Opinion
Civil No. 00-69-B-C
February 19, 2002
Robert M. Hayes, Esq., Eric UHL, Esq., Moon, Moss, McGill, Hayes Shapiro, P.A., Portland, ME, Helen M. Maher, Esq., Philippe Z. Selendy, Esq., Boies, Schiller Flexner, LLP, Armonk, NY, Mitchell S. Bernard, Esq., Nancy S. Marks, Esq., Corinne Schiff, Esq., Natural Resources Defense, New York, NY, for Plaintiffs.
Michael Kaplan, Preti, Flaherty, Beliveau, Pachios Haley, LLC, One City Center, Portland, ME, David P. Rosenblatt, Esq., Dennis J. Kelly, Esq., Paul R. Mastrocola, Esq., Burns Levinson, Boston, MA, Daniel A. Pileggi, Esq., Roy, Beardsley, Williams Granger, LLC, Ellsworth, ME, Steven J. Mogul, George Z. Singal, Gross, Minsky Mogul, P.A., Bangor, ME, J. Andrew Schlickman, Esq., Susan V. Harris, Esq., John M. Heyde, Esq., James G. Warchall, Esq., Sidley, Austin, Brown Wood, Chicago, IL, for Defendants.
REVISED REPORT OF FINAL PRETRIAL CONFERENCE AND ORDER
CAVEAT: READ THIS REPORT AND ORDER UPON RECEIPT . IT SPECIFIES THE COURT'S ORDERS AND REQUIREMENTS FOR FURTHER PRETRIAL DEVELOPMENT AND TRIAL OF THIS CASE. LACK OF KNOWLEDGE OF ITS CONTENTS CAN HAVE SERIOUS ADVERSE CONSEQUENCES TO LITIGANT'S POSITION AT TRIAL.
A final pretrial conference of the court and counsel was held on Monday, February 11, 2002, at 4 p.m The Report issued as a result thereof is hereby REVISED and shall control the management of all further proceedings herein covered by it.
Presiding: David M. Cohen, United States Magistrate Judge
Also in attendance was Patricia Duft, an attorney, in her representative capacity as vice-president for legal affairs and assistant secretary of Mallinckrodt.
The following proceedings were had:
Jurisdiction . Jurisdiction in this matter is based upon federal question jurisdiction, 28 U.S.C. § 1331. The pleadings are complete. The matter is in order for nonjury trial.
2. Discovery . A discovery cut-off date of April 30, 2001 has been previously established herein. Counsel advised the court at the conference that, except as noted in item E in paragraph 3 hereof, there are no outstanding discovery issues requiring action by the court.
3. Pending Motions . The only motions formally pending at the time of the conference were:
(a) Plaintiffs' Motion for Entry of Default Judgment Against HoltraChem Manufacturing Company, L.L.C., etc. (Docket No. 44): Under advisement.
(b) Defendant Mallinckrodt Inc.'s Motion For Leave To File Reply Brief In Support of Their Objections To Magistrate Judge Kravchuk's Recommended Decision On December 14, 2001, etc. (Docket No. 77): Under advisement.
(c) Defendant Mallinckrodt Inc.'s Motion for Protection From Trial And To Be Excused From Attending Trial (Docket No. 79): This motion will be taken under advisement as soon as all papers have been filed or the time permitted for doing so has expired.4. Estimated Trial Time . The Court INSTRUCTS counsel that the time available for trial of this case is three (3) weeks (fifteen (15) days) and that it will require counsel's best effort to complete the trial in that time.
5. Scheduling for Trial . This matter is scheduled for a date certain on March 4, 2002, before Judge Carter.
6. Identification of Witnesses . The court ORDERED that, on or before February 21, 2002, all counsel advise adverse counsel, in writing and with a copy to the Clerk, of the identity, by name, address and telephone number, of all witnesses to be called at trial, separately identifying those whom the party expects to present and those whom the party may call if the need arises.
7. Stipulations . The parties have agreed to all of the stipulations noted in their respective final pretrial memoranda.
The court encouraged counsel to stipulate to all those facts as to which there is no actual contest in an effort to expedite the trial of this matter. The court ORDERED that counsel reduce all stipulations to which agreement has been or can be obtained to a single written document, signed by all counsel, indicating agreement to the stipulations in a form satisfactory to permit the document to be marked as an exhibit and offered in evidence at trial. This document will be filed with the court on or before February 27, 2002.
8. Deposition Transcripts, Audiotape or Videotape Evidence . The court, in order to assure the expeditious and orderly progress of the trial without unwarranted consumption of time or unjustified delay, hereby ORDERS in respect to any depositions transcripts, audiotapes or videotapes to be offered in evidence at trial:
(a) That each party shall provide to all other parties by February 21, 2002 a designation of those witnesses whose 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;
(b) That any deposition transcripts, audiotapes or videotapes to be shown at trial be thoroughly and completely edited to excise therefrom all extraneous, unnecessary, redundant and irrelevant matter;
(c) That counsel meet and resolve all objections to admissibility of any portion of such deposition transcripts, audiotapes or videotapes or, failing consensual resolution thereof, cause any dispute to be presented to the court for resolution prior to the commencement of trial in conformity to hereinbelow;
(d) That all trial counsel meet on or before February 21, 2002, and review all deposition transcripts, audiotapes, and videotapes to be offered as evidence by any party at trial and agree upon editing of such deposition transcripts, audiotapes or videotapes to comply with (a) and (b) hereinabove; and
(e) That counsel shall present any outstanding issues as to editing of any such deposition transcripts, audiotapes and videotapes to the court on written motion, to be filed no later than February 25, 2002.
Counsel are hereby notified that failure to comply with the foregoing terms of this paragraph may result in the imposition of sanctions, including, but not limited to, the exclusion of evidence at trial, if such noncompliance is found by the court to have caused, or threaten to cause, undue delay of trial, unwarranted inconvenience to the court or prejudice to any party.
9. Settlement . The court and counsel discussed the present posture of this matter with respect to settlement by voluntary agreement. The court DIRECTED that counsel shall advise the court, on or before February 22, 2002, whether the case is settled or is firm for trial. Where the court orders the filing of in camera settlement statements of the parties, such statements shall be clearly labeled as such and shall be mailed or delivered directly to the presiding judge's chambers.
Counsel are hereby placed on NOTICE that, if at any time the court is satisfied that any counsel herein has failed to exhaust settlement negotiations as required by the court's order hereinabove and that such failure has caused needless trial proceedings, the court will assess as a sanction against such counsel and his/her client the jury costs associated with trial and such additional sanctions as the court shall find to be warranted.
Trial Procedures to be Applicable at Bench Trial
The court directs that in preparation for nonjury trial and in order to facilitate the orderly and expeditious course of trial proceedings, trial counsel shall achieve the following items of trial preparation by the deadlines specified.
1. All counsel shall meet no later than February 21, and shall premark and exchange among all counsel copies of all exhibits of a documentary — demonstrated exhibit nature to be utilized by either a witness or counsel at trial, and display to counsel exhibits of a physical nature, to be, offered in the course of trial. An original and two copies of all exhibits of a documentary nature, and demonstrative exhibits, shall be provided to the court, at trial, with the required triplicate filing of the consolidated exhibit list referred to in subparagraph (2) hereinbelow. In the event any party intends to offer business records pursuant to Fed.R.Evid. 902 (11) provisions for self authentication, such party must provide all other parties written notice of its intention to do so no later than three (3) days prior to the date upon which the parties meet to premark and exchange exhibits.
2. Counsel shall jointly prepare a consolidated and comprehensive list of all exhibits to be offered at trial. As to each listed exhibit, the list shall concisely describe it, identify it by identification marking, note the sponsoring party, and indicate whether the sponsoring party expects to offer it in evidence or may offer it if the need arises and whether objection is anticipated, and, if so, on what basis. An original and two copies of the consolidated exhibit list (without the exhibits) shall be provided to the court with the trial briefs.
3. Counsel for each party shall prepare a comprehensive witness list indicating the identity and address of each witness which that counsel proposes to call as a witness at trial or which counsel may call as a witness at trial, indicating therein whether the witness is an occurrence witness or an expert witness and stating concisely the general subject matter of the witness's testimony and the estimated time required for the testimony of the witness on direct examination. An original and two copies of the said witness list shall be provided to the court with the trial briefs.
4. All counsel shall make arrangements to schedule the attendance of witnesses at trial so that the case can proceed with all due expedition and without any unnecessary delay.
5. Counsel for each party shall prepare a trial brief for the use and guidance of the court which shall set forth concisely the significant evidence to be adduced at trial, concisely state all significant factual and legal issues anticipated to be raised in the course of trial; set forth in a concise manner counsel's position on each so identified. No trial brief shall exceed fifteen (15) pages without the prior express consent of the court. All trial briefs and related documents will be submitted in duplicate to the court no later than February 27, 2002.
6. Counsel shall prepare and submit to the court proposed Findings of Fact and Conclusions of Law by a date to be specified by the court at the conclusion of the taking of evidence.
7. Any objection filed by a party in response to any submission made pursuant hereto by any other party shall be styled by the filing party as a motion and will be treated as such for all purposes, including Local Rule 7.
The court advise counsel that for unjustified failure to comply with the foregoing requirements, the court may, by imposition of sanctions, refuse to admit exhibits or testimony of witnesses or impose other appropriate sanctions where noncompliance is found by the court to have caused undue delay or prejudice.
CERTIFICATE
(A) This report fairly reflects the matters processed in the Final Pretrial Conference to Which it refers and shall control the subsequent course of the action.
(B) The Clerk shall submit forthwith copies of this Final Pretrial Conference Report to counsel in this case.
(C) Counsel shall submit any objections to this Final Pretrial Conference Report to the Clerk of this Court within five (5) days from the date of docketing hereof.