Free Proposed Pretrial Order - District Court of Colorado - Colorado

Case 1:04-cv-01253-MSK-MJW

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-MK-1253 (MJW) RICHARD TEBO Plaintiff, v. LAURA M. BAKOS, and LEVTZOW LIMO LLC, doing business as MOUNTAIN LIMO DELUXE LLC, Defendants.

FINAL PROPOSED PRE-TRIAL ORDER

1. DATE AND APPEARANCES Date: October 6, 2005 Appearances: None Plaintiff: Dr. Richard Tebo Attorneys: Michael W. Kerensky, Esq. 5300 Memorial # 950 Houston Texas 77007 Texas Bar: 11331500 713 522 8686 713 522 6925 fax [email protected] Pro Hac Vice (motion pending unopposed)

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Jeff Marsh, Esq. 1770 St. James Place Suite 350 Houston Texas 77056 713 626 2774 713 626 775 fax [email protected] Texas Bar: 13018300 Bill Marlin, Esq. Mike Leinz, Esq. Breit, Bosch, Coppola & Marlin 1512 Larimer Street, Suite # 900 Denver, Colorado 80202 303-573-7777 office 303-825-3950 [email protected] Defendants: Levtzow LLC d/b/a Mountain Limo and Laura M. Bakos Attorneys: Patrick Maggio, Esq. Miles Dewhirst, Esq. Dewhirst & Dolven, LLC 102 South Tejon, Suite #500 Colorado Spring, Colorado, 80903 719-520-1421 phone 719-633-3387 fax 2. JURISDICTION This case is based upon Diversity Jurisdiction. Plaintiff is a citizen of Texas. Defendants are citizen's of Colorado. The amount in controversy exceeds the jurisdictional minimum of this court. Jurisdiction is not contested in this case. 3. CLAIMS AND DEFENSES Plaintiff's Claims: Negligence: Plaintiff claims that Laura M. Bakos was operating a vehicle in the course and scope of her employment on January 16, 2002, at approximately 4:40 p.m. when she negligently lost control of the vehicle causing it to leave the roadway and roll over. Proximate Cause: The negligence and resulting crash made the basis of this suit was a proximate cause of injuries to Richard Tebo. 2

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Damages: Richard Tebo makes a claim for the following elements of damage: A. Medical costs in the past. B. Medical costs in the future. C. Economic loss in the past D. Economic loss in the future E. Mental anguish in the past. F. Mental anguish in the future G. Impairment in the past H. Permanent impairment in the future I. Pain in the past. J. Pain in the future. 4. STIPULATIONS None. 5. PENDING MOTIONS Plaintiffs have filed or will presently file Motions for Admission Pro Hac Vice for Michael W. Kerensky and Jeff Marsh. These motions are unopposed. 6. WITNESSES a. Non expert witnesses to be called by the plaintiff (1) witnesses who will be present at trial (see Fed. R. Civ. P. 26(a)(3)(A)); a. Richard Tebo; Plaintiff. Will testify about the crash in question and issues related to damages. b. Rene Tebo: Plaintiff's wife. Will testify about the crash in question and issues related to damages. c. Laura Bakos; Defendant Driver; will testify about the crash. e. Darcy Levtzow; Will testify about the defendant driver, the hiring of the defendant driver, supervision of the defendant driver and the logistics of the transportation of the plaintiff on the day in question as well as the return trip to the airport. f. Officer Patrick G. Averett; Investigating Officer; Will testify to his investigation and photographs taken at the scene of the accident. (2) witnesses who may be present at trial if the need arises (see Fed. R. Civ. P. 26(a)(3)(A)); and 3

