the rules and procedures for workers= compensation claims. While the insurer has certain obligations of good faith and fair dealing to its insured, the insurer also is entitled to investigate and even to contest the insured=s claims when reasonable grounds exist upon which to do so. Even if Defendants= actions were unreasonable, which Defendants deny, Defendants neither knew nor recklessly disregarded the fact that their actions were unreasonable. Defendants= conduct in adjusting Plaintiff=s workers= compensation case was not outrageous. Defendants= conduct was not the cause of Plaintiff=s claimed damages. Furthermore, Defendants assert the following additional defenses: (1) Plaintiff's failure to reasonably mitigate her damages; (2) Plaintiff=s, or her attorney=s, comparative negligence; and (3) Plaintiff=s damages were caused by the acts or omissions of third persons over whom Defendants had no control. 4. STIPULATIONS 1. Plaintiff sustained a compensable injury under Colorado=s Workers=

Compensation Act on March 7, 1999, when she sustained a fractured left ankle. 2. On May 17, 2000, Plaintiff=s primary orthopedic physician stated that public

transportation was unsafe for her and requested that she be provided alternate transportation to attend medical appointments. 5

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3. 4.

Travelers began furnishing these taxi vouchers to Plaintiff shortly thereafter. By letter dated November 1, 2001, Dr. Morgan wrote that Plaintiff needed a

continuation of taxi vouchers for transportation to arrive at her scheduled medical appointments and physical therapy appointments. 5. By letter dated January 3, 2002, Liening again wrote Dr. Morgan to request

medical documentation to support the need for taxicab vouchers. 6. At the time Plaintiff requested additional vouchers in October 2001, Plaintiff

lived within one city block of a bus stop from which she could obtain public transportation to Denver Health Medical Center. 7. 8. Since April 2002, Travelers has continued to provide these vouchers to Plaintiff. Plaintiff attended some physical therapy and medical appointments during the

time period when Travelers refused to authorize additional taxi vouchers. 5. PENDING MOTIONS Defendants have pending a motion for summary judgment on Plaintiff=s claim of extreme and outrageous conduct, which is the last remaining claim against Defendant Liening. This motion was filed by Defendants on August 8, 2005. Plaintiff=s response is due on or before August 29, 2005. 6. WITNESSES

a. (1)

List the nonexpert witnesses to be called by each party. List separately: witnesses who will be present at trial (see Fed. R. Civ. P. 26(a)(3)(A)); 6

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Plaintiff: 1. Susan Pena. Susan Pena is the Plaintiff in this case and she will testify to her

medical condition, her medical treatment, her emotional state, the claims handling of Traveler=s and the conduct of Susan Liening. 2. Susan Liening. Susan Liening is the claims adjuster who handled Plaintiff=s

claim. Ms. Lieining will testify as to the manner she adjusted this claim and the procedure she followed. Defendants: 1. Suzanne Liening. Ms. Liening is a defendant in this action and served as the claims Ms. Liening will testify regarding the

adjuster in Plaintiff=s workers= compensation case.

circumstances of the handling of Plaintiff=s workers= compensation case and her efforts to obtain information from Plaintiff=s doctor to support the request for additional taxi vouchers. 2. Trecia L. Sigle, Esq. Ms. Sigle represents Travelers and Family Dollar Stores, Inc.

in Plaintiff=s underlying workers= compensation case and will testify regarding the handling of the workers= compensation case. 3. Lynn Best, R.N. Ms. Best served as the nurse case manager for the Plaintiff=s

workers= compensation claim and will testify regarding her involvement in the claim, treatment of Plaintiff, and her contact with Plaintiff and her attorney. 4. A representative of Wade Thomas & Associates, including Thomas Shoemaker.

