Althouse v. Union Pacific Railroad Company

Opinion

4 CHRISTOPHER ALTHOUSE, ) Case No.: 3:19-cv-00551-LRH-WGC 5 ) 6 Plaintiff, ) ) JOINT PRETRIAL ORDER 7 vs. ) ) 8 UNION PACIFIC RAILROAD COMPANY, a ) 9 Delaware corporation, ) ) 10 Defendant. ) ________________________________________ ) 11 12 I. 13 This is a civil action for personal injuries incurred while Plaintiff CHRISTOPHER ALTHOUSE was 14 acting within the course and scope of his employment as a truck driver with Defendant UNION PACIFIC 15 RAILROAD COMPANY wherein Plaintiff seeks damages for 1) past and future medical costs; 2) past 16 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 Plaintiff contends Defendant: 20 1. Failed in its duty to provide reasonably safe tools and equipment. 21 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 22 departures from the general customs and practices of the railroad. 23 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. 24 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. 25 8. Failed in its duty to comply with Defendants’ own safety rules, policies and procedures as relates 26 to the tasks workers are instructed to perform. 9. Failed to ensure workers are safe from harmful acts of others. 27 28 10.Failed in its duty to investigate, implement and institute reasonably safe methods and procedures 1 for the inspection, maintenance, correction and repair of work sites and equipment, as well as 2 other duties the breach of which may be revealed by discovery. 3 Defendant contends: 4 5 1. Defendant was not negligent as alleged by Plaintiff. 2. Defendant could not reasonably foresee the happening of the subject accident. 6 3. Plaintiff was negligent. 4. Some of Plaintiff’s injuries are the result of pre-existing and/or chronic conditions. 7 5. Plaintiff failed to reasonably mitigate his damages. 8 II. 9 Statement of jurisdiction: The incident giving rise to this lawsuit occurred in the County of Lyon, State 10 of Nevada. At all relevant times, Defendant was and now is a duly-organized and existing corporation 11 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 meaning of Federal Employers’ Liability Act (“FELA”). Plaintiff brings this action against Defendant 15 under the provisions of 45 U.S.C. §§51 to 60, et seq., of the FELA. Under the terms of the FELA, this 16 Court has jurisdiction pursuant to 45 U.S.C. §56. (concurrent jurisdiction). 17 19 The following facts are admitted by the parties and require no proof: 20 1. Defendant is a Delaware corporation authorized to do business in the State of Nevada. 21 2. Plaintiff is an individual residing in Fernley, Nevada. 22 3. At all relevant times, Plaintiff was employed by Defendant. 23 24 4. At all relevant times, Defendant is and was a common carrier by railroad in the County of Lyon, 25 State of Nevada, and other counties and states. 26 5. At all relevant times, Defendant is and was engaged in interstate commerce within the meaning 27 of FELA. 28 6. The herein Court has jurisdiction. 1 2 7. Venue is proper in this Court. 3 8. Plaintiff was employed as a truck driver by Defendant on December 13, 2018. 4 IV. 5 The following facts, though not admitted, will not be contested at trial by evidence to the contrary: 6 1. The incident giving rise to this lawsuit occurred in the County of Lyon, State of Nevada. 7 8 2. At all relevant times, Plaintiff’s job duties were in furtherance of and/or directly or closely or 9 substantially affected said interstate commerce within the meaning of FELA. 10 3. At all relevant times, Plaintiff was acting within the course and scope of his employment with 11 Defendant. 12 4. On or about December 13, 2018, at Fernley, Nevada, between milepost 273 and 274 on the 13 mainline, Plaintiff was employed as a truck driver by Defendant and was being utilized as a 14 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 the access road. 18 V. 19 The following facts are the issues of fact to be tried and determined at trial: 20 21 1. At the time of the incident, was Plaintiff’s back toward work truck #59720 in order to perform 22 the assigned work? 23 2. At the time of the incident, did Defendant’s employee, foreman A.J. McCoy (“McCoy”), fail to 24 check the valves on the welding hoses on the left side of the truck in the closed cabinet when he 25 went to the right side of work truck #59720 to turn on the tanks that were to be used for welding? 26 27 28 3. At the time of the incident, did foreman McCoy either fail to perform a “torch test” or fail to 1 2 ensure a “torch test” was performed prior to operation of the welding torch? 3 4. At the time of the incident, did Defendant direct Plaintiff to utilize a hydraulic saw operator 4 cutting mainline rail in order to repair rail defects? 5 5. At the time of the incident, did sparks from the hydraulic saw ignite the cabinet on the left side of 6 work truck #59720 that was filled with gas to cause an explosion that blew the doors off the truck? 7 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 the rails covered in hydraulic fluid? 11 7. Did Plaintiff fail to utilize a spark shield prior to using the hydraulic saw to cut rail? 12 8. Did Plaintiff sustain or have aggravated the following injuries? 