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None known at this time. (2) witnesses where testimony is expected to be presented by means of a deposition and, if not taken stenographically, a transcript of the pertinent portions of the deposition testimony. See Fed. R. Civ. P. 26(a)(3)(B). a. Richard Crow; Eye Witness to the crash; Will testify about the crash and the conduct of defendant driver. b. Janet Crow; Eye Witness to the crash; Will testify about the crash and the conduct of defendant driver. c. Tom Pearson; Eye Witness to the crash; Will testify about the crash and the conduct of defendant driver. b. List the expert witnesses to be called by plaintiff: (1) witnesses who will be present at trial (see Fed. R. Civ. P. 26(a)(3)(A)); Thomas Mayor 5555 Del Monte #1306 Houston, TX 77056 (713) 552-1522: Telephone Dr. Mayor has performed an analysis of the lost income to Dr. Richard Tebo both in the past and in the future and will testify about the proper method of reducing that amount to present value. (2) witnesses who may be present at trial (see Fed. R. Civ. P. 26(a)(3)(A)); and Dr. Jeffrey B. Kleiner Spine Consultants P.C. 1411 S. Potomac St. Suite 400 Aurora, Colorado 80012 303 671 6400 Dr. Kleiner was hired by the defendant to perform an independent medical examination of Dr. Tebo. Dr. Kliener will be asked to testify concerning issues discussed in his report including his examination and findings, opinions about the nature and extent of Dr. Tebo's injury and the cause thereof, his projections for the future care and treatment and condition of Dr. Tebo.

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(3)

witnesses where testimony is expected to be presented by means of a deposition and, if not taken stenographically, a transcript of the pertinent portions of the deposition testimony. See Fed. R. Civ. P. 26(a)(3)(B). Heilman Alan E M.D., PA Fondren Orthopedic7401 Main Street Houston, TX 77030 (713) 799-2300

Dr. Heilman is Dr. Tebo's treating physician. He will testify that Dr. Tebo has a permanent injury to his neck and that his options are to either modify his practice of dentistry to accommodate that injury or if his pain becomes unbearable, have surgery on his neck in the form of a double fusion. Dr. Tebo has been deposed and plaintiff will offer the entirety of the deposition discussing Dr. Heilman's care and treatment of Dr. Tebo, his diagnosis, and opinions concerning Dr. Tebo's medical future and past. a. Non expert witnesses to be called by the Defendants. (1) witnesses who will be present at trial (see Fed. R. Civ. P. 26(a)(3)(A)); a. Richard Tebo; Plaintiff. Will testify about the crash in question and issues related to damages. b. Rene Tebo: Plaintiff's wife. Will testify about the crash in question and issues related to damages. c. Laura Bakos; Defendant Driver; will testify about the crash. e. Darcy Levtzow; Will testify about the defendant driver, the hiring of the defendant driver, supervision of the defendant driver and the logistics of the transportation of the plaintiff on the day in question as well as the return trip to the airport. f. Officer Patrick G. Averett; Investigating Officer; Will testify to his investigation and photographs taken at the scene of the accident. witnesses who may be present at trial if the need arises (see Fed. R. Civ. P. 26(a)(3)(A)); and None known at this time. (3) witnesses where testimony is expected to be presented by means of a deposition and, if not taken stenographically, a transcript of the pertinent portions of the deposition testimony. See Fed. R. Civ. P. 26(a)(3)(B).

(2)

b.

List the expert witnesses to be called by Defendants:

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Patricia L. Pacey, Ph.D. and John Butler Pacey Economics Group (1) witnesses who will be present at trial (see Fed. R. Civ. P. 26(a)(3)(A));

