Opinion
Case Number: 00-10117-BC
November 8, 2001
The defendants filed a motion to either dismiss the case based on the plaintiff's violation of discovery orders and deadlines, or in the alternative for summary judgment. The Court referred the matter to Magistrate Judge Charles E. Binder pursuant to 28 U.S.C. § 636(b)(1)(B), and a Report and Recommendation was filed on June 11, 2001. Magistrate Judge Binder recommended that the motion to dismiss and summary judgment be denied, but that plaintiff be precluded from introducing expert testimony. The plaintiff did not file timely objections to the Magistrate Judge's Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1)(C); thus, further appeal rights are waived. The failure to object to the Magistrate Judge's report releases the Court from its duty to independently review the motion with respect to the sanctions ordered against the plaintiff. Thomas v. Arn, 474 U.S. 140, 149 (1985). The defendants have filed timely objections in which they argue that (1) dismissal is an appropriate discovery sanction in this case; and (2) the plaintiff will be unable to prove his case without expert testimony and summary judgment of dismissal is required. The Court agrees with the Magistrate Judge as to the discovery sanction imposed, and therefore will adopt the Report and Recommendation in part. The Court also finds that the plaintiff will not be able to prove a case with respect to a design or manufacturing defect without expert testimony; however, the plaintiff's breach of warranty claim survives summary judgment and will proceed to trial. The Court will therefore reject in part and accept in part this aspect of the Report and Recommendation.
I.
This is a product liability action in which the plaintiff claims that he sustained injuries on or about March 1, 1997, while using an aluminum extension ladder for which defendants are allegedly responsible. The plaintiff filed this action on February 28, 2000, asserting claims of negligence and breach of implied and express warranties. Specifically, plaintiff alleged that the ladder was defective in that "the ladder hooks buckled and failed during normal use, causing the ladder to drop whereby Mr. Sundberg lost his balance and fell to the ground." Pl.'s Compl. ¶ 10. In his Pre-Trial Statement, filed with the Court on or about June 20, 2000, plaintiff identified his theory of liability as follows: "It is Plaintiff's contention that the subject extension ladder was defectively designed such that the locking mechanism that held the ladder together could come loose during normal, routine and foreseeable uses." Def. S.J. Ex. B at 2.
On July 24, 2000, plaintiff served upon defendants his Answers to Defendants' First Set of Interrogatories. In response to defendants' Interrogatory Number Nine seeking the name, address, and opinions, conclusions and basis thereof of any expert whom plaintiff intended to call at trial, the following answer was provided: "Expert witnesses that will be called at the time of trial will be identified in accordance with the dates set forth by the court." Def. Mot. S.J. Ex. C ¶ 9. On or about October 30, 2000, plaintiff filed his witness list identifying Harold Josephs, P.E., and Paul Trojan, P.E., as liability experts.
On November 30, 2000, defendants filed a Motion to Dismiss pursuant to Fed.R.Civ.P. 37. In the alternative, the motion sought various items of relief, including an order compelling discovery depositions of plaintiff's experts by a date certain and compelling supplemental answers to interrogatories regarding the opinions and conclusions of plaintiff's experts 14 days prior to their discovery depositions. Shortly after the filing of this motion, the parties conferred and submitted to the Court a proposed Stipulated Order Compelling Discovery and Amending Scheduling Order. In response, this Court, on February 14, 2001, entered an Amended Case Management Scheduling Order requiring, in pertinent part:
B. Disclosure of information regarding expert witnesses required by Fed.R.Civ.P. 26(a)(2) shall be completed by [both parties] on or before February 15, 2001.
C. Discovery shall be completed on or before April 30, 2001. . . .
. . .
E. Plaintiff will supplement his answers to [interrogatories] to provide the opinions and conclusions of his liability experts . . . at least 14 days prior to their respective discovery depositions.
F. Plaintiff will produce his liability experts, Harold Josephs and Paul Trojan, for discovery-only depositions, no later than March 15, 2001.
Am. Case Mgmt. Scheduling Order at 2.
