Althouse v. Union Pacific Railroad Company, No. 3:2019cv00551 - Document 65 (D. Nev. 2022)

Court Description: ORDER granting ECF No. 64 Joint Pretrial Order. This case is set for Court jury trial on the stacked calendar on Monday, April 3, 2023 at 8:30 A.M. Calendar call will be held on Thursday, March 23, 2023 at 1:30 P.M. This matter is referred to U.S. Magistrate Judge Craig S. Denney for a settlement conference. Signed by Judge Larry R. Hicks on 8/16/2022. (Copies have been distributed pursuant to the NEF - HKL)

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Althouse v. Union Pacific Railroad Company Doc. 65 Case 3:19-cv-00551-LRH-CSD Document 65 Filed 08/16/22 Page 1 of 40 1 IN THE UNITED STATES DISTRICT COURT 2 FOR THE DISTRICT OF NEVADA 3 SOUTHERN DIVISION 4 5 CHRISTOPHER ALTHOUSE, Plaintiff, 6 7 vs. 8 UNION PACIFIC RAILROAD COMPANY, a Delaware corporation, 9 10 11 Defendant. ________________________________________ 12 13 14 15 ) ) ) ) ) ) ) ) ) ) ) Case No.: 3:19-cv-00551-LRH-WGC JOINT PRETRIAL ORDER I. This is a civil action for personal injuries incurred while Plaintiff CHRISTOPHER ALTHOUSE was acting within the course and scope of his employment as a truck driver with Defendant UNION PACIFIC 16 RAILROAD COMPANY wherein Plaintiff seeks damages for 1) past and future medical costs; 2) past 17 and future lost wages and benefits; 3) lost earning capacity; 4) past and future loss of enjoyment of life; 18 5) past and future pain and suffering; and 6) past and future mental anguish. 19 20 21 22 23 24 25 26 27 Plaintiff contends Defendant: 1. Failed in its duty to provide reasonably safe tools and equipment. 2. Failed in its duty to warn employees of unsafe working conditions. 3. Failed in its duty to warn employees of any unusual risks or dangers or unexpected hazards or departures from the general customs and practices of the railroad. 4. Failed in its duty to inspect and maintain its property to ensure it is free of hazards. 5. Failed in its duty to use reasonable care to provide a safe place to work. 6. Failed in its duty to promulgate and enforce safety rules and safe policies and procedures. 7. Failed in its duty to provide sufficient help to perform the assigned tasks. 8. Failed in its duty to comply with Defendants’ own safety rules, policies and procedures as relates to the tasks workers are instructed to perform. 9. Failed to ensure workers are safe from harmful acts of others. 28 -2JOINT PRETRIAL ORDER Dockets.Justia.com Case 3:19-cv-00551-LRH-CSD Document 65 Filed 08/16/22 Page 2 of 40 1 2 3 4 5 6 7 10. Failed in its duty to investigate, implement and institute reasonably safe methods and procedures for the inspection, maintenance, correction and repair of work sites and equipment, as well as other duties the breach of which may be revealed by discovery. Defendant contends: 1. 2. 3. 4. 5. Defendant was not negligent as alleged by Plaintiff. Defendant could not reasonably foresee the happening of the subject accident. Plaintiff was negligent. Some of Plaintiff’s injuries are the result of pre-existing and/or chronic conditions. Plaintiff failed to reasonably mitigate his damages. 8 9 10 II. Statement of jurisdiction: The incident giving rise to this lawsuit occurred in the County of Lyon, State 11 of Nevada. At all relevant times, Defendant was and now is a duly-organized and existing corporation 12 doing business in the State of Nevada. At all relevant times, Defendant was and now is a common carrier 13 by railroad in the County of Lyon, State of Nevada, and engaged in interstate commerce within the 14 15 16 17 meaning of Federal Employers’ Liability Act (“FELA”). Plaintiff brings this action against Defendant under the provisions of 45 U.S.C. §§51 to 60, et seq., of the FELA. Under the terms of the FELA, this Court has jurisdiction pursuant to 45 U.S.C. §56. (concurrent jurisdiction). III. 18 19 20 21 22 23 24 25 26 27 28 The following facts are admitted by the parties and require no proof: 1. Defendant is a Delaware corporation authorized to do business in the State of Nevada. 2. Plaintiff is an individual residing in Fernley, Nevada. 3. At all relevant times, Plaintiff was employed by Defendant. 4. At all relevant times, Defendant is and was a common carrier by railroad in the County of Lyon, State of Nevada, and other counties and states. 5. At all relevant times, Defendant is and was engaged in interstate commerce within the meaning of FELA. -3JOINT PRETRIAL ORDER Case 3:19-cv-00551-LRH-CSD Document 65 Filed 08/16/22 Page 3 of 40 1 6. The herein Court has jurisdiction. 2 7. Venue is proper in this Court. 3 8. Plaintiff was employed as a truck driver by Defendant on December 13, 2018. 4 5 6 7 8 9 10 11 12 13 IV. The following facts, though not admitted, will not be contested at trial by evidence to the contrary: 1. The incident giving rise to this lawsuit occurred in the County of Lyon, State of Nevada. 2. At all relevant times, Plaintiff’s job duties were in furtherance of and/or directly or closely or substantially affected said interstate commerce within the meaning of FELA. 3. At all relevant times, Plaintiff was acting within the course and scope of his employment with Defendant. 4. On or about December 13, 2018, at Fernley, Nevada, between milepost 273 and 274 on the 14 mainline, Plaintiff was employed as a truck driver by Defendant and was being utilized as a 15 hydraulic saw operator cutting mainline rail in order to repair rail defects, which involved among 16 other things cutting out old rail and replacing it with new rail. Work truck #59720 was parked on 17 18 the access road. V. 19 20 21 22 23 24 25 26 The following facts are the issues of fact to be tried and determined at trial: 1. At the time of the incident, was Plaintiff’s back toward work truck #59720 in order to perform the assigned work? 2. At the time of the incident, did Defendant’s employee, foreman A.J. McCoy (“McCoy”), fail to check the valves on the welding hoses on the left side of the truck in the closed cabinet when he went to the right side of work truck #59720 to turn on the tanks that were to be used for welding? 27 28 -4JOINT PRETRIAL ORDER Case 3:19-cv-00551-LRH-CSD Document 65 Filed 08/16/22 Page 4 of 40 1 2 3 4 5 6 7 3. At the time of the incident, did foreman McCoy either fail to perform a “torch test” or fail to ensure a “torch test” was performed prior to operation of the welding torch? 4. At the time of the incident, did Defendant direct Plaintiff to utilize a hydraulic saw operator cutting mainline rail in order to repair rail defects? 5. At the time of the incident, did sparks from the hydraulic saw ignite the cabinet on the left side of work truck #59720 that was filled with gas to cause an explosion that blew the doors off the truck? 8 6. Did the force of the explosion cause the doors of work truck #59720 to land 60 feet away up the 9 hill, break the saw and blow Plaintiff up and backward where he slammed down onto and between 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 the rails covered in hydraulic fluid? 7. Did Plaintiff fail to utilize a spark shield prior to using the hydraulic saw to cut rail? 8. Did Plaintiff sustain or have aggravated the following injuries? • Right arm, two broken bones; • Severe pain and swelling in right arm; • Puncture wounds on right wrist; • Lower back injury with sciatic pain; • Severe back bruising; • Bilateral rib injury; • Right knee injury and pain; • Severe right leg pain, numbness, bruising and swelling; • Severe bruising and pain to entire right side of body; • Numbness in fingers and right hand; • Injury to right thumb; • Headaches; • Constant ringing in the ears; • Insomnia; • Post-traumatic stress; • Nightmares; • Confusion; • Dizziness; and • Emotional distress, among other issues. 