Free 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. 03-cv-02639-WYD-OES DAVID R. PRICE, Plaintiff, v. WILSON SPORTING GOODS COM PANY, a Delaware Corporation; TARGET CORPORATION, a M innesota corporation; and TRUE TEM PER SPORTS, INC., a Delaware corporation, Defendants. FINAL PRETRIAL ORDER

1. DATE AND APPEARANCES The final pretrial conference was held on June 21, 2005. Plaintiff David R. Price was represented by Bennett S. Aisenberg and H. Paul Himes, Jr., The Law Offices of Bennett S. Aisenberg, P.C., 1600 Broadway, Suite 2350, Denver, Colorado 80202, telephone 303-861-2500. Defendants Wilson Sporting Goods Company and Target Corporation were represented by Richard A. Waltz, The Waltz Law Firm, 1660 Lincoln Street, Suite 1660, Denver, Colorado 80264, telephone 303-830-8800. Defendant True Temper Sports, Inc. was represented by Scott P. Landry, Ray Lego & Associates, 6060 S. Willow Dr., Suite 100, Greenwood Village, Colorado 80111, telephone 720-963-7000.``

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2. JURIS DICTION The United States Dist rict Court has jurisdiction pursuant to 28 U.S.C., §1332. There is complete divers ity of citizenship. The amount in controversy exceeds $75,000.00 inclusive of interest and costs. Plaintiff is a resident and domiciliary of Colorado, a citizen of the United States, and seeks damages for economic loss, pain and suffering, emotional distress, and loss of enjoyment of life, and permanent physical impairment and disfigurement, totaling well in excess of $75,000.00. Defendants Wilson and True Temper are incorporated under the laws of Delaware. Defendant Wilson's principal offices are located in Illinois, and defendant True Temper's in Tennessee. Defendant Target is incorporated under the laws of M innesota and its principal offices are located there. 3. CLAIMS AND DEFENS ES Plaintiff: Plaintiff was injured on April 28, 2002 by a defective Wilson golf club. Plaintiff purchased a new set of Wilson Ultra golf clubs at Target store in Longmont Colorado in September of 2001. The new clubs had been used only a few times before April 28, 2002. On that date plaintiff, his son and his nephew were golfing at the Sunset Golf Course in Longmont, Colorado. Plaintiff's son had brought the new clubs. While playing on the 9th hole, the Wilson pitching wedge broke and the head separated from the shaft while being swung by plaintiff's son. The head of the club flew through the air with great velocity and boomeranged and hit the

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plaintiff, who was standing well away from the tee, in the head. Plaintiff was severely injured by the force of the impact, rushed to Longmont United Hospital by ambulance, and operated on that same day for right frontal lobe depressed skull fracture with underlying bruising and swelling of the brain. He sustained a traumatic brain injury and went through months of physical, occupational and speech therapy. Experts for all parties subsequently examined and tested the failed Wilson club at the Colorado School of M ines metallurgy lab. Plaintiff's experts reported that the club broke principally because it was defectively manufactured by Wilson. Specifically, the separation occurred because the shaft was not inserted to the bottom of the hosel (as it should have been) and the epoxy used as adhesive to hold the shaft inside the club head hosel was not properly applied. There were gaps (voids) in the adhesive application which weakened the bond between shaft tip and club head hosel and created abnormal stress distributions during normal use. The shaft was also ground over a greater length than called for by Wilson's procedures. Additionally, the shaft was ground too much resulting in a thinning of the shaft walls, and exposed rough/notched areas, all weakening the steel in the area of the break. There was no evidence of abuse or misuse of the clubs during the examination or that they had not been taken care of. Further, the defective area of the club was not apparent to a typical user because the hosel itself and plastic ferrules used for decorative purposes obscured the critical areas. Finally, welding flaws were found in the lot of tubing which True Temper used to make the shaft for Wilson's pitching wedge, and welding flaws or other anomalies (defects) in the pitching wedge shaft were

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found. Neither Wilson, Target nor True Temper made any Rule 26(a)(2) expert disclosures either in chief or in rebuttal. Plaintiff's experts' opinions stand uncontradicted. Plaintiff suffered and will continue to suffer severe pain, emotional distress, and impairment of the ability to enjoy life, permanent physical impairment and disfigurement. His ability to earn a living has been severely impaired or lost completely. He has lost his home. He has sustained substantial health care costs and will incur substantial more costs in the future.