On March 1, 2001, the parties' counsel agreed to an extension of certain discovery deadlines. Plaintiff's counsel agreed to produce his liability experts for discovery-only depositions no later than April 13, 2001, provide proposed dates and locations for said depositions by March 15, 2001, and provide Rule 26(a)(2) expert disclosure reports at least prior to those discovery-only expert depositions. On March 30, 2001, having not yet been offered any potential dates for the depositions of plaintiff's liability experts and having received no Rule 26(a)(2) reports, defense counsel contacted plaintiff's counsel to inquire about the status of these discovery issues. At that time, plaintiff's counsel indicated that he would not be using Mr. Trojan as an expert in this matter and, with respect to Mr. Josephs, he requested a seven-day extension of the aforementioned deadlines. Defendants agreed to this request, thereby obligating plaintiff to provide Rule 26(a)(2) reports and proposed deposition dates no later than April 6, 2001, and to produce Mr. Josephs for discovery-only deposition no later than April 20, 2001. None of these agreements were presented to or approved by the Court.
Having received no reports or proposed deposition dates by April 6, 2001, defense counsel telephoned plaintiff's counsel on April 6, 2001 and again on April 10, 2001, leaving messages requesting the status of same, but the messages were not returned. A letter sent by facsimile on April 10, 2001 also was not answered. Defendants also allege, and plaintiff claims himself unable to confirm, that defense counsel made another phone call on April 16, 2001, which also was not returned. Defendants' motion also states that it was unable to contact plaintiff's counsel to request concurrence in the motion; the plaintiff denies this assertion.
On April 19, 2001, the defendants filed their Motion for Summary Judgment and/or Motion to Dismiss, which requested that the Court dismiss the plaintiff's case as a sanction for his dilatory discovery practices, or, in the alternative, preclude any of plaintiff's experts from testifying at trial. The defendants also expressed their opinion that even if the Court decided only to preclude the plaintiff's experts from testifying, the absence of expert testimony would doom plaintiff's products liability action as a matter of law, thus justifying dismissal in toto.
On May 14, 2001, this Court referred the defendants' motion to Magistrate Judge Binder. On June 7, 2001, Magistrate Judge Binder issued his Report and Recommendation, as noted above. Magistrate Judge Binder found that the plaintiff's delay in conforming to the Court's pretrial order and Fed.R.Civ.P. 26(a) was inexcusable and merited sanctions. Magistrate Judge Binder held that there was not sufficient evidence of willful or flagrant disregard of the Court's orders to justify outright dismissal. Finally, Magistrate Judge Binder found that Michigan law was not sufficiently decisive on the issue of whether expert testimony was absolutely required for a products liability claim to justify dismissal of the plaintiff's case at this stage of the proceedings.
I.
This Court reviews the magistrate judge's report and recommendation de novo, conducting an independent analysis of the factual record. Roland v. Johnson, 856 F.2d 764, 769 (6th Cir. 1988). The Court has the discretion to refuse consideration of objections raising new issues that could have been raised before the magistrate, but were not. Crooker v. Van Higgins, 682 F. Supp. 1274, 1281 (D.Mass. 1988).
A.
The defendants argue that plaintiff's conduct in refusing expert discovery was sufficiently "willful" to justify dismissal. They note that while plaintiff did substitute attorneys during this time period, that exchange occurred after several deadlines had already been missed. Both attorneys were also from the same firm. The defendants argue that the plaintiff has yet to offer any justification for the missed deadlines and repeated failures to respond to inquires from defense counsel.
The Sixth Circuit has described the level of misconduct necessary to receive a dismissal sanction as "willful" or "contumacious," See In re Salem Mortgage Co., 791 F.2d 456, 460 (6th Cir. 1986). In practice, the Sixth Circuit considers four factors in determining an appropriate sanction for discovery violations: (1) whether the party's failure is due to willfulness, bad faith, or fault; (2) whether the adversary was prejudiced by the dismissed party's conduct; (3) whether the dismissed party was warned that failure to cooperate could lead to dismissal; and (4) whether less drastic sanctions were imposed or considered before dismissal of the action. Mulbah v. Detroit Bd. of Educ., 261 F.3d 586, 589 (6th Cir. 2001). Furthermore, when the misconduct at issue is committed by an attorney rather than the party himself, the Sixth Circuit applies the four-factor test very strictly: "an innocent plaintiff should not be penalized for the conduct of an inept attorney." Freeland v. Amigo, 103 F.3d 1271, 1278 (6th Cir. 1997).
In Mulbah, the Court reversed a district court order dismissing the plaintiff's case for delays in the discovery process. The district court cited the following behavior as justifying its order of dismissal: (1) service of the original complaint was never made on defendants, and that the amended complaint finally served was a duplicate of the original; (2) the plaintiff waited fifty-nine days to file its response to defendants' motion for partial dismissal, forcing the Court to reschedule the hearing; (3) plaintiff took interest in prosecuting his discovery only after the pretrial cutoff date had passed, and then only after defendants filed their motion to dismiss for failure to prosecute; and (4) plaintiff's response brief to defendants' motion was wholly unsatisfactory, plaintiff was unprepared for oral argument. and plaintiff had brought the wrong file to court for oral argument. Mulbah, 261 F.3d at 589-90.