13 •Right arm, two broken bones; 14 •Severe pain and swelling in right arm; 15 •Puncture wounds on right wrist; •Lower back injury with sciatic pain; 16 •Severe back bruising; 17 •Bilateral rib injury; •Right knee injury and pain; 18 •Severe right leg pain, numbness, bruising and swelling; 19 •Severe bruising and pain to entire right side of body; •Numbness in fingers and right hand; 20 •Injury to right thumb; •Headaches; 21 •Constant ringing in the ears; 22 •Insomnia; •Post-traumatic stress; 23 •Nightmares; 24 •Confusion; •Dizziness; and 25 •Emotional distress, among other issues. 26 9. Did all of the foregoing necessitate Plaintiff receive ongoing medical treatment and physical 27 therapy? 28 10.Have Plaintiff’s life activities been limited as a result of the injuries sustained in the incident 1 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 health prior to the subject incident? 6 12.Did Plaintiff fail to mitigate his damages by failing to seek medical treatment and/or follow 7 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 VI. 12 The following are the issues of law to be tried and determined at trial: 13 The parties do not agree on what the contested issues of law are in the case. 14 15 Plaintiff submits that the contested issues of law are: 16 Did Union Pacific fail to use reasonable care under the circumstances to provide its employees 1. with a reasonably safe place to work and with reasonably safe and suitable tools, machinery, and 17 appliances? 18 2. 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? 3. 19 Defendant submits that the contested issues of law are: 20 21 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 22 498; 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 23 Guaranty Trust Co. of New York (5th Cir. 1976) 528 F.2d 1378 (Jones Act case) (Absent 24 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 25 show negligence).) 26 Is UPRR entitled to an apportionment instruction consistent with Sauer v. Burlington 2. 27 Northern R.R., 106 F.3d 1490 (10th Cir. 1996)? 28 Is Plaintiff’s failure to provide medical progress reports and submit medical expenses to 1 3. UPRR a failure to mitigate his damages under the FELA? 2 VII. 3 (a) The following exhibits are stipulated into evidence in this case and may be so marked by the 4 clerk: 5 Stipulated Stipulated Exhibit Description Party Offering 6 Exhibit No. 1 Report of Personal Injury or Occupational Illness Plaintiff and Defendant 7 5 Plaintiff’s W-2s Plaintiff and Defendant 8 6 Plaintiff’s Photographs of Incident Scene Plaintiff 8 Pictures of the Incident Scene marked as Exhibit Plaintiff 9 3 to Deposition of Plaintiff Christopher Althouse 7 Plaintiff’s Photographs of Plaintiff’s Injuries Plaintiff 10 22 Union Pacific Rule 79.7, “Torch Test” Plaintiff and Defendant 11 53 PowerPoint of Imaging Studies (Exhibit 5 to Dr. Plaintiff and Defendant Garber’s Deposition) 12 103 UPRR Photographs (UP Althouse 436-466) Defendant 104 Oxy-Fuel Equipment Inspection Form (UP Defendant 13 Althouse 467) 14 126 Medical Illustration of Arm, Wrist, and Hand Defendant (Exhibit 3 to Walker Deposition) 15 16 (b) As to the following exhibits, the party against whom the same will be offered objects to 17 their admission on the grounds stated: 18 In addition to the below, Plaintiff incorporates Defendant’s exhibits to which objection has not 19 been made and reserves the right to add additional exhibits. 20 21 Exhibit Exhibit Description Party Offering Non-Offering Party 22 No. Objection(s) 1 Report of Personal Injury or Plaintiff Stipulated 23 Occupational Illness 24 2 Correspondence from Client Plaintiff Relevance. with Railroad Retirement Board Authentication. 25 requesting Dr. Rogina’s report. Hearsay. FRE 401, 403, 801, 901. 26 27 28 3 Plaintiff’s Union Pacific Plaintiff Relevance. 1 Disability Documentation Authentication. 2 Hearsay. FRE 401, 403, 801, 901. 3 4 Plaintiff’s Out-of-Pocket Plaintiff Relevance. Expense Receipts Authentication. 4 Hearsay. FRE 401, 5 403, 801, 901. Failure to disclose. 6 FRCP 26. 7 5 Plaintiff’s W-2s Plaintiff Stipulated 8 6 Plaintiff’s Photographs of Plaintiff Stipulated Incident Scene 9 7 Plaintiff’s Photographs of Plaintiff Stipulated Plaintiff’s Injuries 10 8 Pictures of the Incident Scene Plaintiff Stipulated 11 marked as Exhibit 3 to Deposition of Plaintiff 12 Christopher Althouse 9 Railroad Employee Injury and/or Plaintiff Inadmissible 13 Illness Record marked as Exhibit pursuant to 49 U.S.C. 14 5 to Plaintiff’s Deposition) UP section 20903, 49 Althouse 002214-00215) C.F.R. section 15 225.7(b) 10 Diagram of Incident marked as Plaintiff Relevance. 16 Exhibit 6 to Plaintiff’s Authentication. 17 Deposition Hearsay. FRE 401, 403, 801, 901. 18 11 Medical and billing records Plaintiff Relevance. 19 North Lyon County Fire Dept., Authentication. 20 195 E. Main Street, Fernley, NV Hearsay. FRE 401, 89508 Obtained by Macropro 403, 801, 901. 21 (16 pages) 12 Medical and billing records from Plaintiff Relevance. 22 Reno Orthopaedic Clinic, Justin Authentication. 23 Walker, M.D., 555 N. Arlington Hearsay. FRE 401, Avenue, Reno, NV 89503 403, 801, 901. 24 25 13 Medical and billing records from Plaintiff Relevance. 26 Renown Regional Medical Authentication. Center, 1155 Mill Street, Reno, Hearsay. FRE 401, 27 NV 89502-1576 403, 801, 901. 28 14 Medical and billing records from Plaintiff Relevance. 1 Renown Regional Medical Authentication. 2 Center, Emergency Physicians Hearsay. FRE 401, 403, 801, 901. 3 15 Medical and billing records Plaintiff Relevance. Reno Diagnostic Centers, 590 Authentication. 