Patricia L. Pacey, Ph.D. and John Butler Pacey Economics Group 6630 Gunpark Drive, Suite 200 Boulder, CO 80301 The nature of this testimony relates to an analysis of the claimed monetary losses, of Dr. Tebo, and the causes and the basis for the claimed monetary losses. Dr. Pacey and John Butler believe that Dr. Tebo does not lose as much work time as he has claimed and that the reason for the loss of work time is not solely because of his pain. Generally, the purpose of this testimony will be to attack the validity of Plaintiff's claimed damages, and the position of Plaintiff's experts on the subject, and to provide a reasoned and rational position regarding our evaluation of Dr. Tebo's claimed injuries and losses. 7. EXHIBITS Plaintiff's Exhibits: 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16. 17. 18. 10. 20. 21. Accident Report Crash Photos Records of Dr. Alan Hielman re: Richard Tebo Records of Gunnison Valley Hospital re: Richard Tebo Records of Red Mountain Radiology Prof LLC re Richard Tebo Records of Gunnison Valley Hospital - EMS re: Richard Tebo Records of Texas Orthopedic Hospital re: Richard Tebo Records of Dr. Robert H. Fain re: Richard Tebo Records of Spinal Therapy Institute re Richard Tebo Records of Greater Houston Anesthesiologist re Richard Tebo Records of Dr. Uday Doctor re Richard Tebo Billing for Dr. Alan Hielman re: Richard Tebo Billing for Gunnison Valley Hospital re: Richard Tebo Billing for Red Mountain Radiology Prof LLC re Richard Tebo Billing for Gunnison Valley Hospital - EMS re: Richard Tebo Billing for Texas Orthopedic Hospital re: Richard Tebo Billing for Dr. Robert H. Fain re: Richard Tebo Billing for Spinal Therapy Institute re Richard Tebo Billing for Greater Houston Anesthesiologist re Richard Tebo Billing for Dr. Uday Doctor re Richard Tebo Appointment Calendar for 2001 Dr. Richard Tebo 6

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22. 23. 24. 25. 26. 27. 28. 29. 30. 31. 32. 33. 34. 35. 36. 37. 38. 39. 40. 41. 42. 43. 44. 45. 46. 47. 48.

Appointment Calendar for 2002 Dr. Richard Tebo Appointment Calendar for 2003 Dr. Richard Tebo Appointment Calendar for 2004 Dr. Richard Tebo Appointment Calendar for 2005 Dr. Richard Tebo Daily Summary Sheets 2001 Dr. Richard Tebo Daily Summary Sheets 2002 Dr. Richard Tebo Daily Summary Sheets 2003 Dr. Richard Tebo Daily Summary Sheets 2004 Dr. Richard Tebo Daily Summary Sheets 2005 Dr. Richard Tebo Monthly Summary Sheets 2001 Dr. Richard Tebo Monthly Summary Sheets 2002 Dr. Richard Tebo Monthly Summary Sheets 2003 Dr. Richard Tebo Monthly Summary Sheets 2004 Dr. Richard Tebo Monthly Summary Sheets 2005 Dr. Richard Tebo Personal Income Tax Statement 2001 Richard and Rene Tebo Personal Income Tax Statement 2002 Richard and Rene Tebo Personal Income Tax Statement 2003 Richard and Rene Tebo Personal Income Tax Data 2004 Richard and Rene Tebo Report Dr. Tom Mayor Report of Dr. Jeffrey Kliener Damage Photos of van in question (see defendants initial disclosures) Photographs of Dr. Tebo's initial injuries. Documents concerning the criminal prosecution of Laura Bakos (Defendant's Supplemental Disclosures 589-630 Trip Documents, Mountain Limo (Defendant's Supplemental Disclosures 631635) Laura Bakos Personnel File (Defendant's Supplemental Disclosures 636-653) Maintenance Documents (Defendant's Supplemental Disclosures 665-682) Mountain Limo orientation and training documents (Defendant's response to request for production 684-669

Defendants object to the reports of Drs. Mayor and Heilman. Defendant's Exhibits All reports and supplements prepared by Dr. Pacey and John Butler together with any documents relied upon or referenced in said reports, including all of Dr. Tebo's work schedules, office calendars, appointment books, and the like, including Dr. Pacey's reports of January 10, 2005 and September 9, 2005. Defendants may use any or all exhibits endorsed by Plaintiff. Defendants may use additional reports or demonstrative evidence as rebuttal to evidence endorsed by Plaintiff. Plaintiff objects to the reports of Dr. Pacey and John Butler. 7

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Plaintiff stipulates to the admissibility of Dr. Tebo's "work schedules, office calendars appointments books". 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 objects 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 ll days after the exhibits are provided.