The Sixth Circuit found that while "Plaintiff and his counsel could have proceeded in a more timely and professional fashion, the facts of this case fail to justify dismissal of Plaintiff's action with prejudice." Id. Only three months had elapsed since the district court had dismissed various parties and counts from the case. Id. at 591. Furthermore, neither the plaintiff nor his counsel ever missed a court appearance or other scheduled event. Id. at 592. For sanction purposes, there is a material difference between repeated failures to appear and "mere dilatory conduct involving failure to file a specified document." Id. The Court found the record completely devoid of any evidence of prejudice to the defendant. Id. The district court had also failed to consider any lesser sanction that would have preserved the integrity of the pretrial process while not depriving the plaintiff of his day in court. Id. at 593-94. Finally, the court's orders had contained only "boilerplate warnings about the consequences of failure to respond to motions in a timely fashion." Id. at 593. These warnings were insufficient to impose dismissal without first employing a lesser sanction to given the plaintiff notice that dismissal was truly imminent. Id.
In this case, the Court finds that the Magistrate Judge recommended an appropriate sanction against the plaintiff, and therefore the defendants' objection to this portion of the Report and Recommendation shall be overruled.
B.
The defendants also claim that summary judgment is required because without expert testimony, plaintiff's products liability claim must fail.
A motion for summary judgment under Fed.R.Civ.P. 56 presumes the absence of a genuine issue of material fact for trial. A party opposing a motion for summary judgment must show by affidavits, depositions or other factual material that there is "evidence on which the jury could reasonably find for the [non-moving party]." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). In other words, the Court must view the evidence and draw all reasonable inferences in favor of the non-moving party, and determine "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Id. "The test is whether the party bearing the burden of proof has presented a jury question as to each element of the case." Davis v. McCourt, 226 F.3d 506, 511 (6th Cir. 2000). Summary judgment is not a vehicle for a trial by affidavits; the court looks only to determine whether there is a genuine issue for trial. DBM Technologies, Inc. v. Local 227, 257 F.3d 651, 655-56 (6th Cir. 2001).
A party may support a motion for summary judgment by demonstrating that an opposite party, after sufficient opportunity for discovery, is unable to meet her burden of proof. Celotex Corp. v. Catratt, 477 U.S. 317, 323 (1986). The non-moving party may not merely rely upon the pleadings to oppose a motion for summary judgment but must come forward with affirmative evidence in the form of materials described in Rule 56(c) to establish a genuine issue on a material fact. Id. at 324. Even in complex cases, "where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is `no genuine issue for trial.'" Matsushita Electrical Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 552 (1986).
In Michigan, a products liability action is defined by statute as "an action based on a legal or equitable theory of liability brought for the death of a person or liability for injury to a person or damage to property caused by or resulting from the production of a product." Mich. Comp. Laws § 600.2945(h) (West Supp. 2001). By "product," the statute refers to any and all of its component parts. Mich. Comp. Laws § 600.2945(g) (West Supp. 2001). "Production" of a product includes its "manufacture, construction, design, formulation, development of standards, preparation, processing, assembly. inspection, testing, listing, certifying, warning, instructing, marketing, selling, advertising, packaging, or labeling." Mich. Comp. Laws § 600.2945(h) (West Supp. 2001).
Traditional principles of products liability law recognize three types of defects: manufacturing defects, defects due to faulty design, and defects due to inadequate instructions or warnings. Restatement (Third) of Torts: Products Liability § 2 (1998). To provide compensation for injuries caused by such defects, Michigan recognizes two distinct causes of action for product failures: negligence and implied warranty. Gregory v. Cincinnati, Inc. 450 Mich. 1, 12, 538 N.W.2d 325, 329 (1995); Hollister v. Dayton Hudson Corp., 201 F.3d 731, 736-37 (6th Cir. 2000).