4 Eureka Avenue, Reno, NV Hearsay. FRE 401, 5 89512 403, 801, 901. 16 Medical and billing records Plaintiff Relevance. 6 Nevada Pain and Spine Authentication. Specialists, 605 Sierra Rose Hearsay. FRE 401, 7 Drive, Suite 4 403, 801, 901. 8 Reno, NV 89511 17 Medical and billing records Reno Plaintiff Relevance. 9 Orthopedic Surgery Center, 350 Authentication. W. 6th Street, 3rd Floor, Reno, Hearsay. FRE 401, 10 NV 89503 403, 801, 901. 11 18 Medical and billing records Plaintiff Relevance. Nevada Orthopedic Anesthesia Authentication. 12 Associates Hearsay. FRE 401, 403, 801, 901. 13 19 Pharmacy and billing records Plaintiff Relevance. 14 from Wal-Mart Pharmacy, 2425 Authentication. E.2nd Street, Reno, NV 89502 Hearsay. FRE 401, 15 403, 801, 901. 20 Pharmacy and billing from Plaintiff Relevance. 16 Olsen Pharmacy, UP Althouse Authentication. 17 005269-005270) Hearsay. FRE 401, 403, 801, 901. 18 21 Medical and billing records from Plaintiff Relevance. Lacy Fettic, M.D., University of Authentication. 19 Nevada, Reno, School of Hearsay. FRE 401, 20 Medicine, Family Medicine 403, 801, 901. Center – Reno, 123 17 St Ste 316 21 Reno, NV 89502 22 Medical and billing records from Plaintiff Relevance. 22 Concentra Medical Center, 255 Authentication. 23 Glendale Avenue, Suite 12, Hearsay. FRE 401, Sparks, NV 89431 403, 801, 901. 24 23 Report of Justin Walker, M.D., Plaintiff Relevance. Reno Orthopaedic Clinic Authentication. 25 Hearsay. FRE 401, 26 403, 801, 901. 27 28 24 Imaging from Reno Diagnostic Plaintiff Relevance. 1 Centers Authentication. 2 Hearsay. FRE 401, 403, 801, 901. 3 25 Imaging from Reno Orthopaedic Plaintiff Relevance. Clinic Authentication. 4 Hearsay. FRE 401, 5 403, 801, 901. 26 Imaging from Renown Regional Plaintiff Relevance. 6 Medical Center Authentication. Hearsay. FRE 401, 7 403, 801, 901. 8 27 MRI Imaging of the Thoracic Plaintiff Relevance. Spine without Contrast taken Authentication. 9 August 21, 2021, at Pueblo Hearsay. FRE 401, Imaging 403, 801, 901. 10 Failure to disclose in 11 discovery. FRCP 26, 37. 12 28 Report of MRI of Thoracic Plaintiff Relevance. Spine without Contrast taken Authentication. 13 August 12, 2021 at Pueblo Hearsay. FRE 401, 14 Imaging 403, 801, 901. 29 Withdrawn Plaintiff 15 30 Billing from Pueblo Imaging Plaintiff Relevance. including but not limited to Authentication. 16 MRIs taken Hearsay. FRE 401, 17 403, 801, 901. Failure to disclose in 18 discovery. FRCP 26, 37. 19 31 Letter from RRB enclosing Plaintiff Relevance. 20 Report of Julius M. Rogina, Authentication. Ph.D., Psychological Evaluation Hearsay. Lacks 21 foundation. Improper Expert Opinion. FRE 22 401, 403, 701, 801, 23 901. 32 Insurance Records from United Plaintiff Relevance. 24 Healthcare Authentication. Hearsay. FRE 401, 25 403, 801, 901. 26 33 Lien from RRB Plaintiff Relevant only post- trial; Relevance. 27 Authentication. 28 Hearsay. FRE 401, 1 403, 801, 901. 2 34 Lien from Hartford Plaintiff Relevant only post- trial; Relevance. 3 Authentication. Hearsay. FRE 401, 4 403, 801, 901. 5 35 Lien from Optum Plaintiff Relevant only post- trial; Relevance. 6 Authentication. Hearsay. FRE 401, 7 403, 801, 901. 8 36 Railroad Retirement Board Plaintiff Relevance. Records (UP Althouse 003741- Authentication. 9 0003801) Hearsay. FRE 401, 403, 801, 901. 10 37 Union Pacific Rule 79.7, “Torch Plaintiff Stipulated 11 Test” 38 Transcript of Recorded Plaintiff Hearsay. FRE 801. 12 Interview of Aaron “A.J.” McCoy (UP Althouse 000702- 13 713) 14 39 Transcript of Recorded Plaintiff Hearsay. FRE 801. Interview of Josh Cornett (UP 15 Althouse 000702-713) 40 CV of Mark Burns, BSME, JD, Plaintiff Demonstrative only. 16 GC, CBI, CXLT, CPSI Hearsay. FRE 801. 17 41 Expert Report of Mark Burns, Plaintiff Relevance. BSME, JD, GC, CBI, CXLT, Authentication. 18 CPSI Hearsay. Lacks foundation. Improper 19 Expert Opinion. FRE 20 401, 403, 701, 801, 901. 21 42 CV of Paul Broadus, MA Plaintiff Demonstrative only. Hearsay. FRE 801. 22 43 Expert Report of Paul Broadus, Plaintiff Relevance. 23 M.A. Authentication. Hearsay. Lacks 24 foundation. Improper Expert Opinion. FRE 25 401, 403, 701, 801, 26 901. 27 28 44 CV of Colby Young, M.D., Plaintiff Demonstrative only. 1 M.B.A. Hearsay. FRE 801. 2 3 45 Expert Report of Colby Young, Plaintiff Relevance. M.D., M.B.A. Authentication. 4 Hearsay. Lacks 5 foundation. Improper Expert Opinion. FRE 6 401, 403, 701, 801, 901. 7 46 Medical Illustrations of the Arm, Plaintiff Demonstrative only. 8 Wrist and Hand Hearsay. FRE 801. Not produced so 9 Defendants reserves the right to make 10 other objections at 11 trial. 47 Anatomical Illustrations of the Plaintiff Demonstrative only. 12 Arm, Wrist and Hand Hearsay. FRE 801. Not produced so 13 Defendants reserves 14 the right to make other objections at 15 trial. 48 Medical Illustration of Arm, Plaintiff Stipulate 16 Wrist, and Hand (Exhibit 3 to 17 Walker Deposition) 49 Expert Report of Jason Garber, Plaintiff Relevance. 18 M.D. Authentication. Hearsay. Lacks 19 foundation. Improper 20 Expert Opinion. FRE 401, 403, 701, 801, 21 901. 50 Expert File of Jason Garber, Plaintiff Relevance. 22 M.D. Produced as Report Authentication. 23 Viewer Hearsay. Lacks foundation. Improper 24 Expert Opinion. FRE 401, 403, 701, 801, 25 901. 26 27 28 51 Medical Illustrations of the Plaintiff Demonstrative only. 1 Lumbar Spine Hearsay. FRE 801. 2 Not produced so Defendants reserves 3 the right to make other objections at 4 trial. 