Free Proposed Scheduling Order - District Court of Colorado - Colorado

Case 1:03-cv-00236-LTB-KLM

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 03-cv-00236-LTB-KLM YU KIKUMURA,

Plaintiff(s), v. ANTHONY OSAGIE, MICHAEL VAIL, KEITH SANDERS, and UNITED STATES OF AMERICA, Defendant(s). SCHEDULING ORDER 1. DATE OF CONFERENCE AND APPEARANCES OF COUNSEL AND PRO SE PARTIES The scheduling conference took place on April 11, 2008. Attorneys for Plaintiff Yu Kikumura: Richard L. Gabriel Amy Bauer Holme Roberts & Owen LLP 1700 Lincoln Street, Suite 4100 Denver, Colorado 80203-4541 Telephone: (303) 861-7000

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Attorney for Defendants Anthony Osagie, Michael Vail, Keith Sanders, and United States of America. Kevin T. Traskos Assistant U.S. Attorney U.S. Attorney's Office for the District of Colorado 1225 17th Street, Suite 700 Denver, Colorado 80202 Telephone: (303) 454-0100 2. STATEMENT OF JURISDICTION This is a civil action brought pursuant to the Eighth Amendment and the Federal Tort Claims Act ("FTCA"), arising out of alleged improper medical treatment of a federal prisoner. Jurisdiction in this Court is proper pursuant to 28 U.S.C. § 1331 (federal question), Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971), and 28 U.S.C. §§ 1346(b), 2671 et seq. 3. STATEMENT OF CLAIMS AND DEFENSES a. Plaintiff's Statement of the Claims: Plaintiff, formerly a federal prisoner incarcerated

at the United States Penitentiary, Administrative Maximum ("ADX") in Florence, Colorado, filed the present action on February 7, 2003, asserting Bivens claims in connection with inadequate medical care that he received from prison officials in July 2002. Plaintiff named as Defendants Anthony Osagie, Officers Vail and Sanders, and certain supervisory officials, namely, Defendants Greenwood, Bauer, Pugh, and Burrell. On May 28, 2003, Plaintiff filed an Amended Complaint, in which he added the United States as a defendant and asserted various additional claims pursuant to the FTCA. On September 8, 2006, the Tenth Circuit reversed this Court's dismissal of eleven of the fourteen claims asserted in Plaintiff's Amended Complaint. The Tenth Circuit affirmed the dismissal of three claims, including the claims against the 2
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supervisory Defendants. Accordingly, the claims asserted by Plaintiff and currently before this Court are as follows: Counts 1-4: Bivens claims against Defendant Osagie for failure to provide timely and effective medical care, for failure to provide care, for failure to fulfill his gatekeeper role, and for failure to provide Plaintiff with medical aid. Court 5: Bivens claims against Defendants Vail and Sanders for denying Plaintiff access to medical care. Counts 7-9, 11: FTCA claims against the United States based on Defendant Osagie's negligent diagnosis and treatment, negligent failure to detect the nature of Plaintiff's emergency medical condition, negligent failure to refer Plaintiff to or to consult with the prison doctor, and outrageous conduct. Counts 12-13: FTCA claims against the United States based on Defendants Vail and Sanders' negligent failure to refer Plaintiff to or to consult with the prison doctor and outrageous conduct. b. Defendants: Defendants submit that they are not liable to Plaintiff in this action. Defendants contend that the facts will show that their conduct did not rise to the level of a constitutional violation or a tort. With respect to Plaintiff's Eighth Amendment Bivens claims, Defendants contend that Plaintiff cannot establish those claims and that they are not liable. Defendants contend that they did not impose cruel and unusual punishment, and that Plaintiff cannot meet either the objective or the subjective prongs of his claims. Defendants also continue 3
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to assert qualified immunity from these claims. Defendants also contend that, if Plaintiff prevails on his Federal Tort Claims Act claims, his Bivens claims will be barred by 28 U.S.C. § 2679(b)(1). With respect to Plaintiff's tort claims, Defendants submit that Plaintiff cannot establish the torts he has claimed, and that the conduct at issue was not wrongful under applicable state law. Defendants submit that the claims may be barred by the statute of limitations, or by Plaintiff's failure to timely file a certificate of review. Defendants further contend that Plaintiff's tort claim against the United States is subject to and limited by the Federal Tort Claims Act, and also by various provisions of Colorado law. These include (but are not limited to) the applicable provisions of Colorado's Health Care Availability Act, C.R.S. § 13-64-101, et seq., and the provisions of C.R.S. 13-21102.5, 13-21-111.5, 13-21-111.6, 13-21-111.7, and 13-21-111. With respect to damages, Defendants assert that Plaintiff is not entitled to the damages he seeks, that Defendants are entitled to a credit or set-off for any past or future benefits paid to or on behalf of or received by Plaintiff to the extent allowed under federal and state common and statutory law, and that Plaintiff's claims may be barred or limited in part by his own failure to mitigate his claimed damages. 4. UNDISPUTED FACTS The following facts are undisputed: 1. Plaintiff Yu Kikumura is a Japanese national, formerly incarcerated at ADX in Florence, Colorado as prisoner 09008-050, USP ADX.