Plaintiff asserts claims for relief against Wilson (who assembled the club), Target (who sold the club to M r. Price), and True Temper (which manufactured and provided the shaft, a component part). The claims are for 1. Strict product liability against Wilson and True Temper, as both are

implicated in producing the defective club; 2. Breach of implied warranty of merchantability against Wilson, Target, and

True Temper, as all are merchants (as they all deal in goods of the kind at issue) who by their sale of the defective golf club and component part breached their respective implied warranties under C.R.S. 4-2-314 that the club was fit for the ordinary purposes for which said clubs are used; 3. Negligence against Wilson and True Temper, as both breached their duty

of reasonable care in producing the pitching wedge or component part thereof; and 4. Negligent and strict liability failure to warn of the dangers of the club

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breaking during normal use, against Wilson, True Temper and Target as all, except for perhaps Target, had notice prior to the date of M r. Price's injuries of numerous instances of defective Wilson Ultra golf clubs, and True Temper shafts which broke and caused injuries. 5. Plaintiff seeks damages for economic loss (past and future loss of income,

future medical and rehabilitation care needs, medical bills incurred to date, and loss of home equity due to forced sale and foreclosure), non-economic damages (pain and suffering, emotional distress, and loss of enjoyment of life), permanent physical impairment and disfigurement, and prejudgment interest from the date of injury. Defendants Wilson and Target Wilson and Target generally deny the allegations of the Plaintiff. Defendants have had no previous incidents similar to that which occurred in two clubs purchased by Plaintiff. Defendants have asserted the following affirmative defenses: Plaintiff's Complaint fails to state a claim or cause of action upon which relief can be granted against These Defendants; the sole and proximate cause of the injuries and damages in question was the negligence or fault of the Plaintiff, or his negligence contributed to the same. On a comparative basis, the negligence of the Plaintiff far outweighs that of the Defendant Wilson and Target, whose negligence is specifically denied; Plaintiff's Complaint, claims and damages, if any, were caused by the actions of third persons over whom these Defendants had neither control nor right of control; Plaintiff assumed a known and unreasonable risk; Plaintiff has failed to mitigate his damages, if any, as required by law; plaintiff's claims are barred by the doctrine of waiver and estoppel; Plaintiff failed to give

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notice of breach of warranty and has failed to comply with the requirements of C.R.S. § 4-2-607 and § 4-1-204; Plaintiff's claims and/or damages, if any, are limited and/or barred by the relevant provisions of C.R.S. §13-21-102.5; Plaintiff's claims and/or damages, if any, are subjected to the relevant provisions of C.R.S. § 13-21-111.5; Plaintiff's claims are barred by course of dealing, usage of trade, or custom of the industry; Plaintiff's claims and/or damages, if any, are barred or reduced by the doctrine of misuse, alteration or modification of the product; Plaintiff's claims are controlled by the relevant provisions of the Colorado Product Liability Act, C.R.S. §§ 13-21-401 et seq.; Plaintiff's claims and/or damages, if any, are barred or reduced by the doctrine of comparative fault as set forth in C.R.S. § 13-21-406; and, Plaintiff's claims and/or damages, if any, are barred or reduced by the doctrine of innocent seller as set forth in C.R.S. § 13-21-402. The Plaintiff was able to work full time without restriction after the accident and has chosen not to do so. Plaintiff was advised by his care givers to follow up with recommendations for treatment and has failed to do so. Plaintiff has not produced tax returns despite requests for the same, claiming that he has not filed returns for an unknown number of years, and his economic claims should be stricken because of his failure to produce said returns. Plaintiff's care givers have recommended that he apply for Social Security benefits and he has failed to follow those recommendations. Defendants have designated as a non-party at fault the plaintiff's son, David Price. Defendant True Temper

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4. S TIPULATIONS 1.Wilson manufactured and assembled the pitching wedge which plaintiff asserts broke and injured him. 2. Wilson distributed its Ultra golf clubs to Target stores, including the