5 52 Anatomical Illustrations of the Plaintiff Demonstrative only. Lumbar Spine Hearsay. FRE 801. 6 Not produced so Defendants reserves 7 the right to make 8 other objections at trial. 9 53 PowerPoint of Imaging Studies Plaintiff Stipulate (Exhibit 5 to Dr. Garber’s 10 Deposition) 11 54 Plaintiff’s Response to Plaintiff Relevance. Hearsay. Interrogatories, Set One FRE 801. 12 55 Plaintiff’s Response to Request Plaintiff Relevance. Hearsay. for Production, Set One FRE 401, 801. 13 56 Plaintiff’s Response to Request Plaintiff Relevance. Hearsay. 14 for Production, Set Two FRE 401, 801. 57 Plaintiff’s Response to Request Plaintiff Relevance. Hearsay. 15 for Production, Set Three FRE 401, 801. 58 Plaintiff’s Response to Request Plaintiff Relevance. Hearsay. 16 for Production, Set Four FRE 401, 801. 17 59-99 Plaintiff Reserves Plaintiff 18 19 100 Althouse HR Report (UP Defendant Relevance. 20 Althouse 364-390) Authentication. Hearsay. FRE 401, 21 403, 801, 901. 22 23 101 Althouse Human Factors Report Defendant Relevance. (UP Althouse 1-16) Authentication. 24 Hearsay. FRE 401, 403, 801, 901. 25 102 Efficiency Test Report (UP Defendant Relevance. 26 Althouse 17) Authentication. Hearsay. FRE 401, 27 403, 801, 901. 28 103 UPRR Photographs (UP Defendant Stipulate 1 Althouse 436-466) 2 104 Oxy-Fuel Equipment Inspection Defendant Stipulate Form (UP Althouse 467) 3 105 Oxy-Fuel Safety Alert (UP Defendant Relevance. Althouse 468) Authentication. 4 Hearsay. FRE 401, 5 403, 801, 901. 106 UPRR General Code of Defendant Relevance. 6 Operating Rules, effective Authentication. 1/6/18 (UP Althouse 1020-1260) Hearsay. FRE 401, 7 403, 801, 901. 8 107 UPRR Safety Rules, effective Defendant Relevance. 9/19/18 (UP Althouse 1261- Authentication. 9 1475) Hearsay. FRE 401, 403, 801, 901. 10 108 UPRR Track Welding Rules and Defendant Relevance. 11 Procedures (UP Althouse 787- Authentication. 1019) Hearsay. FRE 401, 12 403, 801, 901. 13 . 14 109 UPRR Fire Prevention Plan (UP Defendant Relevance. Althouse 715-752) Authentication. 15 Hearsay. FRE 401, 403, 801, 901. 16 110 Althouse Medical Comments Defendant Relevance. 17 (UP Althouse 776-781) Authentication. Hearsay. FRE 401, 18 403, 801, 901. 111 Althouse EAP File (UP Althouse Defendant Relevance. 19 4596-4538) Authentication. 20 Hearsay. FRE 401, 403, 801, 901. 21 112 Althouse Diagram (Exhibit 6 to Defendant Relevance. Althouse Deposition) Authentication. 22 Hearsay. FRE 401, 23 403, 801, 901. 24 113 June 20, 2020 Letter from UPRR Defendant Relevance. Workforce Resources to Authentication. 25 Althouse (Exhibit 11 to Althouse Hearsay. FRE 401, 26 Deposition) 403, 801, 901. 27 28 114 May 30, 2019 Medical Defendant 1 Examination Questionnaire 2 (Exhibit 12 to Althouse Deposition) 3 115 Chronological Pre-Incident Pain Defendant 4 Questionnaires and Diagrams 5 from Nevada Pain & Spine (Exhibit 13 to Althouse 6 Deposition) 116 Chronological Post-Incident Defendant 7 Pain Questionnaires and 8 Diagrams from Nevada Pain & Spine (Exhibit 14 to Althouse 9 Deposition) 117 Nevada Pain & Spine Defendant 10 Encounters (Exhibit 2 to Berman 11 Deposition) 118 Medical Records for Christopher Defendant Relevance. 12 Althouse in Chronological Order Authentication. (Various subpoenaed records) Hearsay. FRE 401, 13 403, 801, 901. 14 15 119 Walmart Pharmacy Records (UP Defendant Althouse 4070-4071) 16 120 List of Medical Expenses paid Defendant . Relevance. 17 by UPRR and/or UPRR Authentication. Provided Healthcare Plan Hearsay. FRE 401, 18 403, 801, 901. 121 Imaging Studies of Althouse’s Defendant 19 Right Forearm 20 122 Imaging Studies of Althouse’s Defendant Lumbar Spine 21 123 Imaging Studies of Althouse’s Defendant Cervical Spine 22 124 Imaging Studies of Althouse’s Defendant 23 Right Hip 125 PowerPoint of Imaging Studies Defendant Stipulate 24 (Exhibit 5 to Dr. Garber’s Deposition) 25 126 Medical Illustration of Arm, Defendant Stipulate 26 Wrist, and Hand (Exhibit 3 to Walker Deposition) 27 28 127 Vocational Report filled out by Defendant . 1 Althouse (UP Althouse 4925- 2 4933) 128 CV for Michael Klein, M.D. Defendant Hearsay. FRE 801. 3 129 Reports and Medical Records Defendant Relevance. Review summaries prepared by Authentication. 4 Michael Klein, M.D. (various Hearsay. Lacks 5 dates) foundation. Improper Expert Opinion. FRE 6 401, 403, 701, 801, 901. 7 130 Medical Illustrations of the Defendant Hearsay. FRE 801. 8 Upper Extremity Lacks foundation. FRE 901 9 131 Anatomical Model of the Upper Defendant Hearsay. FRE 801. 10 Extremity Lacks foundation. 11 FRE 901 12 132 Medical Illustrations of the Defendant Hearsay. FRE 801. Lumbar Spine Lacks foundation. 13 FRE 901 14 133 Anatomical Model of the Defendant Hearsay. FRE 801. 15 Lumbar Spine Lacks foundation. FRE 901 16 17 134 Medical Illustration of the Defendant Hearsay. FRE 801. Cervical Spine Lacks foundation. 18 FRE 901 19 135 Anatomical Model of the Defendant Hearsay. FRE 801. 20 Cervical Spine Lacks foundation. FRE 901 21 22 23 136 Medical Illustration of the Hip Defendant Hearsay. FRE 801. 24 Lacks foundation. FRE 901 25 26 27 28 137 Anatomical Model of the Hip Defendant Hearsay. FRE 801. 1 Lacks foundation. 2 FRE 901 3 138 CV for Vincent Filoteo, PhD. Defendant Hearsay. Relevance. Authentication. FRE 4 401, 403, 801, 901 5 139 Neuropsychological Evaluation Defendant Relevance. prepared by Vincent Filoteo, Authentication. 