Free Proposed Pretrial Order - District Court of Colorado - Colorado

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No.: 04-cv-00560-OES-BNB

GEORGE M. BULL, Plaintiff, vs. UNION PACIFIC RAILROAD COMPANY, a corporation, Defendant.

REVISED FINAL PRETRIAL ORDER 1. DATE AND APPEARANCES On October 21, 2005, a final pretrial conference was held in the above-captioned matter. Plaintiff was represented by Fredric A. Bremseth and Jack Robinson, and defendant was represented by Mark C. Hansen. 2. JURISDICTION Jurisdiction is founded on Title 45, Sections 1-60, United States Code, Federal Employees Liability Act. 3. CLAIMS AND DEFENSES Plaintiff George Bull claims an acute injury to his back arising out of a February 28, 2003, incident wherein he was thrown about the cab of a rough riding locomotive. Plaintiff further claims that Union Pacific locomotive #6263 was defective, violated the Locomotive Inspection Act, was negligently maintained, and was negligently used in a lead position. These are career ending injuries, and plaintiff is seeking lost wages and future loss of earning capacity, in addition to general damages. Plaintiff also claims cumulative trauma injuries to his back caused by a career of operating rough

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riding Union Pacific locomotives with poorly maintained and inadequate seats over poorly maintained track. This Court granted summary judgment on those neck injuries suffered by plaintiff prior to March 23, 2001, and to those neck injury claims which the proofs show to be mere temporary aggravations of these preexisting injuries, and not new injuries. Union Pacific denies that there was any injury causing accident on February 28, 2003. Union Pacific affirmatively states that it fulfilled its legal duties to the Plaintiff at the time of this claimed incident and, therefore, was not negligent, did not violate the Locomotive Inspection Act and did not violate any other Federal statutes or regulations. The Defendant further claims that the Plaintiff's injuries, damages and losses, if any, which arose after the February 28, 2003 incident was caused by pre-existing non-work related medical conditions. With regard to Plaintiff's cumulative trauma claim, Defendant denies that it was negligent, denies that it violated the Locomotive Inspection Act and denies that it violated any Federal statutes or regulations. Defendant further contends that Plaintiff's cumulative trauma claim may be barred by the three year statute of limitations under the FELA. With regard to both claims, Defendant contends that Plaintiff was contributorily negligent and that Plaintiff's injuries, if any, were an aggravation of a pre-existing condition. With regard to both claims Defendant affirmatively asserts that Plaintiff failed to mitigate his damages by failing to take advantage of the vocational rehabilitation opportunities which Defendant offered to Plaintiff, by geographically limiting his job prospects, and by failing to undergo treatment as recommended by his doctors. On January 13, 2005, Defendant filed Motion for Summary Judgment on the statute of limitations with regard to the neck, upper back and cervical spine injuries sustained by Plaintiff as a result of a work related incident which occurred on February 9, 1987. Since the day of this incident Plaintiff has had pain in his neck, upper back and cervical spine. Plaintiff admitted that any claims arising out of the February 9, 1987 incident are time barred. However, Plaintiff argued that he sustained new injuries to his neck, upper back and cervical spine in late 2001 or early 2002 as a result

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of cumulative trauma at work and that he sustained an additional new injury to his neck, upper back and cervical spine as a result of the alleged February 28, 2003 rough ride at Medicine Bow, Wyoming. The Court granted Defendant's Motion for Summary Judgment with regard to all injuries sustained as a result of the February 9, 1987 incident and any subsequent aggravation of the injuries sustained in the February 9, 1987 incident. Plaintiff's treating physicians will testify that the alleged cumulative trauma and whole body vibration and the alleged rough ride at Medicine Bow, Wyoming, merely aggravated the previous injury to Plaintiff's upper back, neck and cervical spine. As such, Plaintiff is barred from asserting any claim for injury or pain in his upper back, neck or cervical spine by the Statute of Limitations and the Court's Order Granting Defendant's Motion for Summary Judgment on the Statute of Limitations. 4. STIPULATIONS The parties have not entered into any stipulations. 5. PENDING MOTIONS Plaintiff filed his motions in limine on the due date, October 4, 2005, on the subjects of: 1. 2. 3. assumption of the risk; collateral source; and a motion to exclude Neil K. Cooperrider as an expert witness dated October 14, 2005.