Target store on S. Hover Road in Longmont, Colorado. 3. Wils on assembled and manufactured its Ultra golf clubs with the

intent they reach the consumer without substantial changes, alterations, or modifications. 4. Target stores are general merchandise retail stores which sell sporting

goods, among other merchandise, including Wilson Ultra golf clubs. 5. Plaintiff suffered a head injury on April 28, 2002 while golfing at the

Sunset Golf Course in Longmont, Colorado. 6. Plaintiff gave written notice that he had suffered injuries from t he

broken Wilson Ultra club by certified mail, return receipt requested, letter dated M ay 29, 2002, from plaintiff's counsel to Longmont Target store on South Hover Road. 7. True Temper manufactures steel golf club shafts and sells them to golf

club manufacturers, including Wilson Sporting Goods. 8. 9. True Temper manufactured steel shafts for Wilson Ultra golf clubs. Neither Wilson, Target, nor True Temper provided any type of

warnings with the sale of its golf clubs or component parts that such clubs or parts

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may break during normal use. 5. PENDING MOTIONS There are currently pending: (a) Plaintiff's M otion for Partial Summary Judgment as to

Liability on His First Claim for Relief (Strict Product Liability), and Third Claim for Relief (Negligence), Against Defendant Wilson. Plaintiff's motion was filed on February 9, 2005. Plaintiff's motion seeks partial summary judgment on the basis that his experts have issued reports, which defendants did not contest by expert opinions of their own, opining that the Wilson pitching wedge at issue was defective and unreasonably dangerous primarily because of manufacturing defects, and that reasonable care was not taken in its assembly; and (b) Defendant True Temper's M otion for Summary Judgment filed

on M arch 18, 2005. Plaintiff's Response in Opposition was filed on M arch 31, 2005. 6. WITNES S ES a. Nonexpert witnesses to be called by each party. (1) Witnesses who will be present at trial. A. (i) Plaintiff's Witnesses:

Plaintiff David R. Price, 3820 M ountain View Drive, Evans, Colorado

80620, telephone 720-296-1763. M r. Price will testify concerning: his purchase of

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a new set of Wilson Ultra golf clubs at Target store in Longmont, Colorado; the incident on April 28, 2002 in which he was injured when the pitching wedge his son was swinging broke and struck him in the head; the injuries which he sustained, and the medical and rehabilitative course which he has undergone; his prior health and employment history; his current health status; the effect his injuries have had on his ability to work and perform activities of daily living, on his relationship with family, on his social life, and on his mental health; his loss of income and the resulting loss of his home; the health care expenses which he has incurred; his requests to his attorneys to notify Wils on of his need for funds to support himself due to his incapacity, physical and mental injuries and his approval of letters sent to Wilson and Wilson's representatives requesting financial assistance; and other matters related to his claims. (ii) David W. Price, plaintiff's adult son, 3820 M ountain View Drive,

Evans, Colorado 80620. M r. Price will testify concerning: his father's purchase of the new Wilson golf clubs; the incident on April 28, 2002 in which his father was injured by the broken Wilson pitching wedge; the injuries which his father sustained; his father's prior health, and personality/emotional state and relationship with family; the medical and rehabilitative course which his father underwent since the injury; his father's health, emotional state, personality and relationship with family and friends since the injury; the financial stresses which his father has endured since the incident;

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and his perception of his father's physical limitations and disabilities. (iii) Aaron Hill (Brammer), 1902 Cherry Lane, Johnstown, Colorado

80534, phone 303-378-6555. M r. Hill is the plaintiff's nephew and will testify concerning: the incident on April 28, 2002 in which his uncle was injured, and the injuries sustained; and his perception of the physically and emotionally debilitating effects of M r. Price's injuries. (iv) M ary M ontes, 3820 M ountain View Drive, Evans, Colorado 80620,

phone 970-339-3734. M s. M ontes will testify to her perception of the severity of plaintiff's injuries, the debilitating effects which his injuries have had on his ability to perform normal activities of daily living, the financial stresses which his injuries have caused, and the emotional distress which he has suffered since he was injured. (v) Sharon Brammer, 1902 Cherry Lane, Johnstown, Colorado 80534,

phone 303-378-6555. M s. Brammer is plaintiff's sister and will testify concerning her perception of the physically and emotionally debilitating effects of M r. Price's injuries, and may testify to the use of funds from the s ale of M r. Price's home deposited into her account. (vi) Dr. Wayne Wittenberg, plaintiff's operating surgeon and treating

physician, 300 Exempla Circle, Suite 270, Lafayette, Colorado 80026, phone 303666-8400. Dr. Wittenberg will testify concerning the injuries M r. Price suffered on April 28, 2002, the operation which he performed to repair the fractured skull, and