As a general rule, the negligence action focuses on the conduct of the manufacturer, whereas implied warranty focuses on the condition of the product. Prentis v. Yale Mfg. Co., 421 Mich. 670, 692, 365 N.W.2d 176, 186 (1984). These theories are not always mutually exclusive. When used to attack design and warning defects, the two theories may effectively require the same elements and proofs. Bouverette v. Westinghouse Elec. Corp., 245 Mich. App. 391. 395, 628 N.W.2d 86, 90 (2001). As a result, in design defect cases against a manufacturer, only a negligence cause of action is cognizable. Prentis, 421 Mich. at 693, 365 N.W.2d at 186. Nonetheless, the two causes of action remain separate theories with distinct elements. Lagalo v. Allied Corp., 457 Mich. 278, 287 n. 11, 577 N.W.2d 462, 466 n. 11 (1998).
The negligence cause of action recognizes that manufacturers have a duty to use reasonable care to design and produce a product that is reasonably safe for its intended, anticipated, or reasonably foreseeable use. Prentis, 421 Mich. at 694, 365 N.W.2d at 187. To demonstrate a design defect, Michigan law imposes a heavy burden upon plaintiffs, who must prove the following:
(1) that the severity of the injury was foreseeable by the manufacturer; (2) that the likelihood of occurrence of her injury was foreseeable by the manufacturer at the time of distribution of the product; (3) that there was a reasonable alternative design available; (4) that the available alternative design was practicable; (5) that the available and practicable reasonable alternative design would have reduced the foreseeable risk of harm posed by defendant's product; and (6) that omission of the available and practicable reasonable alternative design rendered defendant's product not reasonably safe.Hollister, 201 F.3d 731 at 738. Thus, to succeed in a negligence cause of action, the products liability plaintiff must prove actual fault. Prentis, 421 Mich. at 688-90, 365 N.W.2d at 184-85. Although Michigan does not have a per se rule requiring expert testimony on a product's risk-utility, its supreme court has suggested that it will typically be required. See Owens v. Allis-Chambers Corp., 414 Mich. 413, 430, 326 N.W.2d 372, 379 (1982).
The requirements for an implied warranty cause of action, however, are less stringent. When alleging an implied warranty cause of action, the plaintiff need only show that (1) the product in question was defective when the defendant sold or otherwise placed it in the stream of commerce, and (2) that the defect caused her injury. Hollister v. Dayton Hudson Corp., 201 F.3d 731, 737 (6th Cir. 2000). A product is defective if it is not reasonably fit for its intended, anticipated, or reasonably foreseeable use. Gregory v. Cincinnati, Inc., 450 Mich. 1, 34, 538 N.W.2d 325, 339 (1995). Implied warranty imposes strict liability on the manufacturer and vendors of a product. Cook v. Darling, 160 Mich. 475, 481, 125 N.W. 411, 413 (1910); Dooms v. Stewart Bolling Co., 68 Mich. App. 5, 14-15, 241 N.W.2d 738, 743 (1976). The amount of care used by the manufacturer in designing and producing the product is irrelevant. Gregory, 450 Mich. at 12, 538 N.W.2d at 329.
Implied warranty claims do not require the plaintiff to specify the type of defect alleged: the mere showing that something went wrong consistent with the existence of a defect is sufficient. See Caldwell v. Fox, 394 Mich. 401, 410, 231 N.W.2d 46, 51 (1975); Severn v. Sperry Corp., 212 Mich. App. 406, 413, 538 N.W.2d 50, 54 (1995); Snider v. Bob Thibodeau Ford, Inc., 42 Mich. App. 708, 713, 202 N.W.2d 727, 730 (1972). As a result, the plaintiff need only demonstrate a logical sequence of cause and effect between the alleged defect and the injury. Mulholland v. DEC Int'l Corp., 432 Mich. 395, 415, 443 N.W.2d 340, 349 (1989). For example, in Caldwell, the plaintiff filed suit against a defendant who rear-ended the plaintiff's car, and the defendant, in turn, filed a third-party complaint against General Motors and the dealer who sold him his car. The trial court dismissed the third-party defendants before the case went to the jury, finding there to be "no proof" of a manufacturing defect. 394 Mich. at 406, 231 N.W.2d at 49. Reversing, the Michigan Supreme Court found that the trial court had improperly invaded the province of the jury as fact finder, and that the jury reasonably could have inferred the existence of a defect from the facts stated, and that the defect existed at the time the product left the manufacturer's control. Id. at 410, 231 N.W.2d at 51. An actual defect need not be proven. Id. See also Snider, 42 Mich. App. at 713, 202 N.W.2d at 730 (holding that there was no need to specify the defect in the braking mechanism where there was not more than one plausible theory for the accident).