This representative performed surveillance of Ms. Pena on November 29, 2001 and December 5, 2001, and will testify regarding Ms. Pena=s condition, ability to ambulate, and ability to travel to her 7

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medical appointments. A videotape of the surveillance on December 5, 2001 has previously been disclosed and produced. 5. Representatives of Colorado Division of Workers= Compensation, Colorado

Compliance Section, including Patricia Smith, Division of Workers= Compensation, 633 17th Street, Suite 400, Denver, CO 80202-3660, Tel.: 303-318-8700. These representatives will testify

regarding Defendant Suzanne Liening=s contact with them to determine whether Travelers had any obligation to continue to provide taxicab vouchers to Plaintiff. 6. Representatives of Physical Therapy Department at Denver Health. These

representatives will testify regarding Plaintiff=s attendance during physical therapy appointments in 2001 and 2002, her physical condition, and the progress of her rehabilitation. (2) witnesses who may be present at trial if the need arises (see Fed. R. Civ. P. 26(a)(3)(A)); and Plaintiff: 1. Tricia Sigle, Esq. Ms. Sigle is the attorney for Travelers who handled this case at

the workers= compensation hearing of March 26, 2001. Defendants: 1. Steven J. Morgan, M.D., Denver Health. Dr. Morgan served as Plaintiff=s primary orthopedic physician for part of her workers= compensation case and may testify regarding his treatment of Plaintiff, his dealing with Travelers and with Plaintiff=s counsel, and his recommendations for taxicab vouchers. 2. John Bell, M.D. Dr. Bell may testify as to his contact with Plaintiff and with Travelers 8

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with respect to the alleged need for emergency psychiatric treatment. 3. Representatives of Family Dollar Stores, Inc., 1515 West 48th Avenue, Denver, Colorado 80221. These representatives may testify regarding Plaintiff=s injuries, the nature of her employment, and the handling of Plaintiff=s underlying workers= compensation case. 4. (3) Any lay or expert witness listed as a will call or may call witness by the Plaintiff. witnesses where testimony is expected to be presented by means of a deposition and, if not taken stenographically, a transcript of the pertinent portions of the deposition testimony. See Fed. R. Civ. P. 26(a)(3)(B). Plaintiff: Plaintiff intends on using deposition testimony (video and enlarged transcript) of Suzanne Liening, Patricia Clisham, Esq., and the 30(b)(6) deponent. Defendants: None.

b.

List the expert witnesses to be called by each party. List separately:

witnesses who will be present at trial (see Fed. R. Civ. P. 26(a)(3)(A)); Plaintiff: 1. Dr. Stephen Morgan. Dr. Morgan is an orthopedic surgeon who provided care of

the Plaintiff. He will testify that he requested on several occasions that Travelers provide Plaintiff with medically necessary transportation. He will testify that he prescribed home services. He will testify that he made an emergency psychiatric referral for Plaintiff=s suicidal contemplations. 9

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2.

Dr. Randy Pock. Dr. Pock is treating Plaintiff for depression and suicidal

contemplations. will testify regarding his treatment of Plaintiff and her emotional condition and its cause. He will testify as to Plaintiff=s treatment, evaluation and prognosis of the Plaintiff. 3. Richard AMike@ Hodges. Mr Hodges will testify that the handling of Plaintiff=s

claim was done in bad faith and violated the covenant of good faith and fair dealing. He will testify consistent with his report and deposition testimony. He will testify that Defendant=s claims handling was willfully and wantonly unreasonable. His report and other submissions has been provided pursuant to F.R.C.P. 26(a)(2)(B). Defendants: 1. Patricia Jean Clisham, Esq. Ms. Clisham has been retained by the Defendants to provide expert testimony in this case with respect to the claims handling by Defendants and will testify that in her expert opinion the Defendants= handling of Plaintiff=s workers= compensation claim was reasonable and in good faith according to the industry standard of care and the workers= compensation statutes and rules. (2) witnesses who may be present at trial (see Fed. R. Civ. P. 26(a)(3)(A)); and

Plaintiff: 1. Sarah May. Dr. May is a psychologist treating Plaintiff=s psychological

conditions. She will testify as to her treatment, evaluation and prognosis of the Plaintiff. 2. Dr. Swarsen. Dr. Swarsen is one of Plaintiff= authorized treating physicians. He

will testify as to the diagnosis and treatment of Plaintiff=s RSD. 3. Dr. Fine. Dr Fine is treating Plaintiff for her RSD, among other conditions. Dr.