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his diagnosis, care, treatment and prognosis. B. C. (2) Defendants Wilson and Target's Witnesses: Defendant True Temper's Witnesses:

Witnesses who may be present at trial if the need arises: A. Plaintiff's Witnesses:

(i)

Natalie D'Agostino, 12150 Washington Center Parkway, #9204,

Thornton, Colorado 80233, phone 303-386-4353. M s. D'Agostino may testify concerning M r. Price's health and personality/emotional state prior to his injuries; the injuries he sustained on April 28, 2002; the medical and rehabilitative course which he underwent for treatment of his injures ; her perception of his health since the incident and his current physical and emotional status; the effects his injuries have had on M r. Price's relationship with family and friends; and the financial stresses and consequences which he has endured. (ii) John Doe, whose true identity is unknown. If his identity is

determined before trial, M r. Doe, who was with the plaintiff, his son, and his nephew, when the injury occurred, may testify concerning his knowledge of M r. Price's injuries at the scene and how the injuries were sustained. (iii) Kelly M urphey, and/or Darla M cCartney, M r. Price's boss,

supervisor, and co-worker at M urphey Heating & Air Conditioning, Inc., 1016 ½ Coffman Street, Longmont, Colorado 80501, phone 303-776-9934. M r. M urphey

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and/or M s. M cCartney may testify concerning: M r. Price's employment history with M urphey both prior to April 28, 2002 and subsequent to plaintiff's injuries; his p ay records; the quality of his work; his relationship with co-workers and supervisors; and their perception of the effect which M r. Price's injuries had on his ability to work. (iiii) Dr. Evan Schwartz, Longmont United Hospital, 1950 M ountain View Avenue, Longmont, Colorado 80501, phone 303-651-5111. Dr. Schwartz was M r. Price's treating physician in the emergency room at Longmont United Hospital when he was brought in as a result of his injuries. Dr. Schwartz may testify concerning those injuries, diagnosis, care and treat ment in the emergency room. Dr. Charles J. VanHook, Longmont United Hospital, 1950 (iv) M ountain View Avenue, Longmont, Colorado 80501, phone 303-651-5111. Dr. VanHook was M r. Price's critical care specialist at Longmont United Hospital. He may testify concerning M r. Price's injuries, diagnosis, care, treatment and prognosis. (vi) Nancy M eesey, PT, and/or Kelly M oninger, PT, Longmont United Hospital, 1950 M ountain View Avenue, Longmont, Colorado 80501, phone 303-651-5111. M s. M essey and/or M s. M oninger may testify concerningthe course of physical therapy given to M r. Price in the months immediately following his injury. (vii) Susie Balliet, OT, and/or Karen Stanisich, OT, and/or M ary Odrzywolski, OT, and/or Keri Ross, OT, Longmont United Hospital, 1950 M ountain View Avenue, Longmont, Colorado 80501, phone 303-651-5111. M s. Balliet and/or M s. Stanisich and/or M s. Odrzywolski and/or M s. Ross may testify concerning the course of occupational therapy given to M r. Price in the months immediately following his injury. (viii) Katherine Kudla, ST, and/or Salli Farrin, ST, and/or A nn Galloway, ST, Longmont United Hospital, 1950 M ountain View Avenue, Longmont, Colorado 80501, phone 303-651-5111. M s. Kudla, and/or M s. Farrin, and/or M s. Galloway may testify concerning the course of speech therapy given to M r. Price in the months immediately following his injury. Rich M cCallum or other supervis ors or co-workers at Eastside (ix) Plumbing & Heating, 10381 E. 106th Avenue, Brighton, Colorado 80601, phone 303286-7644. M r. M cCallum or others may testify concerning M r. Price's employment