Because the defect can remain unspecified, the risk-utility test is inapplicable, and expert testimony is often not required. In fact, circumstantial evidence alone can provide a sufficient link between the presence of a likely defect and an injury caused. Severn, 212 Mich. App. at 413, 538 N.W.2d at 54; Caldwell, 394 Mich. at 410, 231 N.W.2d at 51; Snider, 42 Mich. App. at 713, 202 N.W.2d at 730; Piper v. Tensor Corp., 71 Mich. App. 658, 666, 248 N.W.2d 659, 663 (1976) (holding that issues of negligent design and breach of warranty were properly left to the jury where lamp at issue caught fire shortly after being repaired by the defendants, and that expert testimony was not required).
This point was illustrated recently by the Michigan Court of Appeals in the case of Bouverette v. Westinghouse Elec. Corp., 245 Mich. App. 391, 628 N.W.2d 86 (2001). The plaintiff in that case sued when her decedent was electrocuted by a circuit breaker manufactured by one of the defendants. The defendants appealed the jury verdict, claiming that the verdict for the manufacturer on negligence grounds but for the plaintiff on implied warranty grounds was necessarily inconsistent, and that violation of an implied warranty could not occur without negligence. Id. at 398, 628 N.W.2d at 92. The Court rejected this view. First, the Court found that the jury following the trial court's instructions plausibly could have limited its negligence analysis to manufacturing and design claims, while treating failure to warn as a separate, implied warranty issue. Id. at 398-99, 628 N.W.2d at 92. Second, and more importantly, the Court found that a product could be "defective" without having a traditional "defect" in the product liability sense:
Moreover, the jury could have found that the breaker itself technically was not defective, but that it was not reasonably fit for the uses intended or foreseeable, i.e., the safety features failed when connected to a linkage handle, which was an intended or foreseeable use.Id. at 399, 628 N.W.2d at 92.
In this case, the absence of expert testimony as a result of the preclusion sanction makes the design defect claims pleaded in counts I and II of the complaint impossible to prove. The plaintiff all but concedes the point in his response to defendants' summary judgment motion. Two courts which have examined this issue applying Michigan law have both concluded that expert testimony is required to state a prima facie case under a risk-utility analysis. See Owens, 414 Mich. at 430, 326 N.W.2d at 379 ("The nature of a forklift operator's work is not a function concerning which the Court is able to take judicial notice."); Moisenko v. Volkswagenwerk Aktiengesellschaft, 100 F. Supp.2d 489, 492-93 (W.D.Mich. 2000).
Count III alleges breach of implied warranty of fitness for the ladder's ordinary purpose. Count IV alleges breach of various unspecified express warranties. A products liability action for express warranty is available to the same extent that implied warranty is. See Scott v. Illinois Tool Works, Inc., 217 Mich. App. 35, 42-43, 550 N.W.2d 809, 813-14 (1996).
The Court concludes that expert testimony is not necessarily required to prove an action for implied or express warranty. The defendants' reliance on the Moisenko decision from the Western District of Michigan for the opposite conclusion is misplaced. There, the Court declared that "[a]s to the manufacturing defect claim, it is well-settled that such a claim cannot be proven without expert testimony." 100 F. Supp.2d at 493. Moisenko thus was not dealing with warranty causes of action; it focused exclusively on a plaintiff who purported to identify specific defects and their maimer of origin. As noted above, a warranty cause of action does not require this level of specificity.
In their motion, the defendants never challenge the fact of the plaintiff's fall, nor do they allege that a ladder that collapses under the weight of a normal person would not breach a warranty. The plaintiff properly pleaded both of these allegations, and together they are sufficient to state a claim under Michigan law. The defendants' assertions that plaintiff's claims should be dismissed because he (1) failed to mention the warranty claims in his pretrial statement and (2) that he failed to produce any affidavits supporting the pleadings in response to defendants' motion are meritless. The pretrial statement is designed to help schedule discovery and establish a calendar. It does not constitute a waiver of other claims that the plaintiff otherwise states in his complaint. The plaintiff also was not under any obligation to provide affidavits in support of the facts surrounding the events in question since that issue was not challenged by the defendants in their motion. This argument is raised for the first time in defendants' objections, and was not in defendants' original brief supporting their motion. The Court has the discretion to hear objections on new issues, but is under no obligation to do so. Crooker v. Van Higgins, 682 F. Supp. 1274, 1281 (D.Mass. 1988). Raising issues for the first time in objections that could have been brought to the attention of the Magistrate Judge undermines the entire purpose of referring motions to the Magistrate Judge. This Court declines to entertain defendants' new argument on summary judgment in this case. Because no recognized challenge has been made to the sufficiency of plaintiff's allegations surrounding the mechanics of his injury, plaintiff is under no obligation to provide further proof at this stage. Hunter, 220 F.3d at 725-26.