Defendant has filed the motions in limine: 1. Defendant's Motion in Limine to Exclude Plaintiff's Expert Witnesses, Tyler Kress, Ph.D. 2. Defendant's Motion in Limine to Exclude Documentary Evidence ­ the "Standish Correspondence".

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6. WITNESSES a. (1) List the non-expert witnesses to be called by each party. List separately: Witnesses who will be present at trial (see Fed. R. Civ. P. 26(a)(3)(A));

Plaintiff Will Call: (a) George Bull, 1183 County Road 135, Cheyenne, Wyoming 82009; 307-634-8067.

Mr. Bull will testify regarding the incident which occurred on February 28, 2003, and about rough riding locomotives, particularly Unit 6263, poor seats, complaints made to management, poor track and maintenance, lack of management response, and his injuries, treatment for them, recovery, and his understanding of his prognosis. (b) Rose Ann Bull, 1183 County Road 135, Cheyenne, Wyoming 82009; 307-634-8067.

Mrs. Bull will testify regarding her observations of Mr. Bull's injuries and treatment, and his activities before and after the February 2003 incident. (c) Larry Wessell, 1140 Centennial Drive, Cheyenne, Wyoming 82001; 307-638-9866.

Mr. Wessell was a union safety captain from 1992 to the present, and attended monthly meetings where he complained about rough riding locomotives, bad track, and poor seat quality. communicated problems with the seats to three superintendents, including Ron Naro. He

He has

persistently advocated using air ride seats to management. While air ride seats take more to maintain and cost more, rough riding locomotives and poor seats are injuring workers. Vibration works itself right up into your back, which is prevented, in Mr. Wessell's personal experience, by air ride seats. UP used air ride seats which improved ride quality in terms of vibration and shock, but then they took them off the locomotives. (d) Alvin Carley, 3135 Sitting Bull Road, Cheyenne, Wyoming 82009; 307-637-8345.

Mr. Carley will testify that he has been a conductor since 1968, and an engineer since 1993. The 6900 series (SD60s) were rough riding. He started noticing problems with SD90/9043s the first trip he made with them. In his experience, the truck body and frame of the locomotive would move in

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one direction, and because the cab was setting on rubber bushings, it would move the other direction. "It set up a lot of forces that we don't normally deal with. The frame would come up to meet you as the cab would be going down, and sooner or later the rubber bushings runs out and you come to a sudden stop." It's hard to describe the shimmy that he feels in these locomotives, and the ride is considerably different from others. In his opinion, these locomotives should never have been used in the lead, and that has been his opinion since they were first introduced. Though they were sent in for repair and retrofitting, there is no change of ride quality today. In the late 1980s and early 1990s, they still had quite a few locomotives that had toadstool seats. (e) Floyd Martinez, 809 Stevens Drive, Cheyenne, Wyoming 82001; 307-433-9337. Mr.

Martinez was with Mr. Bull when they complained about Unit 6263. They were forced to ride this worn out locomotive, and Mr. Martinez was an eyewitness to the accident. Mr. Martinez believes that track inspectors and roadmasters should ride with the units often, because their high rails will float over the soft spots and don't go 70 mph. In his opinion, locomotive 6263 was worn out and violated the Locomotive Inspection Act. He will also testify about locomotive vibration, seat quality and rough track, and his personal experience working with Mr. Bull. (f) Charles Albert Turner, 1248 King Drive, Loveland, Colorado 80532; 970-667-5391.