9. Did all of the foregoing necessitate Plaintiff receive ongoing medical treatment and physical therapy? -5JOINT PRETRIAL ORDER Case 3:19-cv-00551-LRH-CSD Document 65 Filed 08/16/22 Page 5 of 40 1 10. Have Plaintiff’s life activities been limited as a result of the injuries sustained in the incident 2 (including fishing; shooting; limitations on his right side, including his dominant right hand; 3 walking; sitting; standing; showering; and sleeping)? 4 11. Did Plaintiff suffer from preexisting conditions and/or injuries to his back, neck, hip and mental 5 6 7 health prior to the subject incident? 12. Did Plaintiff fail to mitigate his damages by failing to seek medical treatment and/or follow 8 medical advice, by abusing prescription drug medication, by failing to cooperate with UPRR’s 9 policies and procedures and unnecessarily incurring medical expenses, and by failing to 10 participate in vocational rehabilitation and return to gainful employment. 11 12 13 VI. The following are the issues of law to be tried and determined at trial: 14 The parties do not agree on what the contested issues of law are in the case. 15 Plaintiff submits that the contested issues of law are: 16 1. 17 18 19 20 21 2. 3. Did Union Pacific fail to use reasonable care under the circumstances to provide its employees with a reasonably safe place to work and with reasonably safe and suitable tools, machinery, and appliances? Could Union Pacific have reasonably foreseen that the particular condition could cause injury? Was Union Pacific’s negligence a cause, no matter how small, of Althouse’s harm? Defendant submits that the contested issues of law are: 1. Could UPRR have reasonably foreseen the happening of the subject accident in the absence of evidence of prior incidents? (Sears v. Southern Pacific Co. (9th Circuit 1963) 313 F.2d 498; Holbrook v. Norfolk Southern Railway Co. (7th Cir. 2005) 414 F.3d 739 (The railroad must have actual or constructive notice of the alleged dangerous condition); Perry v. Morgan Guaranty Trust Co. of New York (5th Cir. 1976) 528 F.2d 1378 (Jones Act case) (Absent evidence that in the exercise of reasonable care the employer had either the time or the opportunity to acquire knowledge of, or to correct, the dangerous condition, plaintiff cannot show negligence).) 2. Is UPRR entitled to an apportionment instruction consistent with Sauer v. Burlington Northern R.R., 106 F.3d 1490 (10th Cir. 1996)? 22 23 24 25 26 27 28 -6JOINT PRETRIAL ORDER Case 3:19-cv-00551-LRH-CSD Document 65 Filed 08/16/22 Page 6 of 40 1 Is Plaintiff’s failure to provide medical progress reports and submit medical expenses to UPRR a failure to mitigate his damages under the FELA? 3. 2 3 4 5 6 7 8 9 10 11 12 VII. (a) The following exhibits are stipulated into evidence in this case and may be so marked by the clerk: Stipulated Exhibit No. 1 5 6 8 7 22 53 13 103 104 14 126 15 16 17 18 19 20 21 22 23 24 25 Stipulated Exhibit Description Report of Personal Injury or Occupational Illness Plaintiff’s W-2s Plaintiff’s Photographs of Incident Scene Pictures of the Incident Scene marked as Exhibit 3 to Deposition of Plaintiff Christopher Althouse Plaintiff’s Photographs of Plaintiff’s Injuries Union Pacific Rule 79.7, “Torch Test” PowerPoint of Imaging Studies (Exhibit 5 to Dr. Garber’s Deposition) UPRR Photographs (UP Althouse 436-466) Oxy-Fuel Equipment Inspection Form (UP Althouse 467) Medical Illustration of Arm, Wrist, and Hand (Exhibit 3 to Walker Deposition) Party Offering Plaintiff and Defendant Plaintiff and Defendant Plaintiff Plaintiff Plaintiff Plaintiff and Defendant Plaintiff and Defendant Defendant Defendant Defendant (b) As to the following exhibits, the party against whom the same will be offered objects to their admission on the grounds stated: In addition to the below, Plaintiff incorporates Defendant’s exhibits to which objection has not been made and reserves the right to add additional exhibits. Exhibit No. 1 2 Exhibit Description Party Offering Report of Personal Injury or Occupational Illness Correspondence from Client with Railroad Retirement Board requesting Dr. Rogina’s report. Plaintiff Plaintiff 26 27 28 -7JOINT PRETRIAL ORDER Non-Offering Party Objection(s) Stipulated Relevance. Authentication. Hearsay. FRE 401, 403, 801, 901. Case 3:19-cv-00551-LRH-CSD Document 65 Filed 08/16/22 Page 7 of 40 3 Plaintiff’s Union Pacific Disability Documentation Plaintiff 4 Plaintiff’s Out-of-Pocket Expense Receipts Plaintiff 8 5 6 Plaintiff Plaintiff Stipulated Stipulated 9 7 Plaintiff’s W-2s Plaintiff’s Photographs of Incident Scene Plaintiff’s Photographs of Plaintiff’s Injuries Pictures of the Incident Scene marked as Exhibit 3 to Deposition of Plaintiff Christopher Althouse Railroad Employee Injury and/or Illness Record marked as Exhibit 5 to Plaintiff’s Deposition) UP Althouse 002214-00215) Plaintiff Stipulated Plaintiff Stipulated Plaintiff 10 Diagram of Incident marked as Exhibit 6 to Plaintiff’s Deposition Plaintiff Inadmissible pursuant to 49 U.S.C. section 20903, 49 C.F.R. section 225.7(b) Relevance. Authentication. Hearsay. FRE 401, 403, 801, 901. 11 Medical and billing records North Lyon County Fire Dept., 195 E. Main Street, Fernley, NV 89508 Obtained by Macropro (16 pages) Medical and billing records from Reno Orthopaedic Clinic, Justin Walker, M.D., 555 N. Arlington Avenue, Reno, NV 89503 Plaintiff Relevance. Authentication. Hearsay. FRE 401, 403, 801, 901. Plaintiff Relevance. Authentication. Hearsay. FRE 401, 403, 801, 901. Medical and billing records from Renown Regional Medical Center, 1155 Mill Street, Reno, NV 89502-1576 Plaintiff Relevance. Authentication. Hearsay. FRE 401, 403, 801, 901. 1 2 3 4 5 6 7 10 11 8 12 13 9 14 15 16 17 18 19 20 21 22 12 23 24 25 26 27 13 28 -8JOINT PRETRIAL ORDER Relevance. Authentication. Hearsay. FRE 401, 403, 801, 901. Relevance. Authentication. Hearsay. FRE 401, 403, 801, 901. Failure to disclose. FRCP 26. Case 3:19-cv-00551-LRH-CSD Document 65 Filed 08/16/22 Page 8 of 40 1 14 Medical and billing records from Renown Regional Medical Center, Emergency Physicians Plaintiff 15 Medical and billing records Reno Diagnostic Centers, 590 Eureka Avenue, Reno, NV 89512 Medical and billing records Nevada Pain and Spine Specialists, 605 Sierra Rose Drive, Suite 4 Reno, NV 89511 Medical and billing records Reno Orthopedic Surgery Center, 350 W. 6th Street, 3rd Floor, Reno, NV 89503 Medical and billing records Nevada Orthopedic Anesthesia Associates Plaintiff 19 Pharmacy and billing records from Wal-Mart Pharmacy, 2425 E. 2nd Street, Reno, NV 89502 Plaintiff 20 Pharmacy and billing from Olsen Pharmacy, UP Althouse 005269-005270) Plaintiff 21 Medical and billing records from Lacy Fettic, M.D., University of Nevada, Reno, School of Medicine, Family Medicine Center – Reno, 123 17 St Ste 316 Reno, NV 89502 Medical and billing records from Concentra Medical Center, 255 Glendale Avenue, Suite 12, Sparks, NV 89431 Report of Justin Walker, M.D., Reno Orthopaedic Clinic Plaintiff 2 3 4 5 6 16 7 8 9 17 10 11 18 12 13 14 15 16 17 18 19 20 21 22 22 23 24 25 23 Plaintiff Plaintiff Plaintiff Plaintiff Plaintiff 26 27 28 -9JOINT PRETRIAL ORDER Relevance. Authentication. Hearsay. FRE 401, 403, 801, 901. Relevance. Authentication. Hearsay. FRE 401, 403, 801, 901. Relevance. Authentication. Hearsay. FRE 401, 403, 801, 901. Relevance. Authentication. Hearsay. FRE 401, 403, 801, 901. Relevance. Authentication. Hearsay. FRE 401, 403, 801, 901. Relevance. Authentication. Hearsay. FRE 401, 403, 801, 901. Relevance. Authentication. Hearsay. FRE 401, 403, 801, 901. Relevance. Authentication. Hearsay. FRE 401, 403, 801, 901. Relevance. Authentication. Hearsay. FRE 401, 403, 801, 901. Relevance. Authentication. Hearsay. FRE 401, 403, 801, 901. Case 3:19-cv-00551-LRH-CSD Document 65 Filed 08/16/22 Page 9 of 40 1 24 Imaging from Reno Diagnostic Centers Plaintiff 25 Imaging from Reno Orthopaedic Clinic Plaintiff 26 Imaging from Renown Regional Medical Center Plaintiff 27 MRI Imaging of the