STEPHAN M. VIDMAR, Magistrate Judge.
This matter is before the Court pursuant to Fed.R.Civ.P. 16. The parties conferred and submit the following Pretrial Order.
Attorneys who will try the action:
Plaintiff's UIM claim includes her medical expenses related to the crash on May 20, 2007. Her current medical expenses are $14,864.61. She is also claiming future medical expenses. Plaintiff's claim includes past and future pain and suffering and the nature, extent, and duration of Plaintiff's injury.
Plaintiff also made claims of bad faith and related claims including breach of contract, unfair insurance practices and unfair trade practices. The bad faith and related claims have been bifurcated and will not be raised during the current trial setting.
Plaintiff, who was 43 years of age in 2006, complained to her chiropractor, Dr. Williams, in 2006 that she had severe neck and back pain, and she was treated twice in 2006 for her severe back pain, which had been ongoing for over a year. She also complained to Dr. Williams in 2006 of pain in her upper right thigh, and she was diagnosed with myofascitis. Dr. Radecki, Defendant's expert, will testify, based upon review of her medical records, that, other than her May-June 2007 chiropractic care, Plaintiff's claimed medical damages were not a result of the accident. Dr. Radecki, has opined that Plaintiff's functional daily activity level after the accident was no different from her functional level prior to the accident. He testified that she had pre-existing degenerative disc disease in her neck and lower back. Her degenerative disc disease was exacerbated by the accident and was resolved by July 2007.
Safeco, after offsetting the $10,000 in MedPay and the $25,000 received from the tortfeasor, made Plaintiff a reasonable settlement offer, which Plaintiff rejected. Thereafter, in October 2010 and in March 2011, Plaintiff's counsel advised that Plaintiff was still treating for her injuries.
Safeco submits that it has made a more than reasonable settlement offer to Plaintiff and that it was still willing to negotiate a settlement with Plaintiff when Plaintiff filed this lawsuit in State Court.
Safeco denies Plaintiffs' allegations that Safeco acted wrongfully in any manner and affirmatively states that it acted reasonably, in good faith, and with equal consideration to the rights of its insured.
1. Safeco issued Policy No. Y4786442 ("Policy") to Vivian Frietze, which was in effect on May 20, 2007.
2. Plaintiff was involved in a motor vehicle accident on or about May 20, 2007.
3. On or about June 24, 2010, Plaintiff received $25,000, the tortfeasor's policy limits, in settlement of her claims against the tortfeasor.
4. Safeco paid Plaintiff $10,000 under the Medical Payment section of Plaintiff's policy.
5. Safeco is entitled to a $35,000 offset of any damage award made by the jury.
6. Plaintiff's medical bills provided to Defendant through discovery are authentic and will not be refused based on a hearsay objection. Plaintiff will be required to lay other foundation such as to the necessity of the medical treatment as it relates to the accident.
A. Plaintiff suffered injuries to her neck and her back as a result of the crash on May 20, 2007.
B. Based on Plaintiff's injuries as a result of the crash, she qualifies for payment under her UIM coverage with Defendant.
C. The medical treatment Plaintiff received for her neck and her back was all necessary medical treatment for the injuries Plaintiff suffered in the crash.
D. The medical treatment Plaintiff received for her neck and her back was all reasonable medical treatment for the injuries Plaintiff suffered in the crash.
E. Plaintiff's medical expenses which currently total $14,864.61 represents reasonable and necessary medical treatment Plaintiff received as a result of the crash on May 20, 2007.
F. Plaintiff will require medical treatment for her neck and back into the future which represents reasonable and necessary medical treatment for her neck and back injuries as a result of the crash.
A. Plaintiff had degenerative disc disease in her neck and lower back that preceded the May 20, 2007 accident.
B. Plaintiff was diagnosed with myofascitis prior to the accident.
C. Plaintiff's exacerbation of her degenerative disc disease by the accident was gone by July 2007.
D. Because Plaintiff's exacerbation of her degenerative disease resolved by July 2007, not all of the medical treatment that Plaintiff received for her back and neck after the accident was necessary and/or reasonable.
E. Plaintiff will not require medical treatment for her neck and back in the future as a result of the accident; any treatment she would receive would be a result of symptomatic degenerative disk disease and myofascitis that preceded the accident.
7.
The briefing package must be complete and filed with the Court by — pre-trial motion deadline has expired.