Mr. Turner will testify that he has been with UP since 1968, and an engineer since 1976 out of Cheyenne. He recalls the UP seat demonstration truck which did not have air ride seats. The demonstration truck was sent out because of all the complaints about poor seating. Mr. Turner has complained to many officials (Bill Kirby, yard supervisor; Ron Hamilton, MOP; JC Cox, road foreman; Sam Adcock, MOP), and has also brought complaints up at safety meetings (Larry Wessel ­ Cheyenne). The first SD60s (pre-comfort cabs) had air ride seats. They were 1000 times more comfortable than other seats. (g) Larry Clark, 113 Princeton, Ft. Collins, Colorado 80525-1739; 970-482-6480.

Mr. Clark will testify that in his 30 years at UP he has heard almost everyone complain about the

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poor seating. When they first came out with the comfort cabs, he was at a union meeting where there was a proposal to send someone to the locomotive manufacturer to discuss seats and how to make them more comfortable. He has pointed out loose or worn out seats to UP officers and they would ignore the complaints. He has ridden on a lot of locomotives with worn out seat cushions, with padding gone and duct tape on them. (h) Tex Maxwell, 1300 North Star Loop, Cheyenne, Wyoming 82009; 307-634-5479.

Mr. Maxwell will testify that he has worked for UP since 1966 and is now a conductor. He was injured on a bad order seat in 1999. The UP took the seat out and took it to the dump. He has been involved in union activity since 1980, and has witnessed many complaints about poor seating. There is way too much lateral movement in the 6000 series (SD60s). One problem is they are handling more tonnage and there seems to be less track work being done, and track conditions are worse. Roadmasters and track inspectors should ride with engineers on trains to see how bad the problem is. Defendant will call: (a) Gregory A. Pietruszynski, Manager Mechanical Engineering, Union Pacific Railroad

Company, Illinois. Mr. Pietruszynski will testify in accordance with his knowledge and work with locomotives and seats. (b) Kenneth Mike Wright, former Director Track Maintenance (Retired), Union Pacific

Railroad Company, Cheyenne, Wyoming (307) 634-2222. Mr. Wright will testify regarding the track maintenance program while he was employed with the Union Pacific and the track at the scene of the alleged accident. (c) Levi R. Mceuen, Superintendent Coal Operations, Union Pacific Railroad Company,

2790 D Road, Grand Junction, Colorado (970) 248-4262. Mr. Mceuen will testify regarding his knowledge of the alleged accident and Mr. Bull's conduct relating to this accident.

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(d)

Gary D. Johnson, MISD Safety Consulting, 299 Connor Lane, Lucas, Texas. Mr.

Johnson will testify regarding seat safety while he was employed by Union Pacific Railroad Company. (e) Joseph Blythe, M.A., CRC, Progressive Case Management, Windsor, Colorado. Mr.

Blythe will testify in accordance with his vocational efforts on behalf of the Plaintiff. (2) Witnesses who may be present at trial if the need arises (see Fed. R. Civ. P. 26(a)(3)(A));

For Plaintiff: (a) Edward C. Welsh, 5604 Laura Dawn Avenue, Cheyenne, Wyoming 82009; 307-632-

1632. Mr. Welsh will discuss his personal experience with rough riding locomotives, causing back pain. Excessive lateral movement throws your body to the left and to the right, and pounding throws your body down towards the floor, when you get a jarring or shock that goes up the spine. Bottoming out happens fairly frequently, perhaps three times a week. The newer locomotives have most of the problems, and he personally has experienced back pain either at the time of bottoming out, that evening, or over the next several days as a result of rough rides. Over the last ten years, he has experienced "electrical shock that goes up my back, my spine, when the locomotive pounds." He has ridden in semi-tractors with air ride seats, and these would prevent the bottoming out in locomotives. Track quality has declined for the last 10-15 years due to reduction in maintenance force. He personally has been diagnosed with a herniated disk. (b) James J. Mallon, 2115 Phillips Place, Cheyenne, Wyoming 82009; 307-635-1314.