6 PhD dated August 25, 2021 Hearsay. Lacks foundation. Improper 7 Expert Opinion. FRE 8 401, 403, 701, 801, 901. 9 10 11 12 140 Supplemental Report of Vincent Defendant Relevance. Filoteo, PhD dated February 24, Authentication. 13 2022 Hearsay. Lacks 14 foundation. Improper Expert Opinion. FRE 15 401, 403, 701, 801, 901. 16 141 CV for Amy Koellner Defendant Hearsay. Relevance. 17 Authentication. FRE 401, 403, 801, 901 18 142 Vocational Evaluation Report by Defendant Relevance. Amy Koellner dated February Authentication. 19 24, 2022 Hearsay. Lacks 20 foundation. Improper Expert Opinion. FRE 21 401, 403, 701, 801, 901. 22 23 143 Rebuttal Report by Amy Defendant Relevance. Koellner dated March 24, 2022 Authentication. 24 Hearsay. Lacks foundation. Improper 25 Expert Opinion. FRE 26 401, 403, 701, 801, 901. 27 28 1 144 CV for Peter Wrobel, Defendant Hearsay. Relevance. 2 CPA/ABV, CFE Authentication. FRE 401, 403, 801, 901 3 145 Report of Peter Wrobel dated Defendant Relevance. February 24, 2022 Authentication. 4 Hearsay. Lacks 5 foundation. Improper Expert Opinion. FRE 6 401, 403, 701, 801, 901. 7 8 146 Rebuttal Report of Peter Wrobel Defendant Relevance. dated March 25, 2022 Authentication. 9 Hearsay. Lacks foundation. Improper 10 Expert Opinion. FRE 11 401, 403, 701, 801, 901. 12 147 CV for David Rondinone, PhD, Defendant Hearsay. Relevance. 13 P.E Authentication. FRE 14 401, 403, 801, 901 148 Report of David Rondinone, Defendant Relevance. 15 dated February 24, 2022 Authentication. Hearsay. Lacks 16 foundation. Improper 17 Expert Opinion. FRE 401, 403, 701, 801, 18 901. 19 20 (c) Electronic exhibits for purposes of jury deliberation: 21 Exhibit Exhibit Description Party Offering Non-Offering Party No. Objection(s) 22 23 24 25 26 27 28 (d) Depositions: 1 2 (i) Plaintiff will offer the following depositions: 3 Name Page/Line Party Against Whom Offered 4 A.J. McCoy 5:12-5:16 5 7:21-10:21 11:11-16:2 6 17:6-18:18 19:23-20:13 7 21:6-26:18 8 27:3-30:21 31:20-33:16 9 34:24-47:11 47:23-61:25 10 Steven E. Berman, M.D. 5:15-5:20 11 6:19-6:25 7:4-10:22 12 11:3-11:16 11:18-12:6 13 14:4-14:7 14 14:19-14:23 17:12-17:19 15 20:6-21:6 21:10-22:11 16 23:19-24:16 17 25:24-27:10 28:5-29:13 18 30:2-31:13 32:7-35:17 19 36:3-37:14 38:14-38:18 20 39:15-40:13 21 40:19-42:13 43:1-44:10 22 44:15-44:17 44:22-45:14 23 47:3-48:17 24 50:3-52:15 53:3-53:19 25 54:19-56:25 60:14-61:25 26 65:3-65:6 27 65:21-66:2 67:2-68:24 28 69:16-72:9 1 73:3-81:24 2 82:11-86:11 87:19-96:10 3 102:7-103:8 105:23-108:14 4 Lacy Fettic, M.D. 5:18-6:4 5 9:4-9:8 10:24-11:2 6 11:8-13:23 14:7-14:17 7 15:21-16:8 8 17:24-20:6 20:22-21:12 9 21:25-23:2 23:20-24:3 10 25:17-26:22 11 27:18-28:15 29:3-29:5 12 29:13-29:17 33:19-35:12 13 36:5-36:20 14 40:11-42:7 42:19-44:5 15 45:22-46:2 46:25-47:5 16 48:21-49:21 52:23-53:23 17 55:14-56:13 18 56:25-57:4 58:1-58:2 19 58:13-58:14 58:19-58:22 20 60:12-60:22 21 63:13-64:2 65:25-66:4 22 66:18-67:1 68:23-69:9 23 74:6-74:17 24 74:20-75:14 79:20-80:14 25 Julius M. Rogina, Ph.D. 7:13-8:7 8:19-9:9 26 10:2-10:9 27 10:19-11:13 14:25-15:2 28 16:8-17:12 1 18:7-23:6 2 23:14-24:14 25:8-25:16 3 28:7-30:18 30:24-36:9 4 36:17-39:23 5 40:11-41:14 42:1-51:21 6 52:8-54:5 56:6-58:25 7 61:13-64:1 8 72:19-75:2 75:15-76:1 9 79:25-80:25 81:24-82:25 10 93:12-94:13 11 96:22-97:16 Elizabeth Kiehn, APRN 5:9-5:14 12 7:13-7:17 8:2-8:5 13 10:7-13:8 14 15:4-15:15 17:1-17:16 15 18:1-18:2 19:1-19:12 16 22:9-24:20 27:15-27:20 17 28:1-30:40 18 31:1-31:4 32:3-33:11 19 34:14-35:16 39:1-39:13 20 40:13-42:2 21 43:4-43:18 47:1-49:17 22 50:1-50:11 50:22-52:3 23 55:9-56:20 24 73:12-74:2 75:12-75:25 25 79:16-81:5 81:14-81:15 26 81:23-84:8 27 84:15-86:2 87:24-89:5 28 90:1-90:15 1 92:9-93:19 2 94:7-94:11 95:8-95:23 3 96:8-97:4 97:24-98:25 4 103:8-103:17 5 Justin Walker, M.D. 8:13-11:12 11:18-14:2 6 15:1-15:15 15:23-18:5 7 19:5-19:19 8 20:6-20:13 20:19-20:23 9 21:1-21:10 25:18-25:21 10 26:3-31:3 11 31:21-34:9 34:21-40:10 12 41:16-52:10 52:21-66:18 13 67:24-79:9 14 81:15-82:16 84:21-85:25 15 87:3-89:7 92:22-93:1 16 93:14-93:17 94:11-100:5 17 100:23-111:25 18 112:16-114:10 115:2-117:4 19 20 (ii) Defendant will offer the following depositions: 21 Name Page/Line Party Against Whom 22 Offered 23 Dr. Steven Berman 5:5-18, Plaintiff 6:19-9:19 24 10:12-11:13 12:13-13:10 25 13:17-14:11 14:20-16:7 26 16:12-17:19 27 28 18:16-19:23 (stop after “That is 1 correct.”) is it 19:25? 2 20:1-12 20:14-21:6 3 21:10-23:12 23:19-24:16 4 24:24-26:1 5 26:23-27:7 27:9-10 6 28:5-20 29:21-32:16 7 34:9-18 8 36:3-37:3 38:4-42:1 9 42:20-43:9 43:21-46:16 10 47:3-49:6 11 50:3-52:6 52:8-53:7 12 53:9-53:15 53:17-54:17 13 54:19-55:7 55:9-20 14 55:22-56:3 15 56:5-10 56:24-58:7 16 58:21-23 58:25-61:25 17 62:4-22 18 62:24-63:15 64:12-65:6 19 75:8-11 76:16-21 20 90:4-91:25 21 105:5-22 107:24-108:4 22 108:5-14 Dr. Lacy Fettic 5:9-24 Plaintiff 23 10:11-20 24 11:8-13:16 14:13-24 25 15:21-22 16:5-8 26 17:24-19:21 27 20:7-21:2 29:3-25 28 33:19-34:23 1 37:22-38:7 2 41:4-42:8 43:10-14 3 44:23-45:6 46:23-47:16 4 48:21-49:8 5 51:5-8 57:11-25 6 78:8-21 Elizabeth Kiehn, APRN 5:3-6 Plaintiff 7 8:7-13 8 10:7-17:12 18:1-19:12 9 20:1-26:13 27:2-38:10 10 38:13-43:24 11 44:2-46:14 47:1-51:12 12 51:20-53:11 53:13-63:3 13 64:2-6 14 64:8-11 64:13-21 15 64:23-25 65:2-7 16 65:9-14 65:16-18 17 65:20-21 18 66:2-3 66:5-15 19 66:17-19 66:21-67:1 20 67:3-10 21 67:12-14 67:18-68:9 22 68:11-17 69:13-74:2 23 75:17-77:16 24 83:2-25 107:6-21 25 107:23-108:11 Julius