If no, discovery terminates on _______________________________.
Each party is under a continuing duty to supplement this list and the description of anticipated testimony. This does not, however, apply to a rebuttal witness. Indicate if the witness will testify in person or by deposition and include a brief description of the anticipated testimony. If the testimony is by deposition, identify the deposition by page number and line number. A witness who has not been identified and whose testimony has not been disclosed may not testify at trial unless good cause is shown.
Ms. Frietze will testify about all her claims, her UIM coverage, and the injuries she suffered in the crash. She will testify about the medical treatment she received and is to receive in the future. Ms. Frietze will testify about how her injuries affected her life.
Mr. Frietze will testify about the injuries suffered by Ms. Frietze and the affect the injuries had and continue to have on Ms. Frietze's life.
Ms. Chavez-Kelly will testify about the injuries suffered by Ms. Frietze and the affect the injuries had and continue to have on Ms. Frietze's life.
Dr. Delahoussaye will testify about the treatment he provided Ms. Frietze and the treatment he continues to provide to her. Dr. Delahoussaye will testify about any opinions he reached as a result of treating Ms. Frietze including the necessity of his treatment for her injuries as a result of the crash.
Plaintiff will call any witness necessary to lay the foundation for the admission of her medical bills such as record custodians.
Dr. Williams will testify about the treatment he provided Ms. Frietze. Dr. Williams will testify about any opinions he reached as a result of treating Ms. Frietze including the necessity of his treatment for her injuries as a result of the crash all of which is contained in his deposition.
Dr. Saiz will testify about the treatment he provided Ms. Frietze. Dr. Saiz will testify about any opinions he reached as a result of treating Ms. Frietze including the necessity of his treatment for her injuries as a result of the crash.
Dr. Henderson will testify about the treatment he provided Ms. Frietze. Dr. Henderson will testify about any opinions he reached as a result of treating Ms. Frietze including the necessity of his treatment for her injuries as a result of the crash.
Plaintiff may call any witness listed by the Defendant.
Dr. Radecki will testify about the record review IME he performed, Plaintiff's history as set forth in her medical records, and the opinions he reached about Plaintiff's medical condition and treatment, including the reasonableness and necessity of her medical treatment, and any other opinions he set forth in his reports and his deposition testimony. He will also testify about the basis for his opinions to include any additional deposition transcripts or other records.
Defendant may call any witness listed by the Plaintiff.
The parties must confer over all trial exhibits. This does not apply to rebuttal exhibits that cannot be anticipated before trial. The parties must file an original plus three (3) copies of the parties' "consolidated exhibit list identifying all exhibits that the parties have stipulated are admissible" and a "consolidated exhibit list identifying all exhibits the parties have stipulated to be authentic, but to which there are other objections" no later than September 24, 2013.
For those exhibits on which a stipulation could not be reached, the offering party must file a separate "contested exhibit list" no later than September 24, 2013. An original plus three (3) copies of each party's contested exhibit list must be filed on the date identified in the preceding paragraph. In addition, two courtesy copies of the contested and uncontested exhibit list must be delivered to the judge's chambers.
All exhibits must be marked before trial. Exhibits must be marked numerically and identify the party offering the exhibit. The identification number or letter will remain the same whether the exhibit is admitted or not.
An original and three (3) copies of a party's witness list must be filed with the Clerk and served on all parties by September 24, 2013. Indicate whether the witness is testifying by deposition or in person. Objections to use of deposition testimony are due within fourteen (14) calendar days of service of the witness list. The objecting party must highlight those portions of the requested deposition testimony to which the party objects. Plaintiff must use a yellow highlighter and defendant must use a blue highlighter. The parties must confer about any disputes and, if unable to resolve any differences, must notify the Court in writing by October 1, 2013.
The parties must confer and submit an agreed statement of the case to the Court that will be read to the jury panel during jury selection. The statement must be submitted to the Court by September 24, 2013.
February 27, 2013 before Judge Garza.
If no explain why not. The attorneys for the parties are communicating well with one another about settlement possibilities and what it would take to resolve this case. The attorneys believe the best chance to resolve this case would be for the attorneys to continue open communication to reach a resolution.
The Pretrial Order when entered will control the course of trial and may only be amended sua sponte by the Court or by consent of the parties and Court approval. The pleadings will be deemed merged herein.
The foregoing proposed Pretrial Order (prior to execution by the Court) is hereby approved this