Fine diagnosed chronic left ankle pain post fracture. He found tibial nerve irritation at the level 10

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of the tarsal tunnel posttraumatic. treatment, evaluation and prognosis of the Plaintiff. 4. Dr. Ring. Dr. Ring is a medical doctor, licensed to practice in the State of

Colorado. He performed three lumbar sympathetic blocks. He will testify consistent with his medical records. 5. Dr. Bell. Dr.Bell is a medical doctor, specializing in psychiatry, and licensed to

practice in the State of Colorado. He will tetify that Dr. Morgan referred Ms. Pena to him on October 12, 2001. As of December, 2001, he had not seen Ms. Pena as defendant failed to authorize his treatment. 6. Dr. Nel is a medical doctor how treated the Plaintiff, specializing in

anesthesiology, and licensed to practice in the State of Colorado. Anesthesia note from October 31, 2001 notes intractable left lower extremity pain. Follow up orthopedic note on March 6, 2003 reported that the Plaintiff did not participate in any additional visits with Dr. Nel or therapy because of transportation issues. 7. Dr. Swarsen. Dr. Swarsen is a medical doctor licensed to practice in the State of

Colorado. Dr. Morgan referred Plaintiff to Dr. Swarsen in July of 2003. Travelers delayed authorization for Ms. Pena to see Dr. Swarsen until on or about September 26, 2003. Defendants: None. (3) witnesses where testimony is expected to be presented by means of a deposition and, if not taken stenographically, a transcript of the pertinent portions of the deposition testimony. See Fed. R. Civ. P. 26(a)(3)(B). 11

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Plaintiff: Plaintiff intends on using deposition testimony (video and enlarged transcript) of Suzanne Liening, Patricia Clisham, Esq., and the 30(b)(6) deponent. Defendants: None. 7. EXHIBITS [a. List the exhibits to be offered by each party and identify those to be stipulated into evidence. This list should be specific enough so that other parties and the court can understand, merely by referring to the list, each separate exhibit which will be offered. General references such as Aall deposition exhibits@orAall documents produced during discovery@are unacceptable.] Plaintiff: (1) Plaintiff:

1. April 24, 2000 letter from Plaintiff attorney to Travelers regarding Dr. Fine=s treatment authorization. 2. May 17, 2000 Treatment note from Dr. Morgan regarding transportation for Plaintiff. 3. May 24, 2000 letter from Plaintiff attorney to Travelers regarding prescription authorization. 4. May 24, 2000 letter from Plaintiff attorney to Travelers regarding denial of taxi-cab vouchers. 5. Nov 24, 2000 letter from Plaintiff attorney to Travelers regarding denial of taxi vouchers. 6. Oct 18, 2001 letter from Plaintiff attorney to Travelers requesting additional taxi vouchers. 7. Oct 22, 2001 Handwritten letter from Lynn Best, RN to Susan Liening regarding Dr. Morgan=s psychiatric referral of Plaintiff. 8. Nov 8, 2001 letter from Plaintiff attorney to Travelers enclosing Dr. Morgan=s November 1, 2001 letter for additional taxi vouchers. 9. Nov 9, 2001 letter from Plaintiff attorney to Travelers regarding Dr. Morgan=s referral to Dr. Bell for a psychological evaluation. 12

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10. Dr. Morgan=s Nov 1, 2001 letter regarding continuation of taxi-cab vouchers. 11. Nov 13, 2001 letter from Travelers to Dr. Morgan regarding further medical documentation to support additional taxi vouchers. 12. Nov 15, 2001 letter from Plaintiff attorney to Travelers regarding essential services and additional taxi vouchers. 13. Nov 15, 2001 Traveler=s claims log regarding 16 hours of surveillance of Plaintiff. 14. Nov 29, 2001 letter from Plaintiff attorney to Travelers regarding outrageous conduct. 15. Dec 5, 2001 report from Dr. Morgan. 16. Dec 5, 2001 letter from Plaintiff attorney to Travelers regarding a date for the Workers Compensation hearing. 17. May 2, 2002 letter from Plaintiff attorney requesting payment as Ordered by the ALJ. 18. June 28, 2001 letter from Plaintiff attorney to Travelers regarding collections. 19. July 17, 2002 letter from Plaintiff attorney to Travelers regarding Lynn Best, RN, attending medical appointments without authorization. 20. July 17, 2002 letter from Plaintiff attorney to Travelers regarding TTD benefits interruption. 21. August 15, 2002 letter from Plaintiff attorney to Travelers regarding collection notice. 22. August 21, 2001 letter from Plaintiff attorney to Travelers regarding collections from Denver Health. 23. March 12, 2004 letter from Plaintiff attorney to Ray Lego & Associates regarding pizza making. 24. April 5, 2004 letter from Plaintiff attorney to Ray Lego & Associates regarding suicide. 25. December 27, 2004 letter from Plaintiff attorney to Ray Lego & Associates regarding Dr. Gutterman and harassment of her rape incident 26. Travelers Computer generated claims diary (not identified above). 13