Mr. Mallon will testify that track maintenance today is nowhere near as good as in earlier years. They had men doing it before and now it is machines. There has been a reduction in quality of ride due to track conditions. He personally made complaints to the union about seats. He has been thrown around and or shaken up really roughly ­ if it wasn't for armrests, he would have been thrown to the floor. "I've had some units where it's dang rough and I've been sore the next day." UP's SD90s ride rough and bottom out. When that happens, it hurts and the spine feels a shock. He

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has back pain that is aggravated by the ride quality of locomotives. The seats are too firm, and they are also "just straight to the floor," with minimal padding. In his opinion, some type of shock absorbing system between the seat and the floor would improve safety. (c) Darrell McMullen, Jr., 9900 Wayne Road, Cheyenne, Wyoming 82009; 307-638-

9702. Mr. McMullen will testify that 20% of the trains on Division 4 are fast trains. Slow orders became more frequent in the mid-1990s. Even with slow orders, when the locomotive travels over the section of track, the ride is still rough. "Everybody's complained about rough ride and it does make you sore." His own back is noticeably stiffer after getting jerked and bounced around on locomotives. The SD90s were notorious system wide for being rough riders, but they were required to ride on those for a long time before they took them off point. He has ridden in locomotives with wobbling and shaking seats. (d) Everett Carrico, 3713 Starlight Drive, Ft. Collins, Colorado 80524; 970-224-5357.

Mr. Carrico will testify about riding SD90s frequently, and the ride was "like riding a bucking bronco." Even when they were traveling at 50-60 mph, when they hit a crossover, it would shake you laterally in your seat. They would also bottom out. Most of the newer, larger locomotives have a lot of vibration. If you try to write on a piece of paper on the dash it looks like a first grader trying to write a letter. The faster you go, the more vibration. The 8500s are the worst. The efforts to improve the ride quality of 8500s have been unsuccessful, and in his opinion they should not be used in the lead, particularly since the track has been getting rougher. (e) Dennis Church, 4319 East 8th Street, Cheyenne, Wyoming 82009; 307-638-3525.

Mr. Church will testify that he has been a conductor since 1973, and roadmasters used to routinely ride the locomotives twice a month up until the early 1990s. In the last five years, there have only been two times when a roadmaster road along with him. They now inspect the track in a high-rail vehicle, which does not disclose track problems because it is much lighter than a locomotive. When sections of track are dangerously rough particularly after a rain, slow orders are instituted to prevent

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derailment, not to improve ride quality. Even with a slow order in place, if the track is rough, there is still a rough ride on the locomotive. There are still toadstool seats in a few units today. Since the 1980s, the number of slow orders has doubled or tripled. (f) Claire J. Kirkpatrick, 4045 Capital Drive, Ft. Collins, Colorado 80526; 970-223-

8593. Mr. Kirkpatrick will testify that he has been an engineer since 1974. Form 25005 is the UP engineer's inspection report, and Mr. Kirkpatrick has filled these out many times complaining of defects. He frequently will get the same locomotive back weeks later with his form still in the unit and nothing fixed. These problems include worn out seats on units that are 4-5 years old, and UP won't replace them. "It gets to the point that you think why bother as the UP doesn't care to fix the problems." (g) Mike Daly, 1000 Stone Flower Court, Ft. Collins, Colorado 80520; 970-267-8765.

Mr. Daly will testify he was a BLE chairman from 1989 to 1991, and has many union members complain of locomotive seats that needed repair, couldn't be adjusted, or were worn out. Some sat at angles. Daly would take these complaints to the safety committee, and at no point were they were afforded a chance to replace a bad seat or switch out a unit with a bad seat. He does recall UP locomotives with air ride seats, and they were very comfortable. In his 30 year career with UP he has had many worn out seats, and he continues to get them "but you just have to use them." (h) Danny Joe Eberl, UP engineer; contact information is through defendant. Mr. Eberl

will testify regarding the trip he worked with UP 6263 in the lead with Dick Steensen immediately after the incident in which plaintiff was injured, the paperwork purportedly filled out by work crews, and the results of those reports. (i) Kirby O'Connor, UP track inspector, contact information is through defendant.

Mr. O'Connor will testify regarding his inspection of mile post 623-633 two days before the incident in which plaintiff was injured.

