Free Order - District Court of Arizona - Arizona

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

John Roehrs, M.D. and Jean Roehrs, his) ) wife, ) Plaintiffs, ) ) vs. ) ) ) Minnesota Life Insurance Company, et al.,) ) Defendants. ) ) )

No. CV-03-1373-PHX-LOA ORDER

This matter arises on the parties' Notice Concerning Feasibility Of Trial Date, filed on February 24, 2006. There is simply too much to do in too short a period of time to schedule a two-week jury trial to begin nearly one month from now. The Court will use the previously suggested dates in mid-April to conduct the Final Pretrial Conference and hear oral arguments on any and all motions in limine. The jury trial will be set at a future date at the Final Pretrial Conference. On the Court's own motion,
IT IS ORDERED that the attorneys who will be responsible for the trial of the lawsuit shall prepare and sign a Proposed Joint Final Pretrial Order and lodge it in the Court's chamber's email box no later than 5:00 p.m. on Friday, April 7, 2006. Counsel shall exchange drafts of the proposed Joint Pretrial Order no later than ten (10) days before the submission deadline.

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IT IS FURTHER ORDERED that the content of the Proposed Joint Final Pretrial Order shall include, but is not limited to, that prescribed in the form of the proposed Joint Final Pretrial Order attached hereto. Statements made shall not be in the form of a question, but shall be a concise narrative statement of each party's contention as to each uncontested and contested issue.

IT IS FURTHER ORDERED pursuant to Federal Rule of Civil Procedure 16(e) and 37(c), the Court will not allow the parties to modify the Joint Final Pretrial Order or introduce at trial any exhibits, witnesses, or other information or to make any objections to exhibits that were not previously specified and/or disclosed as directed by the Court in the Joint Final Pretrial Order, except to prevent manifest injustice. Byrd v. Guess,137 F.3d 1126 (9th Cir. 1999).
IT IS FURTHER ORDERED that the parties shall file and serve all motions in limine1 no later than 5:00 p.m. on Friday, April 7, 2006. Each motion in limine2 shall include the legal basis supporting it. Responses to motions in limine are due by 5:00 p.m. on Friday, April 14, 2006. Replies will not be permitted. The attorneys for all parties shall come to the

A motion in limine has been defined by the U.S. Supreme Court as "in a broad sense...any motion, whether made before or during trial, to exclude anticipated prejudicial evidence before the evidence is actually offered. Luce v. United States, 469 U.S. 38, 40 n. 2 (1984); State v. Superior Court, 108 Ariz. 396, 499 P.2d 152, 153 (1972)("The primary purpose of a motion in limine is to avoid disclosing to the jury prejudicial matters which may compel a mistrial. It should not, except upon a clear showing of non-admissibility, be used to reject evidence"). Motions in limine may consist of two principal forms. First, a party may seek to preclude the opponent from either (1) mentioning or referring to unduly prejudicial, inflammatory, or otherwise inadmissible evidence in an opening statement or (2) eliciting such evidence from one or more witnesses. This is sometimes referred to as a "prohibitive" motion. An additional, more proactive form is used affirmatively to secure a favorable pretrial ruling regarding the admissibility of evidence. This is referred to as a "permissive" motion. See, 21 Charles Wright & Kenneth Graham Jr., Federal Practice and Procedure: Evidence §5037 (1977); Rosengart, The Motion In Limine: The Hidden Arrow in the Federal Litigator's Quiver, The Federal lawyer (June, 2001).
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Final Pretrial Conference prepared to address and argue the merits of all pending motions in limine. Redundant objections to a motion in limine shall not be made during trial.3 IT IS FURTHER ORDERED that the attorneys for each party who will be responsible for trial of this lawsuit shall appear and participate in a Final Pretrial Conference on Wednesday, April 19, 2006 at 2:00 p.m. in Courtroom 302 on the third floor of the Sandra Day O'Connor U.S. Courthouse, 401 E. Washington, Phoenix, Arizona, 85003-2120. IT IS FURTHER ORDERED directing the parties to complete the following tasks by the time of the lodging of the Proposed Joint Final Pretrial Order since they intend to try the case before a jury and the required matter shall be contained within the Proposed Joint Final Pretrial Order itself unless expressly excluded therefrom: (1) The parties shall jointly file a description of the case to be read to the jury. (2) The parties shall jointly file a proposed set of voir dire questions that each counsel intends to ask the jury. The voir dire questions shall be drafted in a neutral manner. To the extent possible, the parties shall stipulate to the proposed voir dire questions. If the parties have any disagreement about a particular question, the party or parties objecting shall state the reason for their objection below the particular objectionable question. (3) By separate pleadings, the parties shall file a proposed set of stipulated jury instructions. The instructions shall be accompanied by citations to legal authority. If a party believes that a proposed instruction is a correct statement of the law, but the facts will not warrant the giving of the instructions, the party shall so state. The party who believes that the facts will not warrant the particular instruction shall provide an alternative instruction with appropriate citations to legal authority.