The Court finds that the Magistrate Judge correctly held that the plaintiffs warranty claims can be proven absent expert testimony, and that they survive summary judgment. Therefore, the Report and Recommendation, to the extent that it recommends defendant's motion for summary judgment be denied as to plaintiff's warranty claims, will be adopted.
III.
Accordingly, it is ORDERED that the Report and Recommendation is ADOPTED in part and REJECTED in part.
It is further ORDERED that the plaintiff shall be precluded from presenting expert testimony at trial.
It is further ORDERED that the defendants' Motion for Summary Judgment [dkt #27] is GRANTED IN PART AND DENIED IN PART.
It is further ORDERED that Counts I and II of the complaint are dismissed with prejudice.
It is further ORDERED that the parties shall appear at a final pretrial conference on December 12, 2001 at 2:30 PM, and that the parties shall file a pretrial order on December 5, 2001. Following is the procedure counsel are to utilize to prepare for the final pretrial conference and the final pretrial order under the following procedure:
A. Counsel for all parties are directed to confer in person (face to face) at their earliest convenience in order to (1) reach any possible stipulations narrowing the issues of law and fact, (2) deal with non-stipulated issues in the maimer stated in this paragraph, and (3) exchange documents that will be offered in evidence at the trial. It shall be the duty of counsel for plaintiff to initiate that meeting and the duty of other counsel to respond to plaintiff's counsel and to offer their full cooperation and assistance. If, after reasonable effort, any party cannot obtain the cooperation of other counsel, it shall be his or her duty to communicate with the Court. Counsels' meeting shall be had sufficiently in advance of the date of the scheduled final pretrial conference with the Court so that counsel for each party can furnish all other counsel with a statement of the real issues the party will offer evidence to support, eliminating any issues that might appear in the pleadings about which there is no real controversy and including in such statement issues of law as well as ultimate issues of fact from the standpoint of each party. Counsel for plaint if then will prepare a draft final pretrial order and submit it to opposing counsel, after which all counsel will jointly submit the original and one copy of the final draft of the proposed pretrial order to the Judge's chambers (or in open court, if so directed) on the date fixed for submission. All instructions contained within this order must be followed carefully; they will be binding on the parties at trial. If there are any pending motions requiring determination in advance of trial, they should specifically be called to the Court's attention not later than the date of submission of the final pretrial order.
The final pretrial order should provide for the signature of the Court, which, when signed, will become an Order of the Court. AN ORIGINAL AND ONE COPY IS TO BE FILED WITH THE COURT.
The proposed pretrial order shall strictly comply with the provisions and requirements of L.R. 16.2, except as this Court may otherwise provide.
B. The following person and entities shall personally attend the final pretrial conference:
Counsel for plaintiff has primary responsibility for preparation of the final pretrial order and, in that respect, for its submission to opposing counsel in ample time for revision and timely filing. Nonetheless, full cooperation and assistance of all other counsel are required for proper preparation of the final pretrial order and must therefore be extended.
This includes motions in limine, disputes over specific jury instructions or the admissibility of any evidence at trial upon which the parties desire to present authorities and argument to the Court.
1) Trial counsel for each party;
2) All parties who are natural persons;
3) A representative on behalf of any other party;
4) A representative of any insurance carrier which has undertaken the prosecution or defense of the case and has contractually reserved to itself the ability to settle the action.
Representatives must possess full authority to engage in settlement discussions and to agree upon a full and final settlement. "Full authority" is authority that exceeds the level of the last demand by the plaintiff.
"Personal attendance" by each party is not satisfied by (1) trial counsel professing to have full authority on behalf of the client or (2) a party being available by telephone.
Any party who disregards these requirements may be sanctioned pursuant to Fed.R.Civ.P. 16(f). Possible sanctions include fines, cost, fees, foreclosure of witnesses, or loss of claims or defenses.
It is FURTHER ORDERED that the provisions of the Case Management and Scheduling Order entered on February 14, 2001 not inconsistent herewith shall remain in full force and effect.
It is FURTHER ORDERED that by stipulation of the parties [dkt #58], plaintiff's motion to compel discovery [dkt #18], defendants' motion to dismiss [dkt #19], and defendants' motion to extend time [dkt #20] are DENIED.