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(j)

Dick C. Steensen, UP conductor, is through defendant. Mr. Steensen will testify

regarding the trip he worked with UP 6263 in the lead with Dick Steensen immediately after the incident in which plaintiff was injured, the paperwork purportedly filled out by work crews, and the results of those reports. (k) Greg Bryant, 2811 Black Box Road, Cheyenne, Wyoming 82009; 307-635-2033.

Mr. Bryant will testify that SD90s/9043s have a very poor ride, especially with lateral shaking. The 8500s returned to service after retrofitting and modifications but have no improvement in ride quality. In his opinion, they should never be used in the lead. (l) Darrell McMullen, Sr., 1850 East 22nd Street, Cheyenne, Wyoming 82001; 307-632-

1082. Mr. McMullen will testify that he has been a locomotive engineer since 1979. In the 1970s and 1980s, there were three section men and a foreman for every 12-13 miles of double track, and they were continually maintaining that section. However, with deregulation, track got rougher, maintenance got less, and there were fewer people to do the work. There are the same dips and rolls as there always were, but they don't have enough people to fix them soon enough, which contributes to the SD90 rough ride problems. To improve the track, his suggestion is to hire more people. (m) Neal Cashman, PT United Medical Center, 214 East Twenty-Third, Cheyenne,

Wyoming. Mr. Cashman may testify regarding the Physical Work Performance Evaluation which he performed with regard to Mr. Bull. (n) Gary Mahlman, 8215 Buckboard Road, Cheyenne, Wyoming 82009; 307-637-5133.

Mr. Mahlman has been working as conductor with the railroad, and has knowledge regarding rough riding locomotives, rates of pay, and earnings as a conductor in Cheyenne, Wyoming. (o) Robert Turner, 197 Joyce, Cheyenne 82009, 307-634-4165. Mr. Turner has

knowledge with respect to rough riding locomotives, and has been employed for many years by defendant.

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For Defendant: (a) Ron Naro ­ Former Superintendent of the Cheyenne Service Unit who may testify

regarding operations, procedures and conditions on this Service Unit. (b) Sandy Walraven ­ Senior Claims Specialist in Cheyenne, Wyoming who may testify

regarding her handling of Mr. Bull's claims. (c) Bill Kirby ­ Manager of Terminal Operations in Cheyenne, Wyoming who may

testify regarding his knowledge of the alleged traumatic accident and the operations, procedures and conditions on the Cheyenne Service Unit. (d) Neal Cashman, PT United Medical Center, 214 East Twenty-Third, Cheyenne,

Wyoming. Mr. Cashman may testify regarding the Physical Work Performance Evaluation which he performed with regard to Mr. Bull. (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.

Plaintiff will present by deposition: (a) Greg Pietruszynski, 2405 Finn Court, Plainfield, Illinois 60544; telephone number

unknown; plaintiff will read his October 22, 2004 deposition and exhibits to the jury. (b) Ron Naro, 850 Jones Street, Omaha, Nebraska, address and telephone number.

Plaintiff will read his October 27, 2004 deposition and exhibits to the jury. Defendant will present by deposition: (a) Steven Beer, M.D., Wyoming Spine & Neuro Surgery, 1950 Bluegrass Circle, Suite

#170, Cheyenne, WY 82009 who will testify consistent with his medical records and deposition testimony.

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b. (1)

List the expert witnesses to be called by each party. List separately: Witnesses who will be present at trial (see Fed. R. Civ. P. 26(a)(3)(A));

Plaintiff will call: (a) William C. Pugh, P.O. Box 1518, Valparaiso, Indiana 46384. Mr. Pugh will testify in

accordance with his deposition and his report, previously submitted to defendant. (b) Dr. James Evenson, 1095 West 127th Place, Westminster, Colorado 80234.

