Free Pretrial Order - District Court of Colorado - Colorado

Case 1:04-cv-01039-EWN-PAC

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Judge Edward W. Nottingham Civil Action No. 04-cv-01039­ EWN ­ PAC

APRIL C. HOFF, Plaintiff, v. SANDRA J. McCLURG and JASON DEARMAN, Defendants.

FINAL PRETRIAL ORDER

DATE OF CONFERENCE United States District Court Judge Edward W. Nottingham conducted a final pretrial conference on Friday, October 28, 2005. Counsel for all of the Parties were present at, and participated in, this conference. JURISDICTION Jurisdiction of this case is based upon the diversity provisions of 28 U.S.C. §1332(a)(1). Plaintiff Hoff is a resident of the State of California, Defendant McClurg is a resident of the State of Colorado and Defendant Dearman is a resident of the State of Florida. Plaintiff Hoff seeks damages in excess of the $75,000 jurisdictional limit.

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CLAIMS AND DEFENSES Plaintiff Hoff alleges that Defendants McClurg and Dearman were negligent per se in that: (1) Defendant McClurg violated C.R.S. § 42-4-202 by driving a vehicle in an unsafe condition on a highway thereby endangering Plaintiff and (2) Defendant Dearman similarly violated C.R.S. § 42-4-202 by causing Defendant McClurg to drive a vehicle in an unsafe condition on a highway thereby endangering Plaintiff. Defendants McClurg and Dearman assert that they are not negligent per se because their actions did not violate the statute and Plaintiff's injuries, if any, were not proximately caused by their violation of the statute, if any. Defendants also assert they are not negligent because Defendant McClurg faced a sudden mechanical emergency and acted reasonably in response thereto. In addition, Defendants assert that Plaintiff Hoff's comparative fault, with regard to her allegedly negligent operation of her motorcycle, bars or reduces her claims. STIPULATIONS None at this time. PENDING MOTIONS None. WITNESSES a. Non-Expert Witnesses 1. Plaintiff: a. witnesses who will be present at trial 1. April Hoff, 2731 Erringer Road, Unit 34, Simi Valley, CA 93065-1150, (805) 526-4304 2. Sandra McClurg, 3239 South Parker Road, #A-109, Aurora, CO, (720) 629-5605 -2-

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3. Jason Dearman, P.O. Box 121, Bushnell, FL (352) 303-3538 4. Colorado State Patrol Officer Steven Maestas, Denver, CO 5. Any necessary records custodians 6. Any witness necessary for impeachment or rebuttal 7. Any witness listed by Defendants b. witnesses who may be present at trial if the need arises 1. Chris Rice, address unknown 2. Jeffrey Knutsen, 1501 Orchard Avenue, Boulder, CO, (303) 949-0354 3. Zachary Wilson, 6767 WCR 19, Ft. Lupton, CO 80621, (303) 871-0181 2. Defendants: a. witnesses who will be present at trial 1. 2. Jason Dearman, P.O. Box 121, Bushnell, Florida; (352) 303-3538 (in person). Sandra J. McClurg, 3239 South Parker Road, #A-109, Aurora, Colorado; (720) 629-5605

(in person). b. 1. witnesses who may be present at trial if the need arises:

The plaintiff, April C. Hoff, 2731 Erringer Road, Unit 34, Semi Valley, California 93065-

1150; (805) 526-4304 (in person). 2. 3. Colorado State Patrol Officer Steven Maestas, Denver, Colorado (in person). Representatives of Used Pickup Parts East, Inc., 1370 Zeno Street, Aurora, Colorado

80011; (303) 364-5427 (in person). 4. Any necessary records custodian of health care providers of the plaintiff who have seen

her both before and after the subject accident (in person). -3-

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5. 6.

Any necessary witness for rebuttal or impeachment (in person). Any witness listed by plaintiff or co-defendant (in person). b. Expert Witnesses 1. Plaintiff a. witness who will be present at trial

1.