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27. October 12, 2001 Referral and Consultation from Dr. Morgan for psychiatric evaluation with Dr. John Bell, M.D. 28. March 26, 2002 Workers Compensation Transcript. 29. April 25, 2002 Specific Findings of Fact, Conclusions of Law and Order 30. November 18, 2004 Court of Appeals Order, No: 03CA0387 31. December 12, 2004 Defendant=s Appeal to the Supreme Ct. 32. Lynn Best=s/Intracorp records (not identified above). 33. Physical Therapy records. 34. Medical reports which diagnose Plaintiff=s RSD. 35. Dr. Swarsen=s records. 36. Dr. Morgan=s records (not identified above). 37. Dr. May=s records. 38. Dr. Fine=s records. 39. Dr. Pock=s records. 40. Dr. Nel=s records. 41. Dr. Ring=s records. 42. Collection Notices from Apria Health Care. 43. Collection Notices from Denver Health. 44. Deposition of Susan Liening. 45. Deposition of Ms. Clisham. Please advise as to stipulation or objection, stating the objection. Plaintiff intends to stipulate to Defendant=s exhibits in exchange for Defendants agreeing to the same. (Plaintiff only objects to Defendant=s Exhibit L based on disclosure, but will withdraw objection should the parties agree to a deposition).

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(2) A.

Defendants: Letter from Plaintiff attorney to Travelers dated October 18, 2001, requesting additional taxi

vouchers. TRAV 0022. B. Letter from Plaintiff attorney to Travelers dated November 8, 2001, enclosing November 1,

2001 letter from Dr. Steven J. Morgan. TRAV 0017. C. Letter from Steven J. Morgan, M.D. to Ato whom it may concern@ dated November 1, 2001.

TRAV 0018. D. E. Letter from Suzanne Liening to Dr. Morgan dated November 13, 2001. TRAV 0016. Letter from Plaintiff=s attorney to Suzanne Liening dated November 15, 2001. TRAV 0015.

F.Application for Handicap Parking Privileges by Susan Pena dated March 7, 2001. TRAV 0100. G. H. September 19, 2001 medical report from Dr. Morgan. TRAV 0957. Letter from Lynn Best, RN, to Dr. Morgan dated October 10, 2001. TRAV 0019.

I. October 12, 2001 physical therapy record from Denver Health. TRAV 0958. J. December 5, 2001 medical report from Dr. Morgan. TRAV 0959-0960. K. L. Letter from Suzanne Liening to Dr. Morgan dated January 3, 2002. TRAV 024. Demonstrative exhibit regarding Plaintiff=s attendance record at Denver Health physical

therapy during 2000 and 2001. M. Report by Wade Thomas & Associates for December 5, 2001 surveillance. TRAV 0157-

0158. N. O. Surveillance videotape from December 5, 2001 of Plaintiff Susan Pena. Letter from Plaintiff=s attorney to Suzanne Liening dated November 29, 2001. TRAV 0023.

P.May 17, 2000 medical report from Dr. Morgan. TRAV 0955-0956. Q. Letter from Dr. Steven Morgan dated May 17, 2000 regarding Susan Pena. TRAV 0098. TRAV 0946. TRAV 0947.

R. September 19, 2001 File Notes completed by Ms. Best. S. December 14, 2001 File Notes completed by Ms. Best. 15

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T. December 18, 2001 Letter from Ms. Best to Plaintiff=s attorney Marc Bendinelli. TRAV 0948. U. January 15, 2002 Task Assignment Report completed by Ms. Best. V. March 15, 2002 Task Assignment Report completed by Ms. Best. TRAV 0949. TRAV 0950.

