Free Motion for Leave - District Court of Colorado - Colorado

Case 1:03-cv-02462-WYD-PAC

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 03-CV-02462-WYD-PAC

BOBBY L. PADILLA Plaintiff, v SAN LUIS CENTRAL RAILROAD COMPANY, Defendant.

FINAL PRETRIAL ORDER 1. DATE AND APPEARANCES

The Final Pretrial Conference was held in this matter at 10:00 A.M. on February 3, 2006. John A. "Jack" Kintzele, Evan S.

Esquire appeared on behalf of the Plaintiff.

Lipstein, Esquire appeared on behalf of the Defendant. 2. JURISDICTION

The Court has jurisdiction of this matter pursuant to 28 U.S.C. § 1331 as this is a civil action arising under the laws of the United States, including its Constitution, Statutes, Rules of Procedure and precedents. 3. A. CLAIMS AND DEFENSES On or about April 11, 2002, in

Plaintiff's Claims:

the course and scope of his employment with defendant San Luis

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Railroad Company, plaintiff suffered injuries and/or aggravation of pre-existing conditions as a result of the repetitive lifting of heavy racks off of and within railroad cars in the form of occupational diseases, involving back pain and injuries, caused and contributed by the defendant's failure to perform its responsibilities and duties required under and by the Federal Employers' Liability Act. The

defendant was negligent in failing to comply with its statutory and/or other nondelegable duties to provide the plaintiff with a safe place to work with; to provide plaintiff safe and proper equipment to do his job; to provide safety customs and practices for all of its workers, including plaintiff to minimize injury; and to provide the work place with sufficient personnel, equipment and aid to do the heavy, repetitive lifting required by plaintiff's job. These acts of

negligence of defendant caused plaintiff to become injured and to suffer impairments and disabilities as a result of his occupational diseases. As a result of the defendant's negligence, the plaintiff has sustained injuries and damages, including: permanent and disabling spinal injuries, which deny plaintiff the ability to work and to earn a living; and the right to enjoy life and pursue happiness. Defendant's negligence further caused

plaintiff to incur expenses for medical and hospital services

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for the past, present and the future, causing plaintiff physical and conscious pain and suffering for the past, present and the future and causing plaintiff to suffer lost wages and earnings for the past, present and the future, with consequential financial detriment and damage to plaintiff. B. Defenses of Defendant: Defendant admits that

plaintiff was an employee of defendant on or about April 11, 2002. Defendant denies that it was negligent; that plaintiff suffered any injuries on the job, or that any negligence of defendant was a cause of any injuries suffered by plaintiff. As affirmative defenses, defendant asserts that this Court lacks jurisdiction over the subject matter of this action, that plaintiff's claim is barred by his fraudulent inducement of the employment relationship, that plaintiff failed to mitigate his damages and that plaintiff's claim is diminished by his comparative negligence. 4. A. STIPULATIONS

Defendant admits that plaintiff was employed by the

defendant. 5. A. PENDING MOTIONS

Plaintiff's "MOTION TO EXCLUDE THE TESTIMONY OF HENRY

ROTH, MD AS TO THE CONTENT OF ANY OF HIS REPORTS OTHER THAN THE SEPTEMBER 19, 2005 REPORT, EXHIBIT TWENTY-THREE (23) TO HIS DEPOSITIONS, BECAUSE NO OTHER REPORT OF DR. ROTH WAS

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PROVIDED TO THE PLAINTIFF UNTIL DECEMBER 13, 2005, AFTER DR. ROTH'S INITIAL DEPOSITION." 6. A. WITNESSES

Plaintiff's four (4) categories of witnesses: 1. Plaintiff will call lay witnesses include: a. Plaintiff Bobby Padilla P.O. Box 2817, Espanola, NM 87532 will testify to all issues. b. Tonie Padilla P.O. Box 2817, Espanola, NM 87532, who is the wife of plaintiff, will testify to all issues, particularly as to plaintiff's work injuries and how defendant was short-handed. c. Adverse witness J.D. Gray who worked for the defendant at the time of plaintiff's employment who will testify as to the plaintiff's reporting of his injuries and all other issues surrounding this case. d. Raymond Brett Wright, 3165 East US Highway 160, Monte vista, CO 81144 to testify to plaintiff's prior employment at the Tri-Me Potato Company, a potato company and plaintiff's lack of a back, lumbar Workers' Compensation claim while there.

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2. Plaintiff may call lay witnesses include: a. Ricky Martinez, Monte Visa, CO as a member of a different crew may testify as to all issues surrounding this case, particularly how plaintiff injured himself at work at this job, with his working environment reflecting how defendant needed more workers. b. Carlos Archuletta of Alamosa, CO may testify as to all issues surrounding this case, particularly how plaintiff injured himself at work at this job, with his working environment reflecting how defendant needed more workers. c. Chris Mashburn of Monte Vista, CO may testify as to all issues surrounding this case, particularly how plaintiff injured himself at work at this job, with his working environment reflecting how defendant needed more workers. d. Kit Miniclier, former Denver Post staff writer, 1880 Bellaire, Denver, CO 80220 may testify as to his "A railroad that refuse (sic) to die" and any information and materials pertaining to the writing of that article concerning defendant's role in interstate commerce.