Dr. Evenson will testify in accordance with his deposition and his report, previously submitted to defendant. (c) Tyler A. Kress, Ph.D., BEST Engineering, 2312 Craig Cove Road, Knoxville, TN

37919-9311. Dr. Kress will testify in accordance with his deposition and his report, previously submitted to defendant. (d) James M. Gracey, Ed.D., CRC, CLCP, Colorado Institute for Injury Rehabilitation, 80222. Dr. Gracey will testify in

1660 South Albion Street, Suite 1010, Denver, Colorado

accordance with his deposition and his report, previously submitted to defendant. (e) Pat McKenna, Starting Point, 8745 West 14th Avenue, Suite 112, Lakewood,

Colorado 80215. Ms. McKenna will testify in accordance with her deposition and her report, previously submitted to defendant. (f) Jim C. Scott, Scott & Associates Railroad Operations Consultants, P.O. Box 5289,

Kingsport, Tennessee 37663-0289. Mr. Scott will testify in accordance with his deposition and his report, previously submitted to defendant. (g) Jeffrey Kleiner, M.D., Spine Consultants, 1411 South Potomac, #400, Aurora, Dr. Kleiner will testify consistent with his medical records and deposition

Colorado 80012. testimony.

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(h)

Steven Beer, M.D., Wyoming Spine & Neuro Surgery, 1950 Bluegrass Circle, Suite

#170, Cheyenne, WY 82009. Dr. Beer will testify consistent with his medical records and deposition testimony. Defendant will call: (a) Neil Cooperrider, Ph.D., P.E. 8925 West Long Meadow Drive, Prescott, Arizona

(928) 899-3321. Dr. Cooperrider will testify in accordance with his report. (b) Stanley J. Bigos, M.D., P.E., School of Medicine, University of Washington, 2301

Fairview Avenue, Seattle, Washington (206) 323-9129. Dr. Bigos will testify in accordance with his Report and medical examination of the Plaintiff. (c) Greg G. Weames, C.R.S.P., Page Engineering, 1829 Ranchlands Blvd., Calgary,

Canada. Mr. Weames will testify in accordance with his studies, findings and report. (d) Joseph Blythe, M.A., CRC, Progressive Case Management, Windsor, Colorado. Mr.

Blythe will testify in accordance with his vocational efforts on behalf of the Plaintiff. (e) Robert Van Iderstine, CRC, Western Slope Rehabilitation, Grand Junction, Colorado.

Mr. Van Iderstine will testify in accordance with his rehabilitation efforts and report. (f) Kurt Dudley, P.T., Cottonwood Back, Salt Lake City, Utah. Mr. Dudley will testify

regarding his physical therapy work with the Plaintiff.

(g)

Charles "Chuck" Sherfey, Consulting Actuary, 1100 W. Lonnquist Boulevard,

Mt. Pleasant, IL 60056; 847/398-3143. Mr. Sherfey will testify regarding his knowledge from review of railroad retirement records and statistics, and the corresponding work life expectancy of railroad workers including the Plaintiff.
(h) James G. Haller, M.D., 123 Cole Shopping Center, Cheyenne, Wyoming 82001; 307-

634-8802. Dr. Haller will testify in accordance with his examinations of Mr. Bull and his medical records and deposition testimony.

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(i)

Dr. John Wright, Cheyenne Radiology Group, 800 E. 20th, Suite 10, Cheyenne,

Wyoming 82001 who will testify consistent with his review of radiological films and deposition testimony.

(j)

Steven Beer, M.D., Wyoming Spine & Neuro Surgery, 1950 Bluegrass Circle, Suite

#170, Cheyenne, WY 82009 who will testify consistent with his medical records and deposition testimony. (1) Expert Witnesses who may be present at trial if the need arises (see Fed. R. Civ. P. 26(a)(3)(A)):

For Plaintiff: (a) William H. Muzzy, WHMuzzy Consulting, LLC, 3637 Peachtree Street, Slidell,

Louisiana 70458-5247. Mr. Muzzy will testify in accordance with his deposition and his report, previously submitted to defendant. (b) James G. Haller, M.D., 123 Cole Shopping Center, Cheyenne, Wyoming 82001; 307-

634-8802. Dr. Haller will testify in accordance with his examinations of Mr. Bull and his medical records. (c) Vincent Ross, M.D. Smart Sports Medicine, 5307 Yellowstone Rd, Cheyenne,

Wyoming 82009; 307-632-7677. Dr. Ross will testify in accordance with his examinations of Mr. Bull and his medical records. For Defendant: (a) Neal Cashman, PT United Medical Center, 214 East Twenty-Third, Cheyenne,

Wyoming. Mr. Cashman may testify regarding the Physical Work Performance Evaluation which he performed with regard to Mr. Bull. (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.