Thoracic Spine without Contrast taken August 21, 2021, at Pueblo Imaging Plaintiff 28 Report of MRI of Thoracic Spine without Contrast taken August 12, 2021 at Pueblo Imaging Withdrawn Billing from Pueblo Imaging including but not limited to MRIs taken Plaintiff 31 Letter from RRB enclosing Report of Julius M. Rogina, Ph.D., Psychological Evaluation Plaintiff 32 Insurance Records from United Healthcare Plaintiff 33 Lien from RRB Plaintiff 2 3 4 5 6 7 8 9 10 11 12 13 14 15 29 30 16 Plaintiff Plaintiff 17 18 19 20 21 22 23 24 25 26 27 28 -10JOINT PRETRIAL ORDER Relevance. Authentication. Hearsay. FRE 401, 403, 801, 901. Relevance. Authentication. Hearsay. FRE 401, 403, 801, 901. Relevance. Authentication. Hearsay. FRE 401, 403, 801, 901. Relevance. Authentication. Hearsay. FRE 401, 403, 801, 901. Failure to disclose in discovery. FRCP 26, 37. Relevance. Authentication. Hearsay. FRE 401, 403, 801, 901. Relevance. Authentication. Hearsay. FRE 401, 403, 801, 901. Failure to disclose in discovery. FRCP 26, 37. Relevance. Authentication. Hearsay. Lacks foundation. Improper Expert Opinion. FRE 401, 403, 701, 801, 901. Relevance. Authentication. Hearsay. FRE 401, 403, 801, 901. Relevant only posttrial; Relevance. Authentication. Case 3:19-cv-00551-LRH-CSD Document 65 Filed 08/16/22 Page 10 of 40 34 Lien from Hartford Plaintiff 35 Lien from Optum Plaintiff 36 Railroad Retirement Board Records (UP Althouse 0037410003801) Plaintiff 37 Union Pacific Rule 79.7, “Torch Test” Transcript of Recorded Interview of Aaron “A.J.” McCoy (UP Althouse 000702713) Transcript of Recorded Interview of Josh Cornett (UP Althouse 000702-713) CV of Mark Burns, BSME, JD, GC, CBI, CXLT, CPSI Expert Report of Mark Burns, BSME, JD, GC, CBI, CXLT, CPSI Plaintiff Hearsay. FRE 401, 403, 801, 901. Relevant only posttrial; Relevance. Authentication. Hearsay. FRE 401, 403, 801, 901. Relevant only posttrial; Relevance. Authentication. Hearsay. FRE 401, 403, 801, 901. Relevance. Authentication. Hearsay. FRE 401, 403, 801, 901. Stipulated Plaintiff Hearsay. FRE 801. Plaintiff Hearsay. FRE 801. Plaintiff 42 CV of Paul Broadus, MA Plaintiff 43 Expert Report of Paul Broadus, M.A. Plaintiff Demonstrative only. Hearsay. FRE 801. Relevance. Authentication. Hearsay. Lacks foundation. Improper Expert Opinion. FRE 401, 403, 701, 801, 901. Demonstrative only. Hearsay. FRE 801. Relevance. Authentication. Hearsay. Lacks foundation. Improper Expert Opinion. FRE 401, 403, 701, 801, 901. 1 2 3 4 5 6 7 8 9 10 11 12 38 13 14 39 15 16 17 40 41 18 Plaintiff 19 20 21 22 23 24 25 26 27 28 -11JOINT PRETRIAL ORDER Case 3:19-cv-00551-LRH-CSD Document 65 Filed 08/16/22 Page 11 of 40 1 44 CV of Colby Young, M.D., M.B.A. Plaintiff Demonstrative only. Hearsay. FRE 801. 45 Expert Report of Colby Young, M.D., M.B.A. Plaintiff 46 Medical Illustrations of the Arm, Wrist and Hand Plaintiff 47 Anatomical Illustrations of the Arm, Wrist and Hand Plaintiff 48 Medical Illustration of Arm, Wrist, and Hand (Exhibit 3 to Walker Deposition) Expert Report of Jason Garber, M.D. Plaintiff Relevance. Authentication. Hearsay. Lacks foundation. Improper Expert Opinion. FRE 401, 403, 701, 801, 901. Demonstrative only. Hearsay. FRE 801. Not produced so Defendants reserves the right to make other objections at trial. Demonstrative only. Hearsay. FRE 801. Not produced so Defendants reserves the right to make other objections at trial. Stipulate Expert File of Jason Garber, M.D. Produced as Report Viewer Plaintiff 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 49 Plaintiff 19 20 21 22 23 50 24 25 26 27 28 -12JOINT PRETRIAL ORDER Relevance. Authentication. Hearsay. Lacks foundation. Improper Expert Opinion. FRE 401, 403, 701, 801, 901. Relevance. Authentication. Hearsay. Lacks foundation. Improper Expert Opinion. FRE 401, 403, 701, 801, 901. Case 3:19-cv-00551-LRH-CSD Document 65 Filed 08/16/22 Page 12 of 40 1 51 Medical Illustrations of the Lumbar Spine Plaintiff 52 Anatomical Illustrations of the Lumbar Spine Plaintiff 53 PowerPoint of Imaging Studies (Exhibit 5 to Dr. Garber’s Deposition) Plaintiff’s Response to Interrogatories, Set One Plaintiff’s Response to Request for Production, Set One Plaintiff’s Response to Request for Production, Set Two Plaintiff’s Response to Request for Production, Set Three Plaintiff’s Response to Request for Production, Set Four Plaintiff Reserves Plaintiff 2 3 4 5 6 7 8 9 10 11 54 12 55 13 14 15 16 17 56 57 58 59-99 Plaintiff Plaintiff Plaintiff Plaintiff Plaintiff Plaintiff Demonstrative only. Hearsay. FRE 801. Not produced so Defendants reserves the right to make other objections at trial. Demonstrative only. Hearsay. FRE 801. Not produced so Defendants reserves the right to make other objections at trial. Stipulate Relevance. Hearsay. FRE 801. Relevance. Hearsay. FRE 401, 801. Relevance. Hearsay. FRE 401, 801. Relevance. Hearsay. FRE 401, 801. Relevance. Hearsay. FRE 401, 801. 18 19 20 100 Althouse HR Report (UP Althouse 364-390) Defendant Relevance. Authentication. Hearsay. FRE 401, 403, 801, 901. 101 Althouse Human Factors Report (UP Althouse 1-16) Defendant 102 Efficiency Test Report (UP Althouse 17) Defendant Relevance. Authentication. Hearsay. FRE 401, 403, 801, 901. Relevance. Authentication. Hearsay. FRE 401, 403, 801, 901. 21 22 23 24 25 26 27 28 -13JOINT PRETRIAL ORDER Case 3:19-cv-00551-LRH-CSD Document 65 Filed 08/16/22 Page 13 of 40 1 103 UPRR Photographs (UP Althouse 436-466) Oxy-Fuel Equipment Inspection Form (UP Althouse 467) Oxy-Fuel Safety Alert (UP Althouse 468) Defendant Stipulate Defendant Stipulate Defendant 106 UPRR General Code of Operating Rules, effective 1/6/18 (UP Althouse 1020-1260) Defendant 107 UPRR Safety Rules, effective 9/19/18 (UP Althouse 12611475) Defendant 108 UPRR Track Welding Rules and Procedures (UP Althouse 7871019) Defendant Relevance. Authentication. Hearsay. FRE 401, 403, 801, 901. Relevance. Authentication. Hearsay. FRE 401, 403, 801, 901. Relevance. Authentication. Hearsay. FRE 401, 403, 801, 901. Relevance. Authentication. Hearsay. FRE 401, 403, 801, 901. 2 104 3 105 4 5 6 7 8 9 10 11 12 13 14 109 UPRR Fire Prevention Plan (UP Althouse 715-752) Defendant 110 Althouse Medical Comments (UP Althouse 776-781) Defendant 111 Althouse EAP File (UP Althouse 4596-4538) Defendant 112 Althouse Diagram (Exhibit 6 to Althouse Deposition) Defendant 113 June 20, 2020 Letter from UPRR Workforce Resources to Althouse (Exhibit 11 to Althouse Deposition) Defendant 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -14JOINT PRETRIAL ORDER . Relevance. Authentication. Hearsay. FRE 401, 403, 801, 901. Relevance. Authentication. Hearsay. FRE 401, 403, 801, 901. Relevance. Authentication. Hearsay. FRE 401, 403, 801, 901. Relevance. Authentication. Hearsay. FRE 401, 403, 801, 901. Relevance. Authentication. Hearsay. FRE 401, 403, 801, 901. Case 3:19-cv-00551-LRH-CSD Document 65 Filed 08/16/22 Page 14 of 40 1 114 May 30, 2019 Medical Examination Questionnaire (Exhibit 12 to Althouse Deposition) Defendant 115 Chronological Pre-Incident Pain Questionnaires and Diagrams from Nevada Pain & Spine (Exhibit 13 to Althouse Deposition) Chronological Post-Incident Pain Questionnaires and Diagrams from Nevada Pain & Spine (Exhibit 14 to Althouse Deposition) Nevada Pain & Spine Encounters (Exhibit 2 to Berman Deposition) Medical Records for Christopher Althouse in Chronological Order (Various subpoenaed records) Defendant Walmart Pharmacy Records (UP Althouse 4070-4071) List of Medical Expenses paid by UPRR and/or UPRR Provided Healthcare Plan Defendant Imaging Studies of Althouse’s Right Forearm Imaging Studies of Althouse’s Lumbar Spine Imaging Studies of Althouse’s Cervical Spine Imaging Studies of Althouse’s Right Hip PowerPoint of Imaging Studies (Exhibit 5 to Dr. Garber’s Deposition) Medical Illustration of Arm, Wrist, and Hand (Exhibit 3 to Walker Deposition) Defendant 2 3 4 5 6 7 116 8 9 10 11 12 117 118 13 Defendant Defendant Defendant Relevance. Authentication. Hearsay. FRE 401, 403, 801, 901. 