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2.

On July 5, 2002, Defendant Anthony Osagie was employed at the ADX in Florence, Colorado.

3.

On July 5, 2002, Defendant Michael Vail was employed at the ADX in Florence, Colorado.

4.

On July 5, 2002, Defendant Keith Sanders was a Correctional Officer at ADX in Florence, Colorado. 5. COMPUTATION OF DAMAGES

Plaintiff's Damages: Plaintiff seeks an award of compensatory and punitive damages for any and all injuries that he suffered and for pain and suffering in amounts to be determined at trial. Because Plaintiff's counsel was only recently appointed and because the precise measure of damages will require medical and perhaps other expert analysis, Plaintiff is unable to state his damages with more specificity at this time. Defendants: Defendants are not seeking damages in this case. Defendants request that the Court set a date certain for disclosure pursuant to Rule 26(a)(1)(C). 6. REPORT OF PRECONFERENCE DISCOVERY AND MEETING UNDER FED. R. CIV. P. 26(f) a. b. Date of rule 26(f) meeting: March 21, 2008. Names of each participant and party he represented: Representing Plaintiff: Richard L. Gabriel, Esq. Holme Roberts & Owen LLP Representing Defendants: Kevin T. Traskos, Esq. U.S. Attorney's Office 5
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c. Proposed changes, if any, in timing or requirement of disclosures under Fed. R. Civ. P. 26(a)(1). Because Plaintiff previously proceeded pro se in the district court, disclosures pursuant to Rule 26(a)(1) were not previously required. See Fed. R. Civ. P. 26(a)(1)(B)(iv). Counsel for Plaintiff have recently appeared, and, thus, the parties must now make such disclosures. The parties have agreed that an answer will be filed on or before April 18, 2008 and that initial disclosures will be exchanged no later than May 2, 2008. d. Statement as to when rule 26(a)(1) disclosures were made or will be made.

As noted above, the parties have agreed that an answer will be filed on or before April 18, 2008 and that initial disclosures will be exchanged no later than May 2, 2008. e. Statement concerning any agreements to conduct informal discovery, including joint interviews with potential witnesses, exchanges of documents, and joint meetings with clients to discuss settlement. If there is agreement to conduct joint interviews with potential witnesses, list the names of such witnesses and a date and time for the interview which has been `agreed to by the witness, all counsel, and all pro se parties. The parties do not have any agreements with respect to informal discovery at this time. f. Statement as to whether the parties anticipate that their claims or defenses will involve extensive electronically stored information, or that a substantial amount of disclosure or discovery will involve information or records maintained in electronic form. In those cases, the parties must indicate what steps they have taken or will take to (i) preserve electronically stored information; (ii) facilitate discovery of electronically stored information;(iii) limit associated discovery costs and delay; and (iv) avoid discovery disputes relating to electronic discovery. Describe any agreements the parties have reached for asserting claims of privilege or of protection as trial- preparation materials after production of computer-generated records. Plaintiff has no electronically stored information. Defendants do not believe that the case will involve extensive electronically stored information, but will take steps to preserve such information. 7. CONSENT 6
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All parties have not consented to the exercise of jurisdiction of a magistrate judge. 8. CASE PLAN AND SCHEDULE a. b. c. d. Deadline for Joinder of Parties and Amendment of Pleadings: July 11, 2008. Discovery Cut-off: January 9, 2009 Dispositive Motion Deadline: February 9, 2009 Expert Witness Disclosure: (1) Anticipated fields of expert testimony, if any. (a) Plaintiff anticipates one or more medical experts, a possible expert regarding Federal Bureau of Prisons medical policies and procedures, and one or more experts on damages. (b) Defendant anticipates one or more medical experts, as well as experts in the fields designated by Plaintiff. (2) witnesses: None. State any limitations proposed on the use or number of expert

(3) The parties shall designate all experts and provide opposing counsel and any pro se party with all information specified in Fed. R. Civ. P. 26(a)(2) on or before October 1, 2008. (4) The parties shall designate all rebuttal experts and provide opposing counsel and any pro se party with all information specified in Fed. R. Civ. P. 26(a)(2) on or before November 21, 2008. (5) Notwithstanding the provisions of Fed. R. Civ. P. 26(a)(2)(B), no exception to the requirements of the rule will be allowed by stipulation of the parties unless the stipulation is approved by the court.

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e.

Deposition Schedule: Date of Deposition Time of Deposition 9 A.M. 9 A.M. 9 A.M. 9 A.M. 9 A.M. 9 A.M. Expected Length of Deposition 1 day 1 day 4 hours 4 hours 4 hours 1 day

Name of Deponent Yu Kikumura Anthony Osagie Officer Vail Officer Sanders Dr. Leyba 30(b)(6) or other representative of ADX t/b/d t/b/d/ t/b/d/ t/b/d/ t/b/d/ t/b/d/

The parties agree that the precise depositions to be taken are dependent on further discovery. Accordingly, the parties agree that the foregoing schedule is subject to change, as discovery progresses. f. Interrogatory Schedule:

Requests for production will be served no later than December 7, 2008. Each party's responses will be due as provided by Rule 33. g. Schedule for Request for Production of Documents:

Requests for production will be served no later than December 7, 2008. Each party's responses will be due as provided by Rule 34. h. depositions. The parties agree to follow the limits imposed by the Fed. R. Civ. P. 30(A)(2)(a). Discovery Limitations: (1) Any limits which any party wishes to propose on the number of

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(2) depositions.

Any limits which any party wishes to propose on the length of

The parties agree to follow the limits imposed by the Fed. R. Civ. P. 30(d)(2), although the parties reserve their rights under that rule to extend the length of any deposition by stipulation or by seeking a court order. (3) Modifications which any party proposes on the presumptive numbers of depositions or interrogatories contained in the federal rules. None. (4) Limitations which any party proposes on number of requests for production of documents and/or requests for admissions. The parties agree that neither side shall serve more than thirty requests for production of documents or fifty requests for admissions. (5) Other Planning or Discovery Orders.

The parties note that this case will present several highly unusual issues that will require more than the usual time for discovery, largely related to the fact that Plaintiff is now in Japan and not able to come to the United States. For example, arranging his deposition will be no simple matter. Obtaining his medical records may require a letter rogatory, and, as his recent records will likely be in Japanese, the parties will likely need the use of a Japanese medical translator. Also, Defendants are contemplating requesting a current medical examination of Plaintiff pursuant to Rule 35, but determining how to accomplish this with respect to a Japanese citizen who is unable to come to the United States is not likely to be easy. In addition to the foregoing, now that counsel for Plaintiff has been appointed, the parties agree that a Certificate of Review will be filed on or before June 3, 2008.

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9. SETTLEMENT The parties certify, as required by Fed. R. Civ. P. 26(f), that they have discussed the possibilities for a prompt settlement or resolution of the case by alternative dispute resolution. 10. OTHER SCHEDULING ISSUES a. A statement of those discovery or scheduling issues, if any, on which counsel, after a good-faith effort, were unable to reach an agreement. None, other than any noted above. b. Anticipated length of trial and whether trial is to the court or jury.

Plaintiff has requested a jury trial on all issues so triable. The parties presently anticipate a 5-day jury trial/bench trial (on the FTCA claims). 11. DATES FOR FURTHER CONFERENCES [The magistrate judge will complete this section at the scheduling conference if he or she has not already set deadlines by an order filed before the conference.] a. A settlement conference will be held on ______________________ at ______ o'clock __.m. It is hereby ordered that all settlement conferences that take place before the magistrate judge shall be confidential. ( ) ( ) Pro se parties and attorneys only need be present. Pro se parties, attorneys, and client representatives with authority to settle must be present. (NOTE: This requirement is not fulfilled by the presence of counsel. If an insurance company is involved, an adjustor authorized to enter into settlement must also be present.) Each party shall submit a Confidential Settlement Statement to the magistrate judge on ore before ______________ outlining the facts and issues, as well as the strengths and weaknesses of their case. Status conferences will be held in this case at the following dates and times:

( )

b.

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c. A final pretrial conference will be held in this case on ______________________ at ______ o'clock __.m. A Final Pretrial Order shall be prepared by the parties and submitted to the court no later than five days before the final pretrial conference. 12. OTHER MATTERS In addition to filing an appropriate notice with the clerk's office, counsel must file a copy of any notice of withdrawal, notice of substitution of counsel, or notice of change of counsel's address or telephone number with the clerk of the magistrate judge assigned to this case. Counsel will be expected to be familiar and to comply with the Pretrial and Trial Procedures established by the judicial officer presiding over the trial of this case. In addition to filing an appropriate notice with the clerk's office, a pro se party must file a copy of a notice of change of his or her address or telephone number with the clerk of the magistrate judge assigned to this case. With respect to discovery disputes, parties must comply with D.C.COLO.LCivR 7.1A. The parties filing motions for extension of time or continuances must comply with D.C.COLO.LCivR 6.1D. by submitting proof that a copy of the motion has been served upon the moving attorney's client, all attorneys of record, and all pro se parties. 13. AMENDMENTS TO SCHEDULING ORDER This scheduling order may be altered or amended only upon a showing of good cause. DATED this ______ day of _____________ 200__. BY THE COURT: _______________________ Kristin L. Mix United States Magistrate Judge

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APPROVED:

s/Richard L. Gabriel Richard L. Gabriel Amy Bauer Holme, Roberts & Owen, LLP 1700 Lincoln Street, Suite 4100 Denver, Colorado 80203-4541 Telephone: (303) 861-7000 Attorneys for Plaintiff

s/Kevin T. Traskos Kevin T. Traskos U.S. Attorney's Office 1225 17th Street, Suite #700 Denver, Colorado 80202 Telephone: (303) 454-0100 Attorneys for Defendants

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