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For Defendant: (a) Steven Beer, M.D., Wyoming Spine & Neuro Surgery, 1950 Bluegrass Circle, Suite

#170, Cheyenne, WY 82009 who will testify consistent with his medical records and deposition testimony. (b) EXHIBITS

List the exhibits to be offered by each party and identify those to be stipulated into evidence. (1) Plaintiff: See exhibit list attached hereto. (2) Defendant(s): See exhibit list attached hereto. 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 objections 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 11 days after the exhibits are provided. (c) DISCOVERY

Discovery has been completed with the exception of the completion of the deposition of Dr. Kress. (d) SPECIAL ISSUES

Plaintiff objects to defendant's witnesses Joe Blythe, Charles Sherfay and Gary D. Johnson on the basis of inadequate Rule 26 disclosure. Defendant objects to Plaintiff's witnesses Larry Wessell, Alvin Carley, Charles Albert Turner, Larry Clark, Tex Maxwell, Edward Welsh, James Mallon, Darrell McMullen, Jr., Everett Carrico, Dennis Church, Claire J. Kirkpatrick, Mike Daley, Danny Jo Eberl, Dick C. Steensen, Greg Bryant, Darrell McMullen, Gary Mahlman and Robert Turner on the basis of inadequate disclosure under Rule 26 and the cumulative effect of the testimony of these witnesses and Pat McKenna or any

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testimony based on the April 15, 2005 report of Pat McKenna on the basis of inadequate disclosure under Rule 26. (e) a. SETTLEMENT

Counsel for the parties and any pro se party met in person, and most recently by telephone on September 30, 2005, to discuss in good faith the settlement of the case.

b.

The participants in the settlement conference, included counsel, party representatives, and any pro se party.

c. d.

The parties were promptly informed of all offers of settlement. Counsel for the parties and any pro se party (do) (do not) intend to hold future settlement conferences.

e.

It appears from the discussion by all counsel and any pro se party that there is (select one): a good possibility of settlement; some possibility of settlement little possibility of settlement no possibility of settlement.

f.

The date of the next settlement conference before the administrative judge or other alternative dispute resolution method. None.

g.

Counsel for the parties and any pro se party considered ADR in accordance with D.C.COLO.LCivR. 16.6. (f) OFFER OF JUDGMENT

Counsel and any pro se party acknowledge familiarity 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.

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(g)

EFFECT OF FINAL PRETRIAL ORDER

The following paragraph shall be included in the 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 Pretrial Order supersedes 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. (h) TRIAL AND ESTIMATED TRIAL TIME; FURTHER TRIAL PREPARATION PROCEEDINGS

State: 1. 2. 3. 4. whether trial is to the court or a jury or both; estimated trial time; situs of trial; and any other orders pertinent to the trial proceedings Jury. 10 days, 5 for plaintiff's case. Denver None.

DATED this _____ day of October, 2005. BY THE COURT:

United States Magistrate Judge

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APPROVED this 21st day of October, 2005. BREMSETH LAW FIRM, P.C. UNION PACIFIC RAILROAD COMPANY

By: s/Fredric A. Bremseth____________ Fredric A. Bremseth (#11149) Keith E. Ekstrom (#181808) 810 East Lake Street Wayzata, Minnesota 55391-1839 (952) 475-2800 And

By: s/Mark C. Hansen______________ Mark C. Hansen, #12306 1331 17th Street, Suite 406 Denver, CO 80202 303-964-4583 Attorneys for Defendant

SPIES, POWERS & ROBINSON, P.C. Jack D. Robinson, #22037 1660 Lincoln Street, Suite 2220 Denver, Colorado 80264 303-830-7090 Attorneys for Plaintiff

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