M. Rogina, Ph.D. 7:7-8:1 Plaintiff 26 23:17-24:11 27 25:17-26:2 28:23-29:7 28 30:2-18 1 60:14-61:2 2 61:9-12 63:1-12 3 63:14-15 66:3-6 4 70:7-71:4 5 71:15-75:7 75:10-76:5 6 76:22-78:7 81:12-82:9 7 82:20-25 8 83:9-84:5 84:14-25 9 85:5-10 85:13-91:12 10 91:15-93:9 11 93:12-94:6 94:11-95:1 12 104:10-21. Justin Walker, M.D. 7:6-8 Plaintiff 13 8:18-23 14 9:2-11:12 11:22-14:2 15 16:3-20:13 21:1-25:4 16 25:18-40:10 42:22-63:6 17 63:9-72:3 18 72:7-79:9 80:11-82:16 19 83:14-18 84:6-10 20 84:21-86:7 21 86:16-18 86:21-90:6 22 90:8-13 90:15-18 23 91:7-8 24 91:10-21 92:1-93:1 25 117:14-118:14 26 27 (e) Objections to depositions: 28 1 (i) Plaintiff objects to Defendant’s depositions as follows: 2 Name Page/Line & Objections 3 Steven Berman, M.D. Objection to 14:8-11: Calls for speculation (based on testimony 4 at 14:13-19). 5 Objection to 14:24-16:20: Relevance; probative value 6 substantially outweighed by unfair prejudice, confusing the issues, misleading the jury, undue delay and wasting time 7 8 Objection to 19:1-19:17: Relevance; probative value substantially outweighed by unfair prejudice, confusing the 9 issues, misleading the jury, undue delay and wasting time 10 Objection to 20:6-12: Relevance; probative value substantially 11 outweighed by unfair prejudice, confusing the issues, misleading the jury, undue delay and wasting time; compound 12 Objection to 20:14-21:6: Relevance; probative value 13 substantially outweighed by unfair prejudice, confusing the 14 issues, misleading the jury, undue delay and wasting time 15 Objection to 22:21-23”12: Relevance; probative value substantially outweighed by unfair prejudice, confusing the 16 issues, misleading the jury, undue delay and wasting time 17 Objection to 20:6-12: Relevance; probative value substantially 18 outweighed by unfair prejudice, confusing the issues, misleading the jury, undue delay and wasting time 19 Objection to 20:6-12: Relevance; probative value substantially 20 outweighed by unfair prejudice, confusing the issues, 21 misleading the jury, undue delay and wasting time; question with no answer (25:24-26:1) 22 Objection to 26:23-27:7: Relevance; probative value 23 substantially outweighed by unfair prejudice, confusing the 24 issues, misleading the jury, undue delay and wasting time 25 Objection to 27:9-10: Relevance; probative value substantially outweighed by unfair prejudice, confusing the issues, 26 misleading the jury, undue delay and wasting time. 27 28 Objection to 29:21-29:25: Relevance; probative value 1 substantially outweighed by unfair prejudice, confusing the 2 issues, misleading the jury, undue delay and wasting time; vague and ambiguous; question misstates the law as to 3 FELA/“work-related injury”; reference to Workers’ Compensation applicability issue 4 5 Objection to 31:14-32:6: Relevance; probative value substantially outweighed by unfair prejudice, confusing the 6 issues, misleading the jury, undue delay and wasting time 7 Objection to 51:2-3 “and the obvious litigation that goes along 8 with this”: Relevance; probative value substantially outweighed by unfair prejudice, confusing the issues, misleading the jury, 9 undue delay and wasting time; hearsay 10 Objection to 52:3-6 and 52:8-53:2: Relevance; probative value 11 substantially outweighed by unfair prejudice, confusing the issues, misleading the jury, undue delay and wasting time; 12 hearsay; misstates the testimony 13 Objection to 53:12-15: Relevance; probative value substantially outweighed by unfair prejudice, confusing the issues, 14 misleading the jury, undue delay and wasting time; vague and 15 ambiguous; compound; leading 16 17 Objection to 53:17-19: Relevance; probative value substantially 18 outweighed by unfair prejudice, confusing the issues, misleading the jury, undue delay and wasting time; vague and 19 ambiguous; nonresponsive 20 Objection to 55:5-14: Relevance; probative value substantially 21 outweighed by unfair prejudice, confusing the issues, misleading the jury, undue delay and wasting time; vague and 22 ambiguous; leading; nonresponsive 23 Objection to 58:21-23: Relevance; probative value substantially 24 outweighed by unfair prejudice, confusing the issues, misleading the jury, undue delay and wasting time; compound; 25 vague and ambiguous; calls for speculation; lack of foundation 26 Objection to 62:19-63:4: Speculation; relevance; probative 27 value substantially outweighed by unfair prejudice, confusing 28 the issues, misleading the jury, undue delay and wasting time; 1 improper expert testimony; lacks foundation. 2 Objection to 105:5:22: Relevance; probative value substantially 3 outweighed by unfair prejudice, confusing the issues, misleading the jury, undue delay and wasting time. 4 5 Objection to 105:5:22: Relevance; probative value substantially outweighed by unfair prejudice, confusing the issues, 6 misleading the jury, undue delay and wasting time. Dr. Lacy Fettic Objection to 14:18-24: Relevance; probative value substantially 7 outweighed by unfair prejudice, confusing the issues, 8 misleading the jury, undue delay and wasting time; calls for speculation. 9 Objection to 19:17-20:6: Relevance; probative value 10 substantially outweighed by unfair prejudice, confusing the 11 issues, misleading the jury, undue delay and wasting time; speculative; lack of foundation. 