14 15 16 119 120 17 18 19 121 20 122 21 123 22 23 24 25 26 27 124 125 126 Defendant . Relevance. Authentication. Hearsay. FRE 401, 403, 801, 901. Defendant Defendant Defendant Defendant Stipulate Defendant Stipulate 28 -15JOINT PRETRIAL ORDER Case 3:19-cv-00551-LRH-CSD Document 65 Filed 08/16/22 Page 15 of 40 1 2 3 127 Vocational Report filled out by Althouse (UP Althouse 49254933) CV for Michael Klein, M.D. Reports and Medical Records Review summaries prepared by Michael Klein, M.D. (various dates) Defendant . Defendant Defendant 130 Medical Illustrations of the Upper Extremity Defendant Hearsay. FRE 801. Relevance. Authentication. Hearsay. Lacks foundation. Improper Expert Opinion. FRE 401, 403, 701, 801, 901. Hearsay. FRE 801. Lacks foundation. FRE 901 131 Anatomical Model of the Upper Extremity Defendant Hearsay. FRE 801. Lacks foundation. FRE 901 132 Medical Illustrations of the Lumbar Spine Defendant Hearsay. FRE 801. Lacks foundation. FRE 901 133 Anatomical Model of the Lumbar Spine Defendant Hearsay. FRE 801. Lacks foundation. FRE 901 134 Medical Illustration of the Cervical Spine Defendant Hearsay. FRE 801. Lacks foundation. FRE 901 135 Anatomical Model of the Cervical Spine Defendant Hearsay. FRE 801. Lacks foundation. FRE 901 136 Medical Illustration of the Hip Defendant Hearsay. FRE 801. Lacks foundation. FRE 901 128 129 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -16JOINT PRETRIAL ORDER Case 3:19-cv-00551-LRH-CSD Document 65 Filed 08/16/22 Page 16 of 40 1 137 Anatomical Model of the Hip Defendant Hearsay. FRE 801. Lacks foundation. FRE 901 138 CV for Vincent Filoteo, PhD. Defendant 139 Neuropsychological Evaluation prepared by Vincent Filoteo, PhD dated August 25, 2021 Defendant Hearsay. Relevance. Authentication. FRE 401, 403, 801, 901 Relevance. Authentication. Hearsay. Lacks foundation. Improper Expert Opinion. FRE 401, 403, 701, 801, 901. 140 Supplemental Report of Vincent Filoteo, PhD dated February 24, 2022 Defendant 141 CV for Amy Koellner Defendant 142 Vocational Evaluation Report by Amy Koellner dated February 24, 2022 Defendant 143 Rebuttal Report by Amy Koellner dated March 24, 2022 Defendant 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -17JOINT PRETRIAL ORDER Relevance. Authentication. Hearsay. Lacks foundation. Improper Expert Opinion. FRE 401, 403, 701, 801, 901. Hearsay. Relevance. Authentication. FRE 401, 403, 801, 901 Relevance. Authentication. Hearsay. Lacks foundation. Improper Expert Opinion. FRE 401, 403, 701, 801, 901. Relevance. Authentication. Hearsay. Lacks foundation. Improper Expert Opinion. FRE 401, 403, 701, 801, 901. Case 3:19-cv-00551-LRH-CSD Document 65 Filed 08/16/22 Page 17 of 40 1 144 CV for Peter Wrobel, CPA/ABV, CFE Defendant 145 Report of Peter Wrobel dated February 24, 2022 Defendant 146 Rebuttal Report of Peter Wrobel dated March 25, 2022 Defendant Relevance. Authentication. Hearsay. Lacks foundation. Improper Expert Opinion. FRE 401, 403, 701, 801, 901. 147 CV for David Rondinone, PhD, P.E Defendant 148 Report of David Rondinone, dated February 24, 2022 Defendant Hearsay. Relevance. Authentication. FRE 401, 403, 801, 901 Relevance. Authentication. Hearsay. Lacks foundation. Improper Expert Opinion. FRE 401, 403, 701, 801, 901. 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 Hearsay. Relevance. Authentication. FRE 401, 403, 801, 901 Relevance. Authentication. Hearsay. Lacks foundation. Improper Expert Opinion. FRE 401, 403, 701, 801, 901. 19 20 21 22 (c) Electronic exhibits for purposes of jury deliberation: Exhibit No. Exhibit Description Party Offering 23 24 25 26 27 28 -18JOINT PRETRIAL ORDER Non-Offering Party Objection(s) Case 3:19-cv-00551-LRH-CSD Document 65 Filed 08/16/22 Page 18 of 40 1 2 (d) Depositions: (i) 3 4 Plaintiff will offer the following depositions: Name A.J. McCoy 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Steven E. Berman, M.D. Page/Line 5:12-5:16 7:21-10:21 11:11-16:2 17:6-18:18 19:23-20:13 21:6-26:18 27:3-30:21 31:20-33:16 34:24-47:11 47:23-61:25 5:15-5:20 6:19-6:25 7:4-10:22 11:3-11:16 11:18-12:6 14:4-14:7 14:19-14:23 17:12-17:19 20:6-21:6 21:10-22:11 23:19-24:16 25:24-27:10 28:5-29:13 30:2-31:13 32:7-35:17 36:3-37:14 38:14-38:18 39:15-40:13 40:19-42:13 43:1-44:10 44:15-44:17 44:22-45:14 47:3-48:17 50:3-52:15 53:3-53:19 54:19-56:25 60:14-61:25 65:3-65:6 65:21-66:2 67:2-68:24 -19JOINT PRETRIAL ORDER Party Against Whom Offered Case 3:19-cv-00551-LRH-CSD Document 65 Filed 08/16/22 Page 19 of 40 1 2 3 4 Lacy Fettic, M.D. 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Julius M. Rogina, Ph.D. 69:16-72:9 73:3-81:24 82:11-86:11 87:19-96:10 102:7-103:8 105:23-108:14 5:18-6:4 9:4-9:8 10:24-11:2 11:8-13:23 14:7-14:17 15:21-16:8 17:24-20:6 20:22-21:12 21:25-23:2 23:20-24:3 25:17-26:22 27:18-28:15 29:3-29:5 29:13-29:17 33:19-35:12 36:5-36:20 40:11-42:7 42:19-44:5 45:22-46:2 46:25-47:5 48:21-49:21 52:23-53:23 55:14-56:13 56:25-57:4 58:1-58:2 58:13-58:14 58:19-58:22 60:12-60:22 63:13-64:2 65:25-66:4 66:18-67:1 68:23-69:9 74:6-74:17 74:20-75:14 79:20-80:14 7:13-8:7 8:19-9:9 10:2-10:9 10:19-11:13 14:25-15:2 -20JOINT PRETRIAL ORDER Case 3:19-cv-00551-LRH-CSD Document 65 Filed 08/16/22 Page 20 of 40 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Elizabeth Kiehn, APRN 16:8-17:12 18:7-23:6 23:14-24:14 25:8-25:16 28:7-30:18 30:24-36:9 36:17-39:23 40:11-41:14 42:1-51:21 52:8-54:5 56:6-58:25 61:13-64:1 72:19-75:2 75:15-76:1 79:25-80:25 81:24-82:25 93:12-94:13 96:22-97:16 5:9-5:14 7:13-7:17 8:2-8:5 10:7-13:8 15:4-15:15 17:1-17:16 18:1-18:2 19:1-19:12 22:9-24:20 27:15-27:20 28:1-30:40 31:1-31:4 32:3-33:11 34:14-35:16 39:1-39:13 40:13-42:2 43:4-43:18 47:1-49:17 50:1-50:11 50:22-52:3 55:9-56:20 73:12-74:2 75:12-75:25 79:16-81:5 81:14-81:15 81:23-84:8 84:15-86:2 87:24-89:5 -21JOINT PRETRIAL ORDER Case 3:19-cv-00551-LRH-CSD Document 65 Filed 08/16/22 Page 21 of 40 1 2 3 4 5 Justin Walker, M.D. 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 (ii) 90:1-90:15 92:9-93:19 94:7-94:11 95:8-95:23 96:8-97:4 97:24-98:25 103:8-103:17 8:13-11:12 11:18-14:2 15:1-15:15 15:23-18:5 19:5-19:19 20:6-20:13 20:19-20:23 21:1-21:10 25:18-25:21 26:3-31:3 31:21-34:9 34:21-40:10 41:16-52:10 52:21-66:18 67:24-79:9 81:15-82:16 84:21-85:25 87:3-89:7 92:22-93:1 93:14-93:17 94:11-100:5 100:23-111:25 112:16-114:10 115:2-117:4 Defendant will offer the following depositions: Name Dr. Steven Berman Page/Line 5:5-18, 6:19-9:19 10:12-11:13 12:13-13:10 13:17-14:11 14:20-16:7 16:12-17:19 28 -22JOINT PRETRIAL ORDER Party Against Whom Offered Plaintiff Case 3:19-cv-00551-LRH-CSD Document 65 Filed 08/16/22 Page 22 of 40 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Dr. Lacy Fettic 18:16-19:23 (stop after “That is correct.”) is it 19:25? 20:1-12 20:14-21:6 21:10-23:12 23:19-24:16 24:24-26:1 26:23-27:7 27:9-10 28:5-20 29:21-32:16 34:9-18 36:3-37:3 38:4-42:1 42:20-43:9 43:21-46:16 47:3-49:6 50:3-52:6 52:8-53:7 53:9-53:15 53:17-54:17 54:19-55:7 55:9-20 55:22-56:3 56:5-10 56:24-58:7 58:21-23 58:25-61:25 62:4-22 62:24-63:15 64:12-65:6 75:8-11 76:16-21 90:4-91:25 105:5-22 107:24-108:4 108:5-14 5:9-24 Plaintiff 10:11-20 11:8-13:16 14:13-24 15:21-22 16:5-8 17:24-19:21 20:7-21:2 29:3-25 -23JOINT PRETRIAL ORDER Case 3:19-cv-00551-LRH-CSD Document 65 Filed 08/16/22 Page 23 of 40 1 2 3 4 5 6 7 Elizabeth Kiehn, APRN 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Julius M. Rogina, Ph.D. 33:19-34:23 37:22-38:7 41:4-42:8 43:10-14 44:23-45:6 46:23-47:16 48:21-49:8 51:5-8 57:11-25 78:8-21 5:3-6 8:7-13 10:7-17:12 18:1-19:12 20:1-26:13 27:2-38:10 38:13-43:24 44:2-46:14 47:1-51:12 51:20-53:11 53:13-63:3 64:2-6 64:8-11 64:13-21 64:23-25 65:2-7 65:9-14 65:16-18 65:20-21 66:2-3 66:5-15 66:17-19 66:21-67:1 67:3-10 67:12-14 67:18-68:9 68:11-17 69:13-74:2 75:17-77:16 83:2-25 107:6-21 107:23-108:11 7:7-8:1 23:17-24:11 25:17-26:2 28:23-29:7 -24JOINT PRETRIAL ORDER Plaintiff Plaintiff Case 3:19-cv-00551-LRH-CSD Document 65 Filed 08/16/22 Page 24 of 40 1 2 3 4 5 6 7 8 9 10 11 12 13 Justin Walker, M.D. 14 15 16 17 18 19 20 21 22 23 24 25 30:2-18 60:14-61:2 61:9-12 63:1-12 63:14-15 66:3-6 70:7-71:4 71:15-75:7 75:10-76:5 76:22-78:7 81:12-82:9 82:20-25 83:9-84:5 84:14-25 85:5-10 85:13-91:12 91:15-93:9 93:12-94:6 94:11-95:1 104:10-21. 