Like Arizona, the Ninth Circuit has held that a properly made motion in limine will preserve the appellant's objection on appeal without the need for further objection at trial if it contains specific grounds for the objection. Palmerin v. City of Riverside, 794 F.2d 1409, 1413 (9th Cir. 1986); Stroud v. Dorr-Oliver, 112 Ariz. 574, 544 P.2d 1089 (1976). Also see, Rule 103(a), Fed. Rules of Evid.

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(4) By separate pleadings, each party shall, either separately or jointly, submit proposed forms of verdicts to be given to the jury at the end of the trial. (5) Whether any Daubert hearings are necessary and, if so, on what issues, the anticipated time such a hearing will take, and the most appropriate time to schedule and conduct such an evidentiary hearing. See, Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993); Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999). (6) The parties shall also set forth in the Proposed Joint Final Pretrial Order consecutive suggested trial dates agreeable to all counsel for the estimated length of the trial with a 10:00 a.m. to 4:30 p.m. daily trial schedule Monday through Friday. These dates shall exclude the following weeks: May 22, June 19, July 17, August 14 and September 11, 2006. IT IS FURTHER ORDERED that the parties shall keep the Court apprised of the possibility of settlement and should settlement be reached, the parties shall immediately file a Notice of Settlement with the Clerk of the Court with a copy to this Court's chambers. IT IS FURTHER ORDERED that this Court views compliance with the provisions of this Order as critical to its case management responsibilities and the responsibilities of the parties under Rule 1 of the Federal Rules of Civil Procedure.

DATED this 8th day of March, 2006.

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA (Names of Plaintiff(s) , ) ) ) ) ) ) ) ) ) ) ) No. CIV PHX-LOA

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Plaintiff(s),
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PROPOSED JOINT FINAL PRETRIAL ORDER

vs.
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(Names of Defendant(s) , Defendant(s).

BACKGROUND Pursuant to the Scheduling Order/Order Setting Final Pretrial Conference entered on , 2006, the following is the Proposed Joint Final Pretrial Order to be considered at the Final Pretrial Conference set for , 2006.

A. COUNSEL FOR THE PARTIES (Include mailing address, office phone and fax numbers). Plaintiff(s): Defendant(s):

B. STATEMENT OF JURISDICTION. Cite the statute(s) which give this Court jurisdiction. (e.g., Jurisdiction in this case is based on diversity of citizenship under Title 28 U.S.C. §1332.) -5Document 149 Filed 03/08/2006 Page 5 of 11

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Jurisdiction (is/is not) disputed. (If jurisdiction is disputed, the party contesting jurisdiction shall set forth with specificity the bass for the objection.) C. NATURE OF ACTION. Provide a concise statement of the type of case, the cause of the action, and the relief sought. (e.g., - This is a products liability case wherein the plaintiff seeks damages for personal injuries sustained when he fell from the driver's seat of a forklift. The plaintiff contends that the forklift was defectively designed and manufactured by the defendant and that the defects were a producing cause of his injuries and damages.) D. CONTENTIONS OF THE PARTIES. With respect to each count of the complaint, counterclaim or cross-claim, and to any defense, affirmative defense, or the rebuttal of a presumption where the burden of proof has shifted, the party having the burden of proof shall list the elements or standards that must be proved in order for the party to prevail on that claim or defense. Citation to relevant legal authority is required. (e.g., In order to prevail on this products liability case, the plaintiff must prove the following elements . . . . . e.g., In order to defeat this products liability claim based on the status of repose, the defendant must prove the following elements. . . .) E. STIPULATIONS AND UNCONTESTED FACTS 1. The following facts are admitted by the parties and require no proof: 2. The following facts, although not admitted, will not be contested at trial by evidence to the contrary: ... F. CONTESTED ISSUES OF FACT AND LAW 1. The following are the issues of fact to be tried and decided: (Each issue of fact must be stated separately and in -6-