W. April 13, 2002 Task Assignment Report completed by Ms. Best. TRAV 0951-0952. X. November 6, 2003 Closure Report completed by Ms. Best. TRAV 0953-0954. Y. Any exhibit listed by the Plaintiff. b. Copies of listed exhibits must be provided to opposing counsel and any pro se

party no later than five days after the final pretrial conference. The objections contemplated by Fed. R. Civ. P. 26(a)(3) shall be filed with the clerk and served by hand delivery or facsimile no later than 11 days after the exhibits are provided. 8. DISCOVERY Discovery will be completed by the discovery cut-off date of September 1, 2005. Plaintiff shall take the 30(b)(6) deposition as permitted by the Court. Unless otherwise ordered, upon a showing of good cause in an appropriate motion, there will be no discovery after entry of the final pretrial order. 9. SPECIAL ISSUES Plaintiff may seek to attempt to invoke the doctrine of collateral estoppel (or issue preclusion) to avoid relitigating an April 2002 decision by an Administrative Law Judge (ALJ) that assessed statutory penalties against Travelers for denying Plaintiff taxi vouchers between December 1, 2001 and March 26, 2002. The doctrine of collateral estoppel precludes relitigation of an issue that was already litigated and decided in a previous proceeding. Bebo Constr. Co. v. Mattox & O'Brien, P.C., 990 P.2d 78 (Colo. 1999). The following factors must be satisfied to apply the 16

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doctrine: (1) the issue precluded is identical to an issue actually determined in the prior proceeding; (2) the party against whom estoppel is asserted was a party in the prior proceeding; (3) there is a final judgment on the merits in the prior proceeding; and (4) the party against whom estoppel is asserted had a full and fair opportunity to litigate the issue in the prior proceeding. Union Ins. Co. v. Hottenstein, 83 P.3d 1196, 1202 (Colo. App. 2003). Defendants contend that collateral estoppel is inapplicable to this case, because the issue sought to be precluded is not identical to an issue actually determined by the ALJ in the prior proceeding and because Travelers did not have a full and fair opportunity to litigate the issue in the prior proceeding. To the extent Plaintiff seeks to invoke this doctrine, briefing on the issue is appropriate. Defendants intend to file a motion in limine to exclude reference to all or part of this ALJ decision. 10. SETTLEMENT

a.

Counsel for the parties met in person on April 25, 2005, to discuss in good faith

the settlement of the case. After April 25, 2005, counsel for the parties have engaged in settlement negotiations by telephone. Defendants have served a statutory offer of settlement under Colorado law to Plaintiff, which was rejected. b. The participants in the April 25, 2005 settlement conference included counsel for

both parties and a representative of Defendant Travelers. c. d. October. 17 The parties were promptly informed of all offers of settlement. Counsel for the parties may hold a future settlement conference in September or

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e.

It appears from the discussion by all counsel that there is:

some possibility of settlement. f. g. See d. above. Counsel for the parties considered ADR in accordance with D.C.COLO.LCivR.16.6. 11. OFFER OF JUDGMENT Counsel acknowledge familiarity with the provision of rule 68 (Offer of Judgment) of the Federal Rules of Civil Procedure. Counsel have discussed it with the clients against whom claims are made in this case. 12. EFFECT OF FINAL PRETRIAL ORDER Hereafter, this Final Pretrial Order will control the subsequent course of this action and the trial, and may not be amended except by consent of the parties and approval by the court or by order of the court to prevent manifest injustice. The pleadings will be deemed merged herein. This Final Pretrial Order supersedes the Scheduling Order. In the event of ambiguity in any provision of this Final Pretrial Order, reference may be made to the record of the pretrial conference to the extent reported by stenographic notes and to the pleadings. 13. TRIAL AND ESTIMATED TRIAL TIME; FURTHER TRIAL PREPARATION PROCEEDINGS 1. 2. The trial is to a jury; The Defendant believes trial time is four days, Plaintiff believes the trial time is five days. 3 United States District Court for the District of Colorado.

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DATED this _____ day of _____________ 2005. BY THE COURT:

____________________________________ United States Magistrate Judge

APPROVED: BENDINELLI LAW OFFICE, P.C.

APPROVED: MONTGOMERY, KOLODNY, AMATUZIO & DUSBABEK, L.L.P.

s/ Marc Bendinelli Marc Bendinelli W. Joseph Lapham II 11184 Huron Street, Suite 10 Denver, Colorado 80234 Telephone: 303-940-9900 Facsimile: 303-940-9933 e-mail: [email protected] ATTORNEYS FOR PLAINTIFF

s/ Kevin F. Amatuzio Kevin F. Amatuzio Erik R. Neusch 475 17th Street, Suite 1600 Denver, Colorado 80202 Telephone: 303-592-6600 Facsimile: 303-592-666 e-mail [email protected] e-mail [email protected] ATTORNEYS FOR DEFENDANTS

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