12 Objection to 37:22-38:7: Relevance; probative value 13 substantially outweighed by unfair prejudice, confusing the 14 issues, misleading the jury, undue delay and wasting time. 15 Objection to 44:23-45:6: Relevance; probative value substantially outweighed by unfair prejudice, confusing the 16 issues, misleading the jury, undue delay and wasting time. 17 18 Elizabeth Kiehn, APRN Objection to 13:18-14:13: Relevance; probative value substantially outweighed by unfair prejudice, confusing the 19 issues, misleading the jury, undue delay and wasting time. 20 Objection to 20:1-21:4: Relevance; probative value substantially 21 outweighed by unfair prejudice, confusing the issues, misleading the jury, undue delay and wasting time. 22 Objection to 36:2-15: Relevance; probative value substantially 23 outweighed by unfair prejudice, confusing the issues, 24 misleading the jury, undue delay and wasting time. 25 Objection to 38:8-10: Relevance; probative value substantially outweighed by unfair prejudice, confusing the issues, 26 misleading the jury, undue delay and wasting time; compound; 27 calls for speculation; calls for hearsay. 28 Objection to 38:13-14: Relevance; probative value substantially 1 outweighed by unfair prejudice, confusing the issues, 2 misleading the jury, undue delay and wasting time; compound; speculation; hearsay. 3 Objection to 43:19-24: Relevance; probative value substantially 4 outweighed by unfair prejudice, confusing the issues, 5 misleading the jury, undue delay and wasting time; compound; calls for speculation. 6 Objection to 44:2-45:10: Relevance; probative value 7 substantially outweighed by unfair prejudice, confusing the 8 issues, misleading the jury, undue delay and wasting time; compound; calls for speculation. 9 Objection to 52:23-53:11: Relevance; probative value 10 substantially outweighed by unfair prejudice, confusing the 11 issues, misleading the jury, undue delay and wasting time; compound. 12 Objection to 53:13-14: Relevance; probative value substantially 13 outweighed by unfair prejudice, confusing the issues, misleading the jury, undue delay and wasting time; compound. 14 15 Objection to 53:24-60:4: Relevance; probative value substantially outweighed by unfair prejudice, confusing the 16 issues, misleading the jury, undue delay and wasting time; compound. 17 18 Objection to 61:10-63:3: Relevance; probative value substantially outweighed by unfair prejudice, confusing the 19 issues, misleading the jury, undue delay and wasting time; compound. 20 21 Objection to 64:2-6: Relevance; probative value substantially outweighed by unfair prejudice, confusing the issues, 22 misleading the jury, undue delay and wasting time. 23 Objection to 64:8-11: Relevance; probative value substantially 24 outweighed by unfair prejudice, confusing the issues, misleading the jury, undue delay and wasting time. 25 Objection to 64:13-21: Relevance; probative value substantially 26 outweighed by unfair prejudice, confusing the issues, 27 misleading the jury, undue delay and wasting time. 28 Objection to 64:23-25: Relevance; probative value substantially 1 outweighed by unfair prejudice, confusing the issues, 2 misleading the jury, undue delay and wasting time. 3 Objection to 65:2-7: Relevance; probative value substantially outweighed by unfair prejudice, confusing the issues, 4 misleading the jury, undue delay and wasting time. 5 Objection to 65:9-14: Relevance; probative value substantially 6 outweighed by unfair prejudice, confusing the issues, misleading the jury, undue delay and wasting time. 7 8 Objection to 65:16-18: Relevance; probative value substantially outweighed by unfair prejudice, confusing the issues, 9 misleading the jury, undue delay and wasting time. 10 Objection to 65:20-21: Relevance; probative value substantially 11 outweighed by unfair prejudice, confusing the issues, misleading the jury, undue delay and wasting time. 12 Objection to 66:2-3: Relevance; probative value substantially 13 outweighed by unfair prejudice, confusing the issues, misleading the jury, undue delay and wasting time. 14 15 Objection to 66:5-15: Relevance; probative value substantially 16 outweighed by unfair prejudice, confusing the issues, misleading the jury, undue delay and wasting time. 17 18 Objection to 66:17-19: Relevance; probative value substantially outweighed by unfair prejudice, confusing the issues, 19 misleading the jury, undue delay and wasting time. 20 Objection to 66:21-67:1: Relevance; probative value 21 substantially outweighed by unfair prejudice, confusing the issues, misleading the jury, undue delay and wasting time. 22 Objection to 67:3-10: Relevance; probative value substantially 23 outweighed by unfair prejudice, confusing the issues, 24 misleading the jury, undue delay and wasting time. 25 Objection to 67:12-14: Relevance; probative value substantially outweighed by unfair prejudice, confusing the issues, 26 misleading the jury, undue delay and wasting time; speculation; 27 lack of foundation. 28 Objection to 67:18-68:9: Relevance; probative value 1 substantially outweighed by unfair prejudice, confusing the 2 issues, misleading the jury, undue delay and wasting time; speculation; lack of foundation. 