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specific terms. Each parties' contention as to each issue must be set forth with respect to each and every issue of fact). E.g., Issue #1: Whether Plaintiff used due care. Plaintiff Contends: Plaintiff looked both ways before stepping into the street. . . Defendant Contends: Plaintiff was chasing a ball and darted out into the street without looking. . . . 2. The following are the issues of law to be tried and determined: (Each issue of law must be stated separately and in specific terms. Each parties' contention as to each issue must be set forth with respect to each and every issue of law). E.g., Issue #1: Whether Plaintiff's suit is barred by the doctrine of laches. Plaintiff Contends: . . . . . Defendant Contends: . . . . . G. LIST OF WITNESSES. A jointly prepared list of witnesses and their respective addresses, identifying each as either plaintiff's or defendant's, and indicating whether a fact or expert witness, must accompany this proposed order. If a witness' address is unknown, it should be so stated. A brief statement as to the testimony of each witness must also be included. Additionally, the parties shall designate which witnesses (1) shall be called at trial, (2) may be called at trial, and (3) are unlikely to be called at trial. Additionally, the parties shall include the following text in this portion of the Proposed Pretrial Order. ... The parties understand that the Court has put them on notice that they are responsible for ensuring that the witnesses they want to put on the stand to testify are subpoenaed to testify, regardless of whether the intended witness is listed as a witness for the plaintiff(s) or the defendant(s). Simply because a party lists a -7Document 149 Filed 03/08/2006 Page 7 of 11

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a witness does not mean that the witness will be called. Therefore, a party should not rely on the listing of a witness by the opposing party as an indication that the witness will be called. To the extent possible, the parties shall stipulate to the witnesses that will be called to testify. H. LIST OF EXHIBITS. A. The following exhibits are admissible in evidence and may be marked in evidence by the Clerk: 1. Plaintiff's Exhibits: 2. Defendant's Exhibits: B. As to the following exhibits, the parties have reached the following stipulations: 1. Plaintiff's Exhibits: 2. Defendant's Exhibits: C. As to the following exhibits, the party against whom the exhibit is to be offered objects to the admission of the exhibit and offers the objection stated beneath: 1. Plaintiff's Exhibits: E.g., City Hospital records of Plaintiff from March 6, 1985, through March 22, 1985. Defendant objects for lack of foundation because. . . . (The objection must specify why there is a lack of foundation). 2. Defendant's Exhibits: E.g., Payroll records of Plaintiff's employer which evidences payment of Plaintiff's salary during hospitalization and recovery. Plaintiff objects on the ground of relevance and materiality because (the objection must specify why there is relevancy or materiality problem). I. DEPOSITIONS TO BE OFFERED. The parties shall list the depositions to be used at trial if any witness will be unavailable for trial. It is necessary to identify the portions of depositions that will be read at trial by page and line number. Counsel should note -8Document 149 Filed 03/08/2006 Page 8 of 11

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objections to deposition testimony by setting forth all objections thereto to the specific question(s) and/or answer(s). Moreover, these objections shall be explained in this portion of the Proposed Pretrial Order. As is the Court's practice at trial, it is not sufficient for an objecting party to simply state perfunctory grounds for an objection (e.g., "hearsay" or "lack of foundation") contained in the Proposed Pretrial Order. Each party must explain the basis for each perfunctory objection (e.g., why it lacks foundation, why it is irrelevant). J. MOTIONS IN LIMINE. Motions in limine shall be served, filed and responded to in accordance with the instructions contained in the Rule 16 Scheduling Order.

K. LIST OF ANY PENDING MOTIONS

L. PROBABLE LENGTH OF TRIAL

M. JURY DEMAND - a jury trial (has) (has not) been requested. If a jury trial was Requested, (indicate the appropriate selection): 1. the parties stipulate the request was timely and properly made; 2. the (Plaintiff or Defendant) contends the request was untimely made because: (explain why request was untimely); or 3. the (Plaintiff or Defendant) contends that although the request for trial by a jury was timely, the request is improper as a matter of law because: (indicate the legal basis why a jury trial would be improper). ... ... ... For a Bench Trial

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N-1. PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW shall be filed and served by each party in accordance with the instructions contained in the Rule 16 Scheduling Order.

For a Jury Trial

N-2. (Jury Trial) STIPULATED JURY INSTRUCTIONS, PROPOSED VOIR DIRE QUESTIONS AND PROPOSED FORMS OF VERDICT shall be filed in accordance with the instructions contained in the Rule 16 Scheduling Order.

O. CERTIFICATIONS. The undersigned counsel for each of the parties in this action do hereby certify and acknowledge the following: 1. All discovery has been completed. 2. The identity of each witness has been disclosed to opposing counsel. 3. Each exhibit listed herein (a) is in existence; (b) is numbered; and (c) has been disclosed and shown to opposing counsel. 4. The parties have complied in all respects with the mandates of the Court's Rule 16 Order. 5. [Unless otherwise previously ordered to the contrary], the parties have made all of the disclosures required by the Federal Rules of Civil Procedure. ... ... APPROVED AS TO FORM AND CONTENT:

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Attorney for Plaintiff(s)

Attorney for Defendant(s)

P. ORDER IT IS ORDERED that this Proposed Joint Final Pretrial Order jointly submitted by the parties is hereby APPROVED and is thereby ADOPTED as the official Final Pretrial Order of this Court. DATED this day of 2006.

Lawrence O. Anderson United States Magistrate Judge

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