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history during the time subsequent to his injuries which he worked for Eastside; his pay records; the quality of his w ork; his relationship with co-workers and supervisors; and their perception of the effects his injuries had on his ability to work. (x) M arty Callahan, Gary Fecter, and/or Bob Urich or other supervisors or co-workers at M ark VII Equipment, Inc., 5981 Tennyson Street, Arvada, Colorado 80003, phone 303-423-4910. M r. Callahan, M r. Fecter, M r. Urich or others may testify concerning M r. Price's employment history and pay prior to his commencing work for M urphey Heating & Air Conditioning during the 10 years that he worked for M ark VII Equipment, Inc. (xi) Representatives of Pridemark Paramedic Services which responded to the scene of t he injury on April 28, 2004, P.O. Box 110532, Aurora, Colorado 80042, phone 303-431-6181. These individuals may testify concerning their response to the Sunset Golf Course on April 28, 2002, M r. Price's injuries at the scene, and the treatment of his injuries and transportation of M r. Price to Longmont United Hospital. (xii) Dan Ditirro, Ron Goad and/or Troy Reed, 225 K imbark Street, Longmont, Colorado 80501, phone 303-651-8424, all members of the Longmont Fire Department who responded to the scene of the injury on April 28, 2002. These individuals may testify concerning their response to the scene of the injury and their knowledge of M r. Price's injuries at the scene. (xiii) A Representative of United Healthcare Insurance Company, P.O. Box 740800, Atlanta, Georgia 30374, phone 1-800-842-8000. This individual may testify concerning itemized billings/statement of services rendered from plaintiff's heath care providers relating to his injuries and United Healthcare's payment records pertaining to those medical bills. (xiv) A Representative of AFLAC Insurance Company, Columbus, Georgia 31999, phone 1-800-992-3522. This individual may testify concerning itemized billings and statements of services rendered from plaintiff's health care providers relating to his injuries and AFLAC's payment records pertaining to those medical bills. (xv) Jody Vigil, PT, CPEE, Boulder Community Hospital, M apleton Center, 311 M apleton Avenue, Boulder, Colorado 80301, phone 303-443-0230. M s. Vigil may testify concerning her functional capacity evaluation of M r. Price in August 2002. (xvi) Joyce Trio and/or other representative(s) of Target store on South Hover Road in Longmont, Colorado and/or a representative of Target store's corporate offices. These individuals may testify concerning the general nature of their business, the store's sale of Wilson golf clubs, any known or suspected defects, and any prior notifications of injuries from the use of their clubs. (xvii) Ed Hlinke, Peter Butch, Jim Lesniak, Steve Pollard, Ken Riddle, and/or

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other representative(s) of Wilson Sporting Goods Company. These individuals may testify concerning t he general nature of their business, the design, manufacture, distribution, sale, and warranty of Wilson golf clubs, any known or suspected defects, and any prior notifications of injuries from the use of their clubs. (xviii) Russell M inick, Stephen Brown, Gene Pierce, G rohon Horwood, and/or other representative or representatives of True Temper Sports, Inc. These individuals may testify concerning the general nature of their business, the design, manufacture, distribution and sale of True Temper shafts, any known or suspected defects, and any prior notifications of injuries from the use of their shafts or clubs made with their shafts. (xix) Rebuttal witnesses. (xx) Any witness listed by the defendants. (xxi) Plaintiff reserves the right to endorse additional witnesses who come to light in defendants' responses to the outstanding discovery referred to in section 8, below. B. Defendants Wilson and Target's Witnesses: (i) Steve Pollard, Customer Service M anager 8700 W. Bryn M awr, Chicago 60632 773-714-6400, would have control and access over the records of Wilson; M r. Ed Hlinke, Wilson Sporting Goods, 8700 W. Bryn M awr, Chicago 60632 (ii) 773-714-6400, would have control and access over the records of Wilson; Tom Nelson, 5 South 720 M eadow Lake Dr., Naperville, IL 60540, 708-355(iii) 5684 as to the design of the clubs (see Defendants' disclosures); (iv) M ike Vrska, 1420 W. M cDermott Rd. # 611, Allen TX 75013 (no known phone number) as to the design of the clubs (see Defendants' disclosures); M elinda Hatfield, 301 W. Grundy St., Tullahoma, TN 37388, 931-455-7581 (v) and 931-461-0344 as to the manufacture of the clubs (see Defendants' disclosures); M r. Peter Butch, Wilson Sporting Goods, Inc., 8700 W. Bryn M awr Ave., (vi) Chicago, Illinois 0631; 1-773-714-6438. M r. Butch would have knowledge of the policies and procedures of Wilson Sporting Goods, Inc., and other information regarding the sale of the product at issue; (vii) Dr. Julie Stapleton, see Plaintiff's Disclosures (viii) Any witness listed by any other party Any witness necessary for rebuttal. (ix) C. b. Defendant True Temper's Witnesses:

Expert witnesses to be called by each party. (1) Plaintiff's expert witnesses: (A) Dr. Nancy Powers, 701 E. Hampden Avenue, Suite 370, Englewood,

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Colorado 80110, phone 303-692-8888. Dr. Powers will testify concerning: her neuropsychological consultation and evaluation of M r. Price initially in August, September and October of 2002, and follow up consultation and reevaluation in October and November of 2003; the physical, cognitive, and psychological deficits from the injuries which M r. P rice suffered on April 28, 2002; the medical/psychological/rehabilitative care which he needs to cope with the effects of his injuries; and his prognosis; and any other matters discussed in her reports and during her deposition. (B) Bastiaan E. Cornelissen, Ph.D., P.E., Jacobson Forensic Engineering, Inc., 10184 West Belleview Avenue, Suite 310, Littleton, Colorado 80127, phone 303-948-9515. M r. Cornelissen will testify concerning his inspection, testing, and analysis of the pitching wedge which broke and injured the plaintiff, and the probable cause(s) of the break; and may testify concerning the related analysis of another club (the 4-iron) in the same set of clubs as the pitching wedge; and any other matters discussed in his reports and during his deposition. (C) James M . Gracey, Ed.D., C.R.C., Colorado Institute for Injury Rehabilitation, Inc., 1660 South Albion Street, Suite 1010, Denver, Colorado 80222, phone 303-757-6970. Dr. Gracey will testify concerning his analysis of M r. Price's life care needs resulting from his injuries; and any other matters discussed in his reports and during his deposition. (D) Dr. Patricia L. Pacey, Pacey Economics Group, 6630 Gunpark Drive, Suite 200, Boulder, Colorado 80301, phone 303-530-5333. Dr. Pacey will testify concerning her analysis of the economic loss suffered by M r. Price resulting from his injuries; and any other matters discussed in her reports. (E) Chester S. Shira, metallurgist and expert in design and production of golf clubs, 114 Cliff Court, Southern Pines, North Carolina 28387, phone 910-6929539. M r. Shira will testify concerning his inspection, testing and analysis of the pitching wedge which broke and injured the plaintiff and the probable cause(s) of the break; and related analysis of another club (the 4-iron) in the same set of clubs as the pitching wedge; and any other matters discussed in his reports and during his deposition. Dr. Julie Stapleton, phy s ical medicine and rehabilitation, 5277 (F) M anhattan Circle, Suite 100, Boulder, Colorado 80303, phone 303-499-9950. Dr. Stapleton will testify concerning her medical evaluation of M r. Price and her opinion of his medical and psychological condition, the care which he needs to cope with the effect s of his injury, and his prognosis; and any other matters discussed in her reports and during her deposition. Pat M cKenna, OTR, 8745 West 14th Avenue, Suite 112, Lakewood, (G) Colorado 80215, phone 303-907-9211. M s. M cKenna will testify concerning her several day work performance and occupational feasibility evaluation done on M r.

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Price in M ay of 2004; and any other matters discussed in her reports and during her deposition. (H) Dr. Edvin M anniko, OD, 1776 South Jackson Street, Suite 220, Denver, Colorado 80210, phone 303-691-9128. Dr. M anniko will testify concerning his vision evaluation done on M r. Price in June of 2004; and any ot her matters discussed in his reports. (I) Treating physicians who may give expert opinion within the scope of their care and treatment of the plaintiff, including: (i) Dr. Evan Schwartz Dr. Wayne Wittenberg (ii) Dr. Charles Van Hook (iii) (2) Defendants Wilson and Target's Expert Witnesses: None. Defendant True Temper's Expert Witnesses: None. All witnesses are expected to testify in person.