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e.

Dallas Norton, Esquire, 9800 Mount Pyramid Court, 4th Floor, Englewood, CO 80112 (303)2566786 will testify as to the habit and custom of Henry Roth, MD and the doctor's statement that his reports depends upon who hires him.

f. g.

Each of the defendant's listed witnesses. Marcus Celada, MD P.O. Box 639, La Jara, CO 81140 may testify as a fact witness as to the care and treatment of the plaintiff.

h.

Dr. Cox, Rio Grande Hospital Services, Inc. 1280 Grande Avenue, Del Norte, CO 81132, may testify as a fact witness as to the care and treatment of the plaintiff.

i.

Dr. Sandoval, 1010 Spruce Street, Espanola, NM 87532, 505-747-1234 may testify as a fact witness as to the care and treatment of the plaintiff.

j.

Wayne K. Auge, II, MD, 1009 Spruce Street, Espanola, NM 87532, 505-747-4144 may testify as a fact witness as to the care and treatment of the plaintiff.

k.

Angela Bratton, Eye Associates, 412 Paseo-De Onate, Espanola, NM 87532 may testify as a fact

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witness as to the care and treatment of the plaintiff. l. Bradley Rowberry, MD 3917 West Road #A, Los Alamos, NM 87544 may testify as a fact witness as to the care and treatment of the plaintiff. 3. Plaintiff will call the following expert witnesses at trial: a. David Wong, MD Denver Orthopedic Clinic 1601 E. 19th Avenue Denver, CO 80218 will testify as to the care and treatment of the plaintiff, as to the necessity and reasonableness of the plaintiff's medical expenses and that the plaintiff will has permanent impairment as a result of his work-related injuries. Dr. Wong

will testify by deposition already taken for purposes of preservation. b. Edwin Healey, MD, 3865 Cherry Creek Drive North #100, Denver, CO 80209 will testify as to his report and as to plaintiff's permanent impairment as a result of plaintiff's work-related injuries and as to the causation of plaintiff's work related injuries, as opposed to other causes. c. James A. Evenson, Ph.D., 1095 West 127th Place, Westminster, CO 80234 will testify as to what

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occurred economically to plaintiff because of his back injuries. Dr. Evenson will consider

plaintiff's age, wage history and disability prognosis and give his reasonable estimates as to plaintiff's economic losses in the past, present and future, based upon objective factors, economic studies and appropriate estimates for a person with plaintiff injured back, who has a history of being a laborer. d. Mark Litvin, Ph.D., of Rehabilitation Specialist, 6025 South Quebec Street #125, Centennial, CO 80111, will testify as to what occurred vocationally to plaintiff because of his back injuries. Dr. Litvin will consider

plaintiff's age, wage history and disability prognosis and give his reasonable estimates as to plaintiff's vocational losses in the past, present and future, based upon objective factors, vocational studies and appropriate estimates for a person with plaintiff injured back, who has a history of being a laborer. 4. Plaintiff may call the following expert witnesses at trial: a. Dr. Martin Sowards, Rio Grande Medical Center

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95-A West First Avenue, Monte Vista, CO 81141 will testify as to the care and treatment of the plaintiff, as to the necessity and reasonableness of the plaintiff's medical expenses and that the plaintiff will has permanent impairment. Plaintiff reserves the

right to call this witness as only a fact witness as a result of his work related injuries. 2. Defendant's four (4) categories of witnesses: 1. Defendant will call lay witnesses include: a. J.D. Gray who worked for the defendant at the time of plaintiff's employment who will testify as to the plaintiff's reporting of his injuries and framed in the inducement. b. 2. Defendant may call lay witnesses include:

3. Defendant will call expert witnesses include: a. Dr. Martin Sowards, Rio Grande Medical Center 95-A West First Avenue, Monte Vista, CO 81141 by transcript.

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b.

Brian Campbell, CPA, 1720 South Bellaire Street, Suite 70 I, Denver, CO 80222, will testify as to what occurred economically to Plaintiff because of his back injuries. Mr.Campbell will consider Plaintiffs age, wage history and disability prognosis and give his reasonable estimates as to Plaintiffs economic losses in the past, present and future, based upon objective factors, economic studies and appropriate estimates for a person with Plaintiffs injured back, who has a history of being a laborer.

c.

Henry Roth, MD, 1221 South Clarkson #300 Denver, CO 80210 will testify as to his September 19, 2006 report.

4. Defendant may call expert witnesses include:

7. 1.