3 Objection to 69:19-70:6: Relevance; probative value 4 substantially outweighed by unfair prejudice, confusing the 5 issues, misleading the jury, undue delay and wasting time. 6 Julius M. Rogina, Ph.D. Objection to 61:9-12: Relevance; probative value substantially 7 outweighed by unfair prejudice, confusing the issues, 8 misleading the jury, undue delay and wasting time; calls for speculation 9 Objection to70:7-71:4- Relevance; probative value substantially 10 outweighed by unfair prejudice, confusing the issues, 11 misleading the jury, undue delay and wasting time; calls for speculation; calls for hearsay. 12 Objection to 71:15-75:7- Relevance; probative value 13 substantially outweighed by unfair prejudice, confusing the 14 issues, misleading the jury, undue delay and wasting time; calls for speculation; calls for hearsay. 15 Objection to 81:12-23- Relevance; probative value substantially 16 outweighed by unfair prejudice, confusing the issues, misleading the jury, undue delay and wasting time; calls for 17 speculation; calls for hearsay. 18 Objection to 83:9-84:5- Relevance; probative value substantially outweighed by unfair prejudice, confusing the issues, 19 misleading the jury, undue delay and wasting time; calls for speculation; calls for hearsay. 20 21 Objection to 84:14-25: Relevance; probative value substantially outweighed by unfair prejudice, confusing the issues, 22 misleading the jury, undue delay and wasting time; calls for speculation; calls for hearsay. 23 24 Objection to 85:5:10: Relevance; probative value substantially outweighed by unfair prejudice, confusing the issues, 25 misleading the jury, undue delay and wasting time; calls for speculation; calls for hearsay. 26 27 Objection to 85:13-91:12- Relevance; probative value substantially outweighed by unfair prejudice, confusing the 28 issues, misleading the jury, undue delay and wasting time; calls 1 for speculation; calls for hearsay. 2 Objection to 91:15-93:9: Relevance; probative value 3 substantially outweighed by unfair prejudice, confusing the issues, misleading the jury, undue delay and wasting time; calls 4 for speculation; calls for hearsay. 5 Objection to 94:11-95:1: Relevance; probative value 6 substantially outweighed by unfair prejudice, confusing the issues, misleading the jury, undue delay and wasting time; calls 7 for speculation; calls for hearsay. 8 Objection to 104:10-21: Relevance; probative value 9 substantially outweighed by unfair prejudice, confusing the issues, misleading the jury, undue delay and wasting time; calls 10 for speculation; calls for hearsay. 11 Justin Walker, M.D. Objection to 90:4-6: Compound; overbroad; vague and 12 ambiguous. 13 Objection to 90:8-13: Compound; overbroad; vague and 14 ambiguous; speculative; lacks foundation. 15 Objection to 90:15-18: Compound; overbroad; vague and ambiguous; misleading; lacks foundation. 16 Objection to 91:7-8: Compound; overbroad; vague and 17 ambiguous; misleading; calls for speculation. 18 Objection to 90:15-18: 19 Speculation; lacks foundation. 20 Objection to 117:14-18: Relevance; probative value 21 substantially outweighed by unfair prejudice, confusing the issues, misleading the jury, undue delay and wasting time; 22 speculation; lack of foundation; compound. 23 24 (ii) Defendant objects to Plaintiff’s depositions as follows: 25 Name Page/Line & Objections 26 27 28 A.J. McCoy General objection to use of McCoy’s deposition transcript at 1 trial as he is not an officer, director, managing agent or designee 2 for purpose of FRCP 32(a)(3). 5:12-5:16: Relevance. FRE 401. 3 7:21-8:12: Relevance. FRE 401. 19:23-20:13 and Exhibit 1: Relevance, hearsay. FRE 401, 801. 4 21:6-18: Relevance, more prejudicial than probative. FRE 401, 5 403. 35:12-18: Lacks foundation, speculation. FRE 601-602. 6 Opinion on an ultimate issue. FRE 704. 36:15-20: Lacks foundation, speculation. FRE 601-602. 7 42:23-43:10: Lacks foundation, speculation, improper lay 8 opinion, unqualified and improper expert opinion. FRE 601- 602, 701-702. 9 43:12-21: Hearsay. Speculation. FRE 601-601, 801. 43:23-44:3: Lacks foundation, speculation, improper lay 10 opinion, unqualified and improper expert opinion. FRE 601- 11 602, 701-702. 44:5-8: Hearsay. Speculation. FRE 601-601, 801. 12 44:23-45:7: Hearsay. Speculation. FRE 601-601, 801. 45:13-17: Hearsay. Speculation. FRE 601-601, 801. 13 48:21-49:11: Lacks foundation, speculation, improper lay opinion. FRE 601-602, 701. 14 51:4-12: Relevance. FRE 401. 15 53:8-13: Lacks foundation, speculation, improper lay opinion, unqualified and improper expert opinion. Hearsay. FRE 601- 16 602, 701-702, 801. 54:23-55:10: Hearsay. FRE 801. 17 55:12-57:9: Lacks foundation, speculation, improper lay 18 opinion, unqualified and improper expert opinion. Hearsay. Subsequent remedial measures. FRE 407, 601-602, 701-702, 19 801. 58:2-6: Lacks foundation, speculation, improper lay opinion, 20 unqualified and improper expert opinion. FRE 601-602, 701- 21 702. Counter designate: 62:5-64:1. 22 23 Steven E. Berman, M.D. 26:2: Remove objection. 24 28:21-13: Reference to workers compensation and insurance is irrelevant and more prejudicial than probative. FRE 401, 403. 25 32:17-34:8: Lacks foundation, speculation, unqualified and improper expert opinion. FRE 601-602, 701-702. 26 34:19-17: Reference to insurance and losing his insurance is 27 irrelevant and more prejudicial than probative. FRE 401, 403. Question at 35:17 does not include the answer. 28 37:4-14: Lacks foundation, speculation, unqualified and 1 improper expert opinion. FRE 601-602, 701-702. 2 67:2-68:16: Reference to workers compensation and FELA irrelevant and more prejudicial than probative. Speculation 3