(3)

7. EXHIBITS (1) Plaintiff's exhibits: 1. Price. 2. 3. 4. and 4-iron. 5. the fact. Photographs of the Sunset Golf Course site of the injury, taken after Wilson warranty cards. Golf Digest Preferred Customer Survey post cards. Wilson Ultra set of clubs and bag, excluding broken pitching wedge Price code from box packaging the Wilson Ultra set purchased by M r.

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6.

Pridemark Paramedic Services records pertainingto its response to the

scene of the injuries. 7. Longmont Fire Department records pertaining to its response to the

scene of the injuries. 8. All medical records of Longmont United H os p ital, including M r.

Price's treating physicians, therapists, and other heath care providers at Longmont United. 9. Photographs of M r. Price's head injury as it appeared after he returned

home from the hospital. 10. 11. 12. Plaintiff's baseball cap worn at the time of the injury. Boulder Community Hospital Functional Capacity Evaluation Report M ay 29, 2002 certified mail, return receipt requested letter Bennett

S. Aisenberg to Longmont Target store, re: notice of defective product for breach of warranty and M r. Price's injuries. 13. Signed receipt for M ay 29, 2002 certified mail letter, Bennett S.

Aisenberg to Longmont Target store. 14. June 12, 2002 letter Joyce Trio, T arget, to Bennett S. Aisenberg

acknowledging receipt of notice of plaintiff's claims. 15. July 2, 2002 letter Pamela Hatcher, Zurich to Bennett S. Aisenberg

acknowledging receipt of notice of plaintiff's claims (to be redacted).

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16.

Pre-destructive testing photographs, and destructive testing

photographs, of the broken Wilson pitching wedge and 4-iron taken by Jacobson Engineering. 17. The Wilson Ultra pitchingwedge which broke and injured the plaintiff

(in its post-destructive testing form). 18. form). 19. Wilson " Tullahoma golf process specifications" [Wilson bates The Wilson Ultra 4-iron which broke (in its post-destructive testing

stamped 0192-0198]. 20. 21. 22. 23. Wilson drawings and parts/process descriptions [Wilson 0199-0209]. True Temper process and specification narrative. True Temper Sequence of Golf Shaft Operations. True Temper customer/product sales listing for Wilson Sporting

Goods Co., 1999-2000 - 2001. 24. drawing. 25. 26. 27. Procedure" . True Temper.com web pages, re: " Reshafting a Club" . True Temper spread sheet of injuries from broken shafts. Wilsonsports.com web page, re: " Golf Club Warranty-Customer T rue Temper " Purpose M ens"Parallel Tip Iron Shaft des ign All

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28. listing. 29.

Computer printout of Wilson Ultra package set of " defective goods"

Zurich risk detail reports, re: injuries from broken Wilson golf clubs

(to be appropriately redacted). 30. January 2, 2003 letter Bennett S. Aisenberg to Zurich N orth

American, re: request for interim financial assistance (to be redacted). 31. M arch 25, 2003 letter H. Paul Himes to Dick Waltz, Esq., re: request

for interim financial assistance. 32. January 30, 2004 letter, H. Paul Himes t o D ick Waltz, Esq., re:

request for interim financial assistance. 33. February 20, 2004 letter H. Paul Himes t o D ick Waltz, Esq., re:

request for interim financial assistance. 34. Health care and prescription provider billings including: (a) (b) (c) (d) (e) (f) (g) Longmont United Hospital Dr. Prochazka, Anesthesiologist Pridemark Paramedic Services Dr. Wittenberg Rocky M ountain M edical Imaging The Optical Center, Inc. Safeway Pharmacy

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35.

United Healthcare records pertaining to the treating physicians' and

other health care providers' care of M r. Price's injuries, and the charges therefore, and the payments by United Health care, including: (a) (b) 36. M edical payment summary Explanation of benefits

AFLAC payment summary pertaining to the treating physicians' and

other heath care providers' care of M r. Price's injuries, and the charges therefore, and the payments by AFLAC. 37. 38. 39. 40. 41. M r. Price's W-2's for years 1998 through 2003. M r. Price's personnel file from M urphey Heating& Air Conditioning. M r. Price's personnel file from M ark VII Equipment. Employment and pay records from Eastside Plumbing & Heating. February 4, 2004 letter M ichael D. Stewart, Esq., to David R. Price

and M arian E. Price, re: notification of home mortgage default, demand for cure, and notice of possible foreclosure. 42. April 8, 2004 First American Heritage Title Company, Seller's

Settlement Statement, re: 908 Glen Heather Court. 43. January 30, 1993, Warranty Deed, Katherine Durben to David R.