EXHIBITS

Plaintiff's List of Exhibits: 1. Curriculum Vitae of David Wong, MD, Exhibit One (1) to Dr. Wong deposition 2. Dr. Wong's medical records and reports dated 10/15/02 and 10/18/02, Exhibit Two (2) to Dr. Wong deposition 3. Medical records dated 4/11/02, 4/26/02, 4/29/02

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and 5/30,02, Exhibit Three (3) to Dr. Wong deposition 4. Order granting Weber's Motion to Enforce Order Regarding Dr. Roth's Fees 5. 6. Dr. Roth's Fee Reconciliation Order in Van Eaton, granting Defendant's Bill of Costs 7. 10/5/05 letter from Integrated Health Management to Lipstein as to Dr. Roth's Fees 8. 9. Dr. Roth's Contract Fee Agreement for $1980.00 Dr. Roth's Contract Fee Agreement for $8,325.00

10. Dr. Roth's List of Cases 11. Inserts from Dallas Norton's deposition 12. 6/12/03 letter from the American Board of Preventive Medicine concerning Dr. Roth 13. 6/19/03 letter from the University of Cincinnati concerning Dr. Roth 14. 6/27/03 letter from the American Board of Preventive Medicine concerning Dr. Roth 15. Dr. Roth deposition in the Kramer case 16. Dr. Wong cases and fees. 17. October 1998 Biography of Dr. Roth 18. Deposition of Dr. Roth in Kanemoto case 19. Deposition of Dr. Roth in Eckis case

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20. Final Order in Al-Abuljalil case 21. Dr. Wong deposition dated 10/21/04 22. Dr. Roth deposition dated 12/13/05 23. 9/19/05 Padilla report of Dr. Roth 24. Final Order in Timko case 25. Dr. Roth's "stamped" Padilla report dated 9/19/05 26. 1/4/06 Kintzele letter to Lipstein as to changes in 9/19/05 reports 27. 1/5/06 letter from Lipstein to Kintzele 28. Plaintiff's payroll journal 29. 8/5/02 letter from the Department of Labor 30. Plaintiff's personnel file 31. 1/16/06 "e"mail from Lipstein to Kintzele 32. 12/27/05 Dr. Healey addendum 33. 1/16/06 "e"mail from Lipstein to Kintzele 34. 10/5/05 "e"mail from Lipstein to Dr. Roth 35. Portions of plaintiff's deposition 36. Dr. Roth's 9/28/05 Padilla report 37. 12/7/05 letter from Dr. Roth to Seymour 38. 3/27/03 Dr. Sowards' report 39. 6/18/85-4/27/94 medical reports 40. Dr. Roth Return of Service for 1/26/06 deposition

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41. Curriculum Vitae, cases and fees for Dr. Mark Litvin 42. Curriculum Vitae, cases and fees for Dr. James Evenson 43. Curriculum Vitae, cases and fees for Dr. Edwin Healey 44. Dr. Mark Litvin reports 45. Dr. James Evenson report and supplemental report dated 2/18/05 46. Dr. Edwin Healey reports and Addendum dated 12/27/05 47. Medical Examiner's Certificate 48. Dr. Sowards' 4/11/02 medical report 49. Dr. Sowards' 4/22/02 medical report 50. Dr. Sowards' 10/1/02 medical report 51. Dr. Sowards' 10/16/02 medical report 52. Dr. Sowards' 11/15/02 medical report 53. 9/7/04 J.D. Gray deposition 54. San Luis Central Railroad's Articles of Incorporation 55. Lipstein letter to Dr. Roth 56. 10/5/05 letter from Dr. Roth to Lipstein 57. 12/15/05 letter from Lipstein to Dr. Roth 58. Dr. Roth's depositions dated 12/13/05 and

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1/26/06 2. Defendant's List of Exhibits: a. Plaintiff's payroll journal from April 16-30, 2002 b. c. d. e. Dr. Brian Campbell report Dr. Campbell Curriculum Vitae Dr. Roth's September 19, 2005 report Dr. Roth's Curriculum Vitae 8. DISCOVERY

Discovery has been completed. 9. None. 10. SETTLEMENT SPECIAL ISSUES

a. Counsel for the parties, by telephone, is discussing settlement with no commitments, nor offers to do so by defendant. b. The participants in the prior settlement conference included Judge Coan, plaintiff Padilla and J.D. Gray for defendant, as well as counsel. c. The parties were promptly informed of the possible

settlement discussion. d. Counsel for the parties should intend to hold future settlement conferences; however, they must be ordered to do so.

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11.

OFFER OF JUDGMENT

Counsel acknowledges familiarity with the provisions 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 In the event

Pretrial Order supersedes the Scheduling Order.

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. A. 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 Rule 26(a)(30 F.R.C.P. 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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13.

TRIAL AND ESTIMATED TRIAL TIME; FURTHER TRIAL PREPARATION PROCEEDINGS A. B. C. Trial is to the Court. The estimated trial time is five (5) days. The place of trial is Denver, Colorado.

DATED this _____ day of February 2006.

BY THE COURT: ____________________________ Patricia A. Coan United States Magistrate Judge BY THE COURT: ____________________________ Wiley Y. Daniel United States District Court Judge

APPROVED:

s/John A. "Jack" Kintzele____ John A. "Jack" Kintzele 1317 Delaware Street Denver, Colorado 80204 Telephone: 303-892-6494 FAX: 303-893-2053 E-mail: [email protected] Attorney for Plaintiff

s/Evan S. Lipstein___ Evan S. Lipstein 12600 West Colfax Ave. #C-400 Lakewood, CO 80215 Telephone 303-232-5161 FAX: 303-232-5161 Attorney for Defendant

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