7:6-8 8:18-23 9:2-11:12 11:22-14:2 16:3-20:13 21:1-25:4 25:18-40:10 42:22-63:6 63:9-72:3 72:7-79:9 80:11-82:16 83:14-18 84:6-10 84:21-86:7 86:16-18 86:21-90:6 90:8-13 90:15-18 91:7-8 91:10-21 92:1-93:1 117:14-118:14 26 27 (e) Objections to depositions: 28 -25JOINT PRETRIAL ORDER Plaintiff Case 3:19-cv-00551-LRH-CSD Document 65 Filed 08/16/22 Page 25 of 40 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 (i) Plaintiff objects to Defendant’s depositions as follows: Name Steven Berman, M.D. Page/Line & Objections Objection to 14:8-11: Calls for speculation (based on testimony at 14:13-19). Objection to 14:24-16:20: Relevance; probative value substantially outweighed by unfair prejudice, confusing the issues, misleading the jury, undue delay and wasting time Objection to 19:1-19:17: Relevance; probative value substantially outweighed by unfair prejudice, confusing the issues, misleading the jury, undue delay and wasting time Objection to 20:6-12: Relevance; probative value substantially outweighed by unfair prejudice, confusing the issues, misleading the jury, undue delay and wasting time; compound Objection to 20:14-21:6: Relevance; probative value substantially outweighed by unfair prejudice, confusing the issues, misleading the jury, undue delay and wasting time Objection to 22:21-23”12: Relevance; probative value substantially outweighed by unfair prejudice, confusing the issues, misleading the jury, undue delay and wasting time Objection to 20:6-12: Relevance; probative value substantially outweighed by unfair prejudice, confusing the issues, misleading the jury, undue delay and wasting time Objection to 20:6-12: Relevance; probative value substantially outweighed by unfair prejudice, confusing the issues, misleading the jury, undue delay and wasting time; question with no answer (25:24-26:1) Objection to 26:23-27:7: Relevance; probative value substantially outweighed by unfair prejudice, confusing the issues, misleading the jury, undue delay and wasting time Objection to 27:9-10: Relevance; probative value substantially outweighed by unfair prejudice, confusing the issues, misleading the jury, undue delay and wasting time. 28 -26JOINT PRETRIAL ORDER Case 3:19-cv-00551-LRH-CSD Document 65 Filed 08/16/22 Page 26 of 40 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 Objection to 29:21-29:25: Relevance; probative value substantially outweighed by unfair prejudice, confusing the issues, misleading the jury, undue delay and wasting time; vague and ambiguous; question misstates the law as to FELA/“work-related injury”; reference to Workers’ Compensation applicability issue Objection to 31:14-32:6: Relevance; probative value substantially outweighed by unfair prejudice, confusing the issues, misleading the jury, undue delay and wasting time Objection to 51:2-3 “and the obvious litigation that goes along with this”: Relevance; probative value substantially outweighed by unfair prejudice, confusing the issues, misleading the jury, undue delay and wasting time; hearsay Objection to 52:3-6 and 52:8-53:2: Relevance; probative value substantially outweighed by unfair prejudice, confusing the issues, misleading the jury, undue delay and wasting time; hearsay; misstates the testimony Objection to 53:12-15: Relevance; probative value substantially outweighed by unfair prejudice, confusing the issues, misleading the jury, undue delay and wasting time; vague and ambiguous; compound; leading 16 17 18 19 20 21 22 23 24 25 26 27 Objection to 53:17-19: Relevance; probative value substantially outweighed by unfair prejudice, confusing the issues, misleading the jury, undue delay and wasting time; vague and ambiguous; nonresponsive Objection to 55:5-14: Relevance; probative value substantially outweighed by unfair prejudice, confusing the issues, misleading the jury, undue delay and wasting time; vague and ambiguous; leading; nonresponsive Objection to 58:21-23: Relevance; probative value substantially outweighed by unfair prejudice, confusing the issues, misleading the jury, undue delay and wasting time; compound; vague and ambiguous; calls for speculation; lack of foundation Objection to 62:19-63:4: Speculation; relevance; probative value substantially outweighed by unfair prejudice, confusing 28 -27JOINT PRETRIAL ORDER Case 3:19-cv-00551-LRH-CSD Document 65 Filed 08/16/22 Page 27 of 40 the issues, misleading the jury, undue delay and wasting time; improper expert testimony; lacks foundation. 1 2 Objection to 105:5:22: Relevance; probative value substantially outweighed by unfair prejudice, confusing the issues, misleading the jury, undue delay and wasting time. 3 4 5 6 7 Dr. Lacy Fettic 8 9 Objection to 105:5:22: Relevance; probative value substantially outweighed by unfair prejudice, confusing the issues, misleading the jury, undue delay and wasting time. Objection to 14:18-24: Relevance; probative value substantially outweighed by unfair prejudice, confusing the issues, misleading the jury, undue delay and wasting time; calls for speculation. Objection to 19:17-20:6: Relevance; probative value substantially outweighed by unfair prejudice, confusing the issues, misleading the jury, undue delay and wasting time; speculative; lack of foundation. 10 11 12 Objection to 37:22-38:7: Relevance; probative value substantially outweighed by unfair prejudice, confusing the issues, misleading the jury, undue delay and wasting time. 13 14 Objection to 44:23-45:6: Relevance; probative value substantially outweighed by unfair prejudice, confusing the issues, misleading the jury, undue delay and wasting time. 15 16 17 18 19 20 21 22 23 24 25 26 27 Elizabeth Kiehn, APRN Objection to 13:18-14:13: Relevance; probative value substantially outweighed by unfair prejudice, confusing the issues, misleading the jury, undue delay and wasting time. Objection to 20:1-21:4: Relevance; probative value substantially outweighed by unfair prejudice, confusing the issues, misleading the jury, undue delay and wasting time. Objection to 36:2-15: Relevance; probative value substantially outweighed by unfair prejudice, confusing the issues, misleading the jury, undue delay and wasting time. Objection to 38:8-10: Relevance; probative value substantially outweighed by unfair prejudice, confusing the issues, misleading the jury, undue delay and wasting time; compound; calls for speculation; calls for hearsay. 