Price and M arian E. Price, re: 908 Glen Heather Court. 44. Weld County Assessor property profile, re: 908 Glen Heather Court.

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45. 46.

Any exhibits listed by any other party. Any exhibits needed for rebuttal.

Plaintiff reserves the right to endorse additional exhibits which come to light in defendants' responses to the outstanding discovery referred to in section 8, below. (2) A. B. C. Defendant Wilson and Target's Exhibits: Plaintiff's answers to interrogatories Plaintiff's deposition Any document produced in discovery by either Plaintiff, Wilson, Target or

True Temper D. E. Any document listed by any other party Any exhibits necessary for rebuttal

Plaintiff objects to the generic, non-specific designation of exhibits by defendants Wilson and Target.

(3)

Defendant True Temper's Exhibits. 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.

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8. DIS COVERY Discovery has been completed, with the following exceptions: a. Deposition of Ed Hlinke or other representatives of Wilson

Sporting Goods Company, not yet scheduled. b. Deposition of Stephen Brown and other representatives of

True Temper Sports, Inc., not yet scheduled. c. Complet ion of Wilson and True Temper responses to

plaintiff's written discovery, per plaintiff's counsel's M arch 31, 2005 letter to defendants' counsel, attached. 9. S PECIAL IS S UES The Court may wish to consider before trial the following special issues of law: a. 1. Plaintiff anticipates filing before trial motions in limine:

to preclude defendants from asking any questions about, or making

any comments or references to, plaintiff's failure to file income tax returns;

2.

to preclude defendants from asking any questions about, or making

any comments or references to Social Security disability benefits; 3. to preclude defendants from asking any questions about, or

making any comments or references with respect to, the prior arrests, misdemeanor charges, criminal dispositions w ithout convictions, or civil suits or proceedings,

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concerning the plaintiff, his son, and his friend M ary M ontes. There may be additional evidentiary matters plaintiff may ask the Court to consider before trial. Additionally, if defendants Wilson and Target intend to elicit any opinions from their " may call"witnesses, plaintiff will object and file motion(s) in limine to preclude such opinions. 4. Defendants Wilson and Target anticipate filing motions in limine that

the witnesses not be referenced by first names, that there be no mention of insurance and that there be no mention of settlement discussions. Defendants further anticipate filing a motion to strike Plaintiff's listed exhibits 30, 31, 32 and 33 unless counsel for Plaintiff intends to be a witness at trial, in which case Defendants will file a motion for recusal. 10. S ETTLEMENT Counsel for each of the parties certifies that: a. Counsel for the parties met in person on M arch 17, 2005 before

M ediator Collie Norman to discuss in good faith the settlement of the case. b. The participants in the settlement conference included each of the

parties or their representatives, and counsel. c. d. The parties were promptly informed of all settlement offers. Counsel for the parties (do) (do not) intend to hold future settlement

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conferences. e. It appears from t he discussion by all counsel that there is

(good/some/little/no) possibility of settlement. f. There is no settlement conference scheduled before the magis trate

judge and no further alternative dispute resolution method scheduled or contemplated. g. Counsel for t he parties considered ADR in accordance with

D.C.COLO.LCivR.16.6, and a private settlement mediation was held on M arch 17, 2005 before M ediator Collie Norman, but the case was not settled. 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 were 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

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the extent reported by stenographic notes and to the pleadings.

13. TRIAL AND ES TIMATED TRIAL TIME; FURTHER TRIAL PREPARATION PROCEDURES 1. 2. 23, 2006. 3. in Denver. 4. There is a trial preparation conference scheduled for January The situs of the trial is the United States District Court for Colorado Trial is to a jury. Estimated and scheduled trial time is five (5) days, beginning January

11, 2006. Dated at Denver this day of June 23, 2005 BY THE COURT: s/ O. Edward Schlatter ____________________________________ O. Edward Schlatter United States M agistrate Judge