8. DISCOVERY The parties conducted a mediation on September 28, 2005. At the close of mediation, the defendant's requested that the plaintiff leave open his last offer to settle until October 7, 2005. This deadline was later extended to October 11, 2005 because of the death of a family member related to a member of the defense team. The parties agreed to extend discovery to November 7, 2005 in order to create time to complete settlement negotiations. If settlement is not reached, the parties have agreed to file a joint motion with the court to complete discovery. The outstanding discovery for the plaintiff consists of the deposition of the defendant driver, if the defendant does not stipulate to liability and the deposition of the defendant's medical expert who's report was completed the day before mediation. 9. SPECIAL ISSUES None. 10. SETTLEMENT Undersigned counsel for the parties certify that: a. Counsel for the parties met in person on September 28, 2005, to discuss in good faith the settlement of the case. The participants in the settlement conference, included counsel and party representatives as well as a mediator. The parties were promptly informed of all offers of settlement. Counsel for the parties do intend to hold future settlement conferences. It appears from the discussion by all counsel and any pro se party that there is: some possibility of settlement. 8

b.

c. d. e.

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f.

The date of the next settlement conference before the magistrate judge or other alternative dispute resolution method. None Not applicable. Counsel for the parties participated in ADR in accordance with D.C.COLO.LCivR.16.6.

g. h.

11. OFFER OF JUDGMENT Counsel and any pro se party 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 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, any 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 merges herein. This Final Pretrial Order supercedes 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 the extent reported by stenographic notes and to the pleadings. 13. TRIAL AND ESTIMATED TRIAL TIME; FURTHER TRIAL PREPARATION PROCEEDINGS 1. 2. 3. 4. Trial is to a jury. Estimated trial time, 4 days of testimony. Trial in Denver Colorado Federal Court. No other orders pertinent to the trial proceedings 2005.

DATES this _____ day of __________

BY THE COURT:

____________________________________ United States Magistrate Judge 9

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APPROVED: S/ Michael W. Kerensky Michael W. Kerensky 5300 Memorial # 950 Houston Texas 77007 Texas Bar: 11331500 Tel: (713) 522 8686 Fax: (303) 713-522-6925 E-mail: [email protected] Attorneys for Plaintiff s/ Bill Marlin Bill Marlin, Esq. Mike Leinz, Esq. Breit, Bosch, Coppola & Marlin 1512 Larimer St., Suite 900 Denver, CO 80202 Tel: (303) 573-7777 Fax: (303) 825-3950 E-mail: [email protected] Attorneys for Plaintiff

S/ Patrick J. Maggio Patrick J. Maggio Miles M. Dewhirst, Esq. Dewhirst & Dolven, LLC 102 S. Tejon St., Suite 500 Colorado Springs, CO 80903 Tel: (719) 520-1421 Fax: (303) 633-3387 E-mail: [email protected] Attorneys for Defendants

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CERTIFICATE OF MAILING I hereby certify that on this 6th day of October 2005, I electronically filed the foregoing Proposed Final Pre-Trial Order with the Clerk of the Court using the CM/ECF system, which will send notification of such filing to the following e-mail addresses: [email protected] Michael W. Kerensky, Esq. 5300 Memorial Drive, Suite 950 Houston, TX 77007 Attorney for Plaintiff [email protected] William C. Marlin, Esq. Michael T. Leinz, Esq. 1512 Larimer St, Suite 900 Denver, Co 80202 Attorney for Plaintiffs S/ Tonya D. Feigt, Paralegal Tonya D. Feigt

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