28 -28JOINT PRETRIAL ORDER Case 3:19-cv-00551-LRH-CSD Document 65 Filed 08/16/22 Page 28 of 40 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 Objection to 38:13-14: Relevance; probative value substantially outweighed by unfair prejudice, confusing the issues, misleading the jury, undue delay and wasting time; compound; speculation; hearsay. Objection to 43:19-24: Relevance; probative value substantially outweighed by unfair prejudice, confusing the issues, misleading the jury, undue delay and wasting time; compound; calls for speculation. Objection to 44:2-45:10: Relevance; probative value substantially outweighed by unfair prejudice, confusing the issues, misleading the jury, undue delay and wasting time; compound; calls for speculation. Objection to 52:23-53:11: Relevance; probative value substantially outweighed by unfair prejudice, confusing the issues, misleading the jury, undue delay and wasting time; compound. Objection to 53:13-14: Relevance; probative value substantially outweighed by unfair prejudice, confusing the issues, misleading the jury, undue delay and wasting time; compound. Objection to 53:24-60:4: Relevance; probative value substantially outweighed by unfair prejudice, confusing the issues, misleading the jury, undue delay and wasting time; compound. Objection to 61:10-63:3: Relevance; probative value substantially outweighed by unfair prejudice, confusing the issues, misleading the jury, undue delay and wasting time; compound. Objection to 64:2-6: Relevance; probative value substantially outweighed by unfair prejudice, confusing the issues, misleading the jury, undue delay and wasting time. Objection to 64:8-11: Relevance; probative value substantially outweighed by unfair prejudice, confusing the issues, misleading the jury, undue delay and wasting time. Objection to 64:13-21: Relevance; probative value substantially outweighed by unfair prejudice, confusing the issues, misleading the jury, undue delay and wasting time. 28 -29JOINT PRETRIAL ORDER Case 3:19-cv-00551-LRH-CSD Document 65 Filed 08/16/22 Page 29 of 40 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 Objection to 64:23-25: Relevance; probative value substantially outweighed by unfair prejudice, confusing the issues, misleading the jury, undue delay and wasting time. Objection to 65:2-7: Relevance; probative value substantially outweighed by unfair prejudice, confusing the issues, misleading the jury, undue delay and wasting time. Objection to 65:9-14: Relevance; probative value substantially outweighed by unfair prejudice, confusing the issues, misleading the jury, undue delay and wasting time. Objection to 65:16-18: Relevance; probative value substantially outweighed by unfair prejudice, confusing the issues, misleading the jury, undue delay and wasting time. Objection to 65:20-21: Relevance; probative value substantially outweighed by unfair prejudice, confusing the issues, misleading the jury, undue delay and wasting time. Objection to 66:2-3: Relevance; probative value substantially outweighed by unfair prejudice, confusing the issues, misleading the jury, undue delay and wasting time. Objection to 66:5-15: Relevance; probative value substantially outweighed by unfair prejudice, confusing the issues, misleading the jury, undue delay and wasting time. Objection to 66:17-19: Relevance; probative value substantially outweighed by unfair prejudice, confusing the issues, misleading the jury, undue delay and wasting time. Objection to 66:21-67:1: Relevance; probative value substantially outweighed by unfair prejudice, confusing the issues, misleading the jury, undue delay and wasting time. Objection to 67:3-10: Relevance; probative value substantially outweighed by unfair prejudice, confusing the issues, misleading the jury, undue delay and wasting time. Objection to 67:12-14: Relevance; probative value substantially outweighed by unfair prejudice, confusing the issues, misleading the jury, undue delay and wasting time; speculation; lack of foundation. 28 -30JOINT PRETRIAL ORDER Case 3:19-cv-00551-LRH-CSD Document 65 Filed 08/16/22 Page 30 of 40 Objection to 67:18-68:9: Relevance; probative value substantially outweighed by unfair prejudice, confusing the issues, misleading the jury, undue delay and wasting time; speculation; lack of foundation. 1 2 3 Objection to 69:19-70:6: Relevance; probative value substantially outweighed by unfair prejudice, confusing the issues, misleading the jury, undue delay and wasting time. 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Julius M. Rogina, Ph.D. Objection to 61:9-12: Relevance; probative value substantially outweighed by unfair prejudice, confusing the issues, misleading the jury, undue delay and wasting time; calls for speculation Objection to70:7-71:4- Relevance; probative value substantially outweighed by unfair prejudice, confusing the issues, misleading the jury, undue delay and wasting time; calls for speculation; calls for hearsay. Objection to 71:15-75:7- Relevance; probative value substantially outweighed by unfair prejudice, confusing the issues, misleading the jury, undue delay and wasting time; calls for speculation; calls for hearsay. Objection to 81:12-23- Relevance; probative value substantially outweighed by unfair prejudice, confusing the issues, misleading the jury, undue delay and wasting time; calls for speculation; calls for hearsay. Objection to 83:9-84:5- Relevance; probative value substantially outweighed by unfair prejudice, confusing the issues, misleading the jury, undue delay and wasting time; calls for speculation; calls for hearsay. Objection to 84:14-25: Relevance; probative value substantially outweighed by unfair prejudice, confusing the issues, misleading the jury, undue delay and wasting time; calls for speculation; calls for hearsay. Objection to 85:5:10: Relevance; probative value substantially outweighed by unfair prejudice, confusing the issues, misleading the jury, undue delay and wasting time; calls for speculation; calls for hearsay. Objection to 85:13-91:12- Relevance; probative value substantially outweighed by unfair prejudice, confusing the -31JOINT PRETRIAL ORDER Case 3:19-cv-00551-LRH-CSD Document 65 Filed 08/16/22 Page 31 of 40 issues, misleading the jury, undue delay and wasting time; calls for speculation; calls for hearsay. 1 2 Objection to 91:15-93:9: Relevance; probative value substantially outweighed by unfair prejudice, confusing the issues, misleading the jury, undue delay and wasting time; calls for speculation; calls for hearsay. 3 4 5 Objection to 94:11-95:1: Relevance; probative value substantially outweighed by unfair prejudice, confusing the issues, misleading the jury, undue delay and wasting time; calls for speculation; calls for hearsay. 6 7 8 Objection to 104:10-21: Relevance; probative value substantially outweighed by unfair prejudice, confusing the issues, misleading the jury, undue delay and wasting time; calls for speculation; calls for hearsay. 9 10 11 12 Justin Walker, M.D. 13 Objection to 90:4-6: Compound; overbroad; vague and ambiguous. Objection to 90:8-13: Compound; overbroad; vague and ambiguous; speculative; lacks foundation. 14 Objection to 90:15-18: Compound; overbroad; vague and ambiguous; misleading; lacks foundation. 15 16 Objection to 91:7-8: Compound; overbroad; vague and ambiguous; misleading; calls for speculation. 17 18 Objection to 90:15-18: Speculation; lacks foundation. 19 20 Objection to 117:14-18: Relevance; probative value substantially outweighed by unfair prejudice, confusing the issues, misleading the jury, undue delay and wasting time; speculation; lack of foundation; compound. 21 22 23 24 25 26 (ii) Defendant objects to Plaintiff’s depositions as follows: Name Page/Line & Objections 27 28 -32JOINT PRETRIAL ORDER Case 3:19-cv-00551-LRH-CSD Document 65 Filed 08/16/22 Page 32 of 40 1 A.J. McCoy General objection to use of McCoy’s deposition transcript at trial as he is not an officer, director, managing agent or designee for purpose of FRCP 32(a)(3). 5:12-5:16: Relevance. FRE 401. 7:21-8:12: Relevance. FRE 401. 19:23-20:13 and Exhibit 1: Relevance, hearsay. FRE 401, 801. 21:6-18: Relevance, more prejudicial than probative. FRE 401, 403. 35:12-18: Lacks foundation, speculation. FRE 601-602. Opinion on an ultimate issue. FRE 704. 36:15-20: Lacks foundation, speculation. FRE 601-602. 42:23-43:10: Lacks foundation, speculation, improper lay opinion, unqualified and improper expert opinion. FRE 601602, 701-702. 43:12-21: Hearsay. Speculation. FRE 601-601, 801. 43:23-44:3: Lacks foundation, speculation, improper lay opinion, unqualified and improper expert opinion. FRE 601602, 701-702. 44:5-8: Hearsay. Speculation. FRE 601-601, 801. 44:23-45:7: Hearsay. Speculation. FRE 601-601, 801. 45:13-17: Hearsay. Speculation. FRE 601-601, 801. 48:21-49:11: Lacks foundation, speculation, improper lay opinion. FRE 601-602, 701. 51:4-12: Relevance. FRE 401. 53:8-13: Lacks foundation, speculation, improper lay opinion, unqualified and improper expert opinion. Hearsay. FRE 601602, 701-702, 801. 