Michael Lee, M.D. (Plaintiff's treating physician), 7320 Woodlake Avenue, Suite 150,

West Hills, CA 91307, will testify via the Court's videoconference equipment or by videotaped deposition. b. witnesses who may be present at trial if the need arises 2. Defendants:

a. witness who will be present at trial 1. Michael C. Higgins, P.E., of Higgins & Associates, Inc., 16474 Willow Wood Court,

Morrison, Colorado 80465; (303) 972-4300 (in person). b. witnesses who may be present at trial if the need arises None EXHIBITS a. 1. List of Exhibits

Plaintiff: a. b. c. d. Plaintiff's medical records Plaintiff's medical bills and bill summary from Plaintiff's health insurer Colorado State Patrol accident report and file Photographs of Plaintiff's injuries and Plaintiff's motorcycle

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e. f. 2.

Any document necessary for impeachment or rebuttal Any document listed by Defendants

Defendants: A. The Colorado State Patrol file, including the State of Colorado Traffic

Accident Report prepared by the investigating state trooper; Officer Steven Maestas' notes; the Colorado State Patrol Case Report; April Hoff's Driver's Statement; Jeffrey Knutsen's statement; Zachary Wilson's statement; and Sandy McClurg's statement. B. C. 2002. D. June 21, 2002. E. F. Higgins, P.E. G. H. I. J. K. L. Higgins & Associates, Inc.'s Photographs of Defendant's Vehicle. Tax Returns of Plaintiff April Hoff. Employment Records of Plaintiff April Hoff. Fitness Aquatics & Sports Physical Therapy Medical Records. Community Medical Group Medical Records. Northglenn Ambulance Medical Records. -5Curriculum Vitae of Michael Higgins, P.E. November 12, 2002 Report of Higgins & Associates, Inc. and Michael Transcribed, recorded statement of Defendant Sandra McClurg dated Photographs of Plaintiff's 2002 Harley Davidson Motorcycle. Transcribed, recorded statement of Plaintiff April Hoff dated June 10,

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M. N. O. P. Q. R. S. T. U. V. W. b.

Rose Medical Center Medical Records. Carepoint, Inc. Medical Records. Radiology Specialists of Denver Medical Records. Professional orthopedics Medical Associates Medical Records. Advanced Diagnostic Center Medical Records. Hanger Prosthetics and Orthopedics Medical Records. Southern California Aquatic Therapy, Inc. Medical Records. Plaintiff's Other Pre-Accident Medical Records. Plaintiff's Other Post-Accident Medical Records. Any exhibits necessary for rebuttal. Any exhibit listed by plaintiff or co-defendant. Copies of listed exhibits must be provided to opposing counsel no later

than five (5) 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 electronic means, hand delivery or facsimile) no later than eleven (11) days after the exhibits are provided. DISCOVERY No further discovery will be permitted. SPECIAL ISSUES None. 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 -6-

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approval by the Court to prevent manifest injustice. The pleadings will be deemed merged herein. This Final Pretrial Order supersedes the Preliminary Pretrial Order and 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. TRIAL AND ESTIMATED TRIAL TIME; TRIAL PREPARATION CONFERENCE a. b. c. Trial shall be to a jury and the Parties estimate the trial to take three (3) days. Trial Date: Monday, December 5, 2005 Trial Preparation Conference Date and Time: November 21, 2005, at 9:00 o'clock a.m. At the Trial Preparation Conference, counsel are directed to comply with the Instructions Concerning Preparation for Trial Preparation Conference delivered to all Parties at the Final Pretrial Conference. DATED this 2nd day of November, 2005. BY THE COURT:

s/ Edward W. Nottingham EDWARD W. NOTTINGHAM United States District Judge

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FINAL PRETRIAL ORDER TENDERED FOR REVIEW: THE SPILLMAN LAW FIRM, LLC

s/ Jason Slade Spillman Jason Slade Spillman 924 Main Street Trenton, MO 64683 (660) 339-7333 ATTORNEYS FOR PLAINTIFF

GEORGE D. BROWNING & ASSOCIATES

s/ Thomas J. Jirak Thomas J. Jirak 11080 Circle Point, Suite 400 Westminster, CO 80020 (303) 657-2000 ATTORNEYS FOR DEFENDANT McCLURG

THE BRAD ROSS-SHANNON LAW FIRM

s/ Brad Ross-Shannon Brad Ross-Shannon Union Terrace 12596 West Bayaud Avenue, Suite 380 Lakewood, CO 80228 (303) 988-9500 ATTORNEYS FOR DEFENDANT DEARMAN

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