United States District Court, E.D. California
PRETRIAL CONFERENCE ORDER
A. MENDEZ, UNITED STATES DISTRICT JUDGE
to court order, a Pretrial Conference was held on August 23,
2019 before Judge John Mendez. Roger A. Dreyer and Anthony J.
Garilli appeared as counsel for plaintiffs; Amee Mikacich,
Pamela L. Schultz and Alena Eckhardt appeared as counsel for
defendant L M Sports, Inc. After hearing, the Court makes the
following findings and orders:
is predicated upon 28 U.S.C. §§ 1332 & 1333,
and has previously been found to be proper by order of this
court, as has venue. Those orders are confirmed.
has demanded a jury trial.
STATEMENT TO BE READ TO JURY
least seven days prior to trial, each party may E-file a
statement of the case that the Court may use in preparing the
statement to be read to the jury at the beginning of jury
DISPUTED FACTUAL ISSUES
Defendant disputes all facts related to Plaintiff's past
and future medical care, as well as Plaintiff's past and
future non-economic damages.
L M Sports:
1. The amount of Plaintiff's damages, including whether
Plaintiff has demonstrated the reasonableness and necessity
of past and future medical expenses.
2. The extent to which Plaintiff can recover psychological
and emotional damages and treatment.
3. Whether Plaintiff's work life reduction/work schedule
reduction is recoverable and to what extent.
DISPUTED EVIDENTIARY ISSUES
Plaintiff challenges the foundation and methodology of
Defendant's experts on prosthetics and present value of
the costs of Plaintiff's future care. Plaintiff will
challenge these experts at trial during their testimony.
M Sports: L M Sports asserts that the following
evidentiary issues may be raised by formal motion and/or by
request for a Federal Rule of Evidence 104 hearing outside
the presence of the jury:
Plaintiff should be precluded from proffering testimony from
non-retained (and purported) experts (including
Plaintiff's mother), which non-retained experts were not
previously disclosed, were not designated in accordance with
inter alia, the Federal Rules of Civil Procedure, Federal
Rules of Evidence or orders of this Court and/or are not
qualified on the topics on which L M Sports anticipate they
will testify. Further, even if Plaintiff's non-retained
purported experts are permitted to testify, Plaintiff (as
well as any other party to a federal court litigation) is
precluded from introducing testimony except as to treatment
rendered, and therefore, cannot testify as to future medical
Plaintiff should be precluded from introducing evidence or
testimony relating to issues raised in the March 5, 2019
report of her rehabilitation expert, Dr. Stephenson, which
report was provided to L M Sports for the first time on
August 6, 2019. The Court ordered Plaintiff to make Dr.
Stephenson available for a deposition at a date and time
convenient to L M Sports prior to the trial date. Plaintiff
shall reimburse L M Sports for the cost of this deposition,
including attorneys' fees.
Testimony from Plaintiff's experts or any other witness
that Plaintiff will suffer future fractures, including those
to her upper extremities and the contralateral leg or need
for ORIF (Open Reduction Internal Fixation) is speculative,
without foundation (including whether they are unqualified to
so testify) and contrary to the most recent medical evidence.
Plaintiff's rehabilitation expert, Dr. Stephenson is not
qualified to diagnose Plaintiff with post-traumatic stress
disorder and depression; Dr. Stephenson's opinion
regarding Plaintiff's future life care plan is
speculative and without foundation; Dr. Stephenson is not
qualified to testify as to the reasonableness and necessity
of past medical care provided to Plaintiff, that Dr.
Stephenson's opinion regarding reduced work life
expectancy and reduced work schedule is speculative and
lacking in foundation. Dr. Stephenson's opinions or other
testimony relating to PRP (Platelet-Rich Plasma Therapy) are
speculative and not commonly accepted and cannot be
5. L M
Sports asserts that Plaintiff's expert, Carol
Hyland's opinion regarding Plaintiff's future medical
expenses is speculative, lacks foundation and is
inadmissible, including whether Plaintiff can introduce
evidence of future medical expenses at uninsured rates, since
those rates do not reflect the reasonable market rate for
expenses and Plaintiff is not expected to incur those
expenses. Without any distinction between the amount charged
and billed and the amount accepted as payment in full from
the insurer, the opinions on future medical care costs in
Plaintiff's life care plan are unreliable. Furthermore,
because Plaintiff's economist in turn offers opinions on
the total present value based on the future medical expenses
at uninsured rates, those opinions are based upon the life
care planner flawed analysis and thus should be excluded.
Plaintiff may not offer testimony regarding her purported
PTSD, depression and need for therapy, counseling or similar
sessions given, inter alia, the lack of competence of lay
witnesses to testify on these facts, Plaintiff's failure
to disclose these sessions in discovery despite being
requested to do so and Plaintiff's sporadic need for
Plaintiff's economist Robert Johnson was not disclosed
and is not qualified to testify as a financial
planner/investment advisor and therefore, cannot testify as
to what investments Plaintiff must or should make. Mr.
Johnson also cannot rebut any opinions of L M Sports'
economist because at his deposition Mr. Johnson testified
that he did not have the information he needed to rebut her
opinion. Further, Mr. Johnson cannot testify as to the
alleged appropriateness of the life care plan.
Whether Plaintiff has admissible evidence to support her
claims for past medical expenses, including but not limited
to whether those expenses are reasonable and necessary. Ninth
Circuit Model Jury Instruction 7.1; Sanchez v. U.S.,
803 F.Supp.2d 1066 (CD. Cal. 2011); Corenbaum v.
Lampkin, 215 Cal.App.4th 1308 (2013); Neiberger v.
FedEx Ground Package Sys., Inc., 566 F.3d 1184, 1193
(10th Cir. 2009); Collins v. D.J. Kibort, 143 F.3d
331, 337-39 (7th Cir. 1998); Bulthuis v. Rexall
Corp., 789 F.2d 1315, 1316 (9th Cir. 1985).
Whether Plaintiff can offer evidence of certain damages based
on her failure to properly disclose those damages as required
by the Federal Rules of Civil Procedure and other lack of
Plaintiff Manisha Palla seeks her past and future economic
and non-economic damages.
M Sports: Not applicable
POINTS OF LAW
briefs may be E-filed with the court no later than September
16, 2019. Any points of law not previously argued to the
Court should be briefed in the trial briefs.
parties are not aware of any abandoned issues in this case.
witness list is attached to this Pretrial Conference Order as
Sports' witness list is attached to this Pretrial
Conference Order as Exhibit B.
party may call a witness designated by the other.
other witnesses will be permitted to testify unless:
(1) The party offering the witness demonstrates that the
witness is for the purpose of rebutting evidence which could
not be reasonably anticipated at the Pretrial Conference, or
(2) The witness was discovered after the Pretrial Conference
and the proffering party makes the showing required in
the post-Pretrial discovery of witnesses, the attorney shall
promptly inform the court and opposing parties of the
existence of the unlisted witnesses so that the court may
consider at trial whether the witnesses shall be permitted to
testify. The evidence will not be permitted unless:
(1) The witnesses could not reasonably have been discovered
prior to Pretrial;
(2) The court and opposing counsel were promptly notified
upon discovery ...