54:23-55:10: Hearsay. FRE 801. 55:12-57:9: Lacks foundation, speculation, improper lay opinion, unqualified and improper expert opinion. Hearsay. Subsequent remedial measures. FRE 407, 601-602, 701-702, 801. 58:2-6: Lacks foundation, speculation, improper lay opinion, unqualified and improper expert opinion. FRE 601-602, 701702. Counter designate: 62:5-64:1. Steven E. Berman, M.D. 26:2: Remove objection. 28:21-13: Reference to workers compensation and insurance is irrelevant and more prejudicial than probative. FRE 401, 403. 32:17-34:8: Lacks foundation, speculation, unqualified and improper expert opinion. FRE 601-602, 701-702. 34:19-17: Reference to insurance and losing his insurance is irrelevant and more prejudicial than probative. FRE 401, 403. Question at 35:17 does not include the answer. 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -33JOINT PRETRIAL ORDER Case 3:19-cv-00551-LRH-CSD Document 65 Filed 08/16/22 Page 33 of 40 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 Lacy Fettic, M.D. 16 17 18 19 20 21 22 23 24 25 26 27 Elizabeth Kiehn, APRN 37:4-14: Lacks foundation, speculation, unqualified and improper expert opinion. FRE 601-602, 701-702. 67:2-68:16: Reference to workers compensation and FELA irrelevant and more prejudicial than probative. Speculation regarding what Mr. Althouse believed. FRE 401, 403, 601-602. 71:9-15: Relevance and more prejudicial than probative. FRE 401, 403. 71:22-72:9: Lacks foundation, speculation. FRE 601-602. 73:24-74:14: Lacks foundation, speculation. FRE 601-602. 74:15-75:7: Lacks foundation, speculation, unqualified and improper expert opinion. FRE 601-602, 701-702. 75:12-76:15: Lacks foundation, speculation, unqualified and improper expert opinion. FRE 601-602, 701-702. 77:6-79:23: Lacks foundation, speculation, unqualified and improper expert opinion. FRE 601-602, 701-702. 83:1-4: Lacks foundation, speculation. FRE 601-602. 88:14-23: Lacks foundation, speculation, unqualified and improper expert opinion. FRE 601-602, 701-702. 92:1-95:15: Lacks foundation, speculation, unqualified and improper expert opinion. FRE 601-602, 701-702. 96:7-10: Improper character evidence. Relevance. More prejudicial than probative. FRE 401, 403, 404. 105:23-107:23: Lacks foundation, speculation, unqualified and improper expert opinion. FRE 601-602, 701-702. 13:17-22: No question and answer. 19:22-23 & 20:1-2: Objections should be removed. 22:20-23: Objections should be removed. 26:16-17: Objections should be removed. 27:1-2 & 28:10-12: Objections should be removed. 43:23-44:5: Objections should be removed and no substantive answer given. 45:23-46:2: No substantive answer given. Line 2 is not part of the answer. 52:23-53:23, 55:14-56:13, 56:25-57:4: Plaintiff has conceded no claim is being made for traumatic brain injury so this testimony is irrelevant and prejudicial. No foundation, unqualified and improper expert opinion. FRE 401, 403, 701. 55:25-56:1: Objection should be removed. 74:6-17, 74:20-75:14: Plaintiff has conceded no claim is being made for traumatic brain injury so this testimony is irrelevant and prejudicial. No foundation, unqualified and improper expert opinion. FRE 401, 403, 701. 79:20-80:14: No foundation, unqualified and improper expert opinion. 85:15-86:2: Lacks foundation, speculation. FRE 601-602. 28 -34JOINT PRETRIAL ORDER Case 3:19-cv-00551-LRH-CSD Document 65 Filed 08/16/22 Page 34 of 40 1 2 3 Justin Walker, M.D. 4 5 6 7 8 9 10 11 12 13 14 15 16 88:16-89:5: Relevance, undue consumption of time. FRE 401, 403. 93:14-19: Continue to 93:20-22 under the rule of completeness. 94:7-11: No substantive response to question posed. 15:1-15: Hearsay. FRE 801. 41:16-42:21: Relevance. FRE 401. 94:15-97:12: Lacks foundation, speculation, improper opinion. FRE 601-602, 702. 97:13-98:13: Lacks foundation, speculation. FRE 601-602. 99:25-100:5: Relevance. FRE 401. Medical expenses paid by railroad employer or employer paid medical are not recoverable under the FELA. 45 U.S.C. § 55, Folkestad v. Burlington Northern, Inc., 813 F.2d 1377 (9th Cir. 1987). 100:23-101:5: Hearsay. FRE 801. 107:11-108:10: Lacks foundation, speculation, improper opinion. FRE 601-602, 702. 108:16-23: Relevance. More prejudicial than probative. Lacks foundation, speculation, improper opinion. FRE 401, 403, 601602, 702. 108:24-109:3: Lacks foundation, speculation, improper opinion. FRE 601-602, 702. 109:10-111:5: Lacks foundation, speculation, improper opinion. FRE 601-602, 702. 112:16-113:8: Lacks foundation, speculation, improper opinion. FRE 601-602, 702. 113:19-117:4: Hearsay. FRE 801. 17 18 19 20 21 VIII. The following witness may be called by the parties at trial: (a) Provide names/addresses of Plaintiff’s witnesses: 23 Names of Plaintiff’s Witnesses Via Deposition Testimony: Aaron J. McCoy, UPRC, Track Foreman 24 Steven E. Berman, M.D. 25 Lacy Fettic, M.D. 22 26 27 Address of Plaintiff’s Witnesses 13181 Crossroads Parkway North, Suite 500, City of Industry, CA 91746 Nevada Pain & Spine Specialists, 605 Sierra Rose Drive, Suite 4, Reno, NV 89511 University of Nevada, Reno, School of Medicine, Family Medicine Center – Reno, 1664 N. Virginia Street UNR Brigham Bldg, Mailstop 316, Reno, NV 89557 28 -35JOINT PRETRIAL ORDER Case 3:19-cv-00551-LRH-CSD Document 65 Filed 08/16/22 Page 35 of 40 1 2 3 4 5 6 7 8 9 10 11 12 Julius M. Rogina, Ph.D. Elizabeth Kiehn, APRN Justin Walker, M.D. 1270 Wakefield Trail, Reno, NV 89523-9718 1330 Crosswater Drive, Reno, NV 89523 Reno Orthopaedic Clinic, 555 North Arlington Avenue, Reno, NV 89503 Via Live Testimony: Christopher Althouse Gail Althouse Cameron Pulsifer, UPRC, Manager Track and Maintenance Mike Upton, UPRC Mark J. Burns, BSME, JD, GC, CBI, CXLT, CPSI Jason E. Garber, M.D. Colby P. Young, M.D. 13 Paul Broadus, M.A. 14 Jeffrey B. Opp, Economist 15 16 17 18 19 20 21 (b) Provide names/addresses of Defendant’s witnesses: Names of Defendant’s Witnesses Via Deposition Testimony Steven E. Berman, MD Lacy Fettic, MD 22 Elizabeth Kiehn, APRN 23 Julius Rogina, Ph.D. Justin Walker, MD 24 25 26 27 c/o James A. Morris, Jr., Brent Coon & Associates, 4001 W. Alameda Avenue Suite 208, Burbank, CA 91505 741 Canary Circle, Fernley, NV 89408 13181 Crossroads Parkway North, Suite 500, City of Industry, CA 91746 13181 Crossroads Parkway North, Suite 500, City of Industry, CA 91746 Aperture |LLC/Wexco 1730 E. Holly Avenue, Suite 720, El Segundo, CA 90245 Center for Spine and Brain Surgery, 3012 South Durango Drive, Las Vegas, NV 89117 HandSurgery Specialists of Nevada, 9321 W. Sunset Road, Las Vegas, NV 89148 Broadus & Associates, 112 N. Harvard Avenue, #221, Claremont, CA 91711 Opp & Company, Inc., 399 Perry Street, Suite 201, Castle Rock, CO 80104 Mark Allen Via Live Testimony Addresses of Defendant’s Witnesses Nevada Pain & Spine Specialists, 605 Sierra Rose Drive, Suite 4, Reno, NV 89511 Humboldt General Hospital, 118 E. Haskell Street, Winnemucca, NV 89445 Travelling Triggers, 3636 Mayberry Drive, Suite 102, Reno, NV 89509 1270 Wakefield Trail, Reno, NV 89523 Reno Orthopedic Clinic, 555 North Arlington Avenue, Reno, NV 89503 UPRR Director of Track Construction, Southern Region HQ, 24125 Aldine Westfield Road, Spring, TX 77373 28 -36JOINT PRETRIAL ORDER Case 3:19-cv-00551-LRH-CSD Document 65 Filed 08/16/22 Page 36 of 40 1 2 3 4 5 6 7 8 9 10 11 Christopher Althouse Gail Althouse Joshua Cole Cornett Angela Craik J. Vincent Filoteo, Ph.D. Michael R. Klein, Jr., M.D., F.A.C.S. Amy Koellner, MS, ABVE, CRC, LPCCLPC Greg Haney Scott Lauby 12 Aaron J. McCoy 13 Cameron Pulsifer 14 David Rondinone, Ph.D., P.E. 15 16 17 18 Mike Upton Peter D. Wrobel, CPA/APV, CFE c/o James A. Morris, Jr., Brent Coon & Associates, 4001 W. Alameda Avenue Suite 208, Burbank, CA 91505 741 Canary Circle, Fernley, NV 89408 UPRR Ballast Tamer Operator Mulit, 999 E 16th St., Tucson, AZ 85701 UPRR Risk Management Representative, 9451 Atkinson Street, Roseville, CA 95747 VA San Diego Healthcare System, Psychology Service 116-B, 3350 La Jolla Village Dr., La Jolla, CA 92136 MRK Medical Consultants, 11249 Gold Country Blvd., Suite 165, Gold River, CA 95670 Career Counseling & Consulting, 4647 Long Beach Blvd., Suite D10, Long Beach, CA 90805 UPRR Manager II MOW, Nephi, UT UPRR Sr. Manager, Track Welding, 1400 Douglas St., Omaha, NE 68179 UPRR Ballast Tamer Operator Switch, Gerlach, NV UPRR Manager I Track Maintenance, 1 South Pyramid Way, Sparks, NV 89431 Principal Mechanical Engineer, Berkeley Engineering and Research, Inc., 808 Gilman Street, Berkeley, CA 94710 UPRR Sr. Manager, Track Maintenance, 1 South Pyramid Way, Sparks, NV 89431 Berkeley Research Group, 550 South Hope Street, Suite 2150, Los Angeles, CA 90071 19 20 IX. 21 The attorneys or parties have met and jointly offer these three trial dates: March 30, 2023; April 3, 2023; 22 April 17, 2023. 23 24 25 26 27 It is expressly understood by the undersigned that the Court will set the trial of this matter on one of the agreed-upon dates if possible; if not, the trial will be set at the convenience of the Court’s calendar. It is estimated that the trial will take a total of 7-12 days. X. 28 -37JOINT PRETRIAL ORDER Case 3:19-cv-00551-LRH-CSD Document 65 Filed 08/16/22 Page 37 of 40 1 No motions in limine have been filed at this time. Pursuant to LR 16-3(a), motions in limine are due 2 filed 30 days prior to trial, unless the Court orders otherwise. Plaintiff is still considering those motions 3 in limine to be filed and is engaging in ongoing meet and confer with Defendant, but submits the 4 following tentative list: 5 6 7 1. Exclude evidence Plaintiff attended substance rehabilitation prior to the incident (including but not limited to at Elizabeth Kiehn, APRN, deposition transcript, p. 97; irrelevant, FRE 401, 402; 8 probative value substantially outweighed by unfair prejudice, confusing the issues, misleading 9 the jury, undue delay and wasting time, FRE 403.) 10 11 12 13 2. Exclude Michael R. Klein, Jr., M.D., expert opinions regarding spinal issues (expert unqualified in the specialty, FRE 702). 3. Exclude evidence regarding Plaintiff’s usage of alcohol, including “nine pints daily” (including 14 but not limited to at Steven Berman, M.D., deposition transcript, p. 81, and Lacy Fettic, M.D., 15 deposition transcript, p. 14, 30-32, 37-39; Elizabeth Kiehn, APRN, deposition transcript, p. 84, 16 97; irrelevant, FRE 401, 402; probative value substantially outweighed by unfair prejudice, 17 18 19 20 confusing the issues, misleading the jury, undue delay and wasting time, FRE 403.) 4. Exclude evidence regarding allegations Plaintiff was verbally abusive to wife (including but not limited to at Steven Berman, M.D., deposition transcript, pp. 52, 96; irrelevant, FRE 401, 402; 21 probative value substantially outweighed by unfair prejudice, confusing the issues, misleading 22 the jury, undue delay and wasting time, FRE 403.) 23 24 25 26 5. Exclude evidence regarding pain medication overuse, including “opioid dependence” (including but not limited to at Steven Berman, M.D., deposition transcript, pp. 18-22, 86, 96; Elizabeth Kiehn, APRN, deposition transcript, pp. 36, 43-45, 50, 98; irrelevant, FRE 401, 402; probative 27 28 -38JOINT PRETRIAL ORDER Case 3:19-cv-00551-LRH-CSD Document 65 Filed 08/16/22 Page 38 of 40 1 2 value substantially outweighed by unfair prejudice, confusing the issues, misleading the jury, undue delay and wasting time, FRE 403.) 3 6. Exclude evidence regarding impact of litigation on patients (including but not limited to at Steven 4 Berman, M.D., deposition transcript, pp. 98-99; Daubert v. Merrell Dow Pharmaceuticals Inc., 5 6 7 8 509 U.S. 579 (1993); irrelevant, FRE 401, 402; probative value substantially outweighed by unfair prejudice, confusing the issues, misleading the jury, undue delay and wasting time, FRE 403.) 9 7. Exclude evidence regarding tobacco usage, as well as the alleged impact of tobacco usage on 10 healing (including but not limited to at Lacy Fettic, M.D., deposition transcript, p. 30; Elizabeth 11 12 13 Kiehn, APRN, deposition transcript, p. 84; Justin Walker, M.D., deposition transcript, pp. 40-41 (Daubert v. Merrell Dow Pharmaceuticals Inc., 509 U.S. 579 (1993); irrelevant, FRE 401, 402; 14 probative value substantially outweighed by unfair prejudice, confusing the issues, misleading 15 the jury, undue delay and wasting time, FRE 403.) 16 17 18 19 20 8. Exclude evidence regarding urine drug screening during medical visits (including but not limited to at Elizabeth Kiehn, APRN, deposition transcript, pp. 13-14, 20; irrelevant, FRE 401, 402; probative value substantially outweighed by unfair prejudice, confusing the issues, misleading the jury, undue delay and wasting time, FRE 403.) 21 9. Exclude evidence regarding Plaintiff’s receipt of or entitlement to receive benefits of any kind 22 from a collateral source and to prohibit any set-off against the FELA award (collateral source 23 24 25 26 27 rule; irrelevant, FRE 401, 402.) Defendant intends to file the following motions in limine: 1. Exclude untimely and improper opinions of Plaintiff’s vocational expert Paul Broadus. (FRCP 26, 37; Daubert v. Merrell Dow Pharmaceuticals Inc., 509 U.S. 579 (1993).) 28 -39JOINT PRETRIAL ORDER Case 3:19-cv-00551-LRH-CSD Document 65 Filed 08/16/22 Page 39 of 40 1 2 3 4 5 6 7 8 2. Exclude improper opinions of Psychologist, Dr. Julius Rogina. (Daubert v. Merrell Dow Pharmaceuticals Inc., 509 U.S. 579 (1993).) 3. Exclude untimely and improper opinions of Plaintiff’s medical expert Dr. Young. (FRCP 26, 37; Daubert v. Merrell Dow Pharmaceuticals Inc., 509 U.S. 579 (1993).) 4. Exclude untimely and improper opinions of Plaintiff’s medical expert Dr. Garber including opinions based on MRI studies not produced in discovery. (FRCP 26, 37; Daubert v. Merrell Dow Pharmaceuticals Inc., 509 U.S. 579 (1993).) 9 5. Exclude speculative opinions of Plaintiff’s treating pain management physician Dr. Berman 10 regarding medication abuse post-incident. (Daubert v. Merrell Dow Pharmaceuticals Inc., 509 11 12 13 14 U.S. 579 (1993).) 6. Exclude improper opinions of Plaintiff’s liability expert Burns. (Daubert v. Merrell Dow Pharmaceuticals Inc., 509 U.S. 579 (1993).) 15 7. Preclude Plaintiff from seeking damages for past medical expenses paid by his employer or 16 employer paid health plan or not submitted for payment. (45 U.S.C. § 55, Folkestad v. Burlington 17 18 19 20 21 22 Northern, Inc., 813 F.2d 1377 (9th Cir.1987); Varhol v. National Railroad Passenger Corporation, 909 F.2d 1557 (7th Cir. 1990), Muzzleman v. National Rail Passenger Corporation, 839 F. Supp. 1094 (D. Del. 1993); Jones v. Consol. Rail Corp., 800 F.2d 590 (6th Cir. 1986).) 8. Exclude any evidence regarding Plaintiff suffering from a traumatic brain injury. (Daubert v. Merrell Dow Pharmaceuticals Inc., 509 U.S. 579 (1993).) 23 24 25 26 27 28 -40JOINT PRETRIAL ORDER Case 3:19-cv-00551-LRH-CSD Document 65 Filed 08/16/22 Page 40 of 40 1 2 3 4 5 6 7 APPROVED AS TO FORM AND CONTENT: /s/ James A. Morris, Jr. James A. Morris_______________________________________ Signature of Attorney for Plaintiff CHRISTOPHER ALTHOUSE /s/ Stephanie Quinn Stephanie Quinn Signature of Attorney for Defendant UNION PACIFIC RAILROAD COMPANY 8 9 10 11 XI. ORDER: This case is set for Court jury trial on the stacked calendar on Monday, April 3, 2023 at 8:30A.M. 12 Calendar call will be held on Thursday, March 23, 2023 at 1:30PM. 13 IT IS FURTHER ORDERED that this matter is referred to U.S. Magistrate Judge Craig S. Denney for a 14 15 16 settlement conference. IT IS SO ORDERED. 17 18 19 DATED: August 16, 2022 ________________________________________ LARRY R. HICKS UNITED STATES DISTRICT JUDGE 20 21 22 23 24 25 26 27 28 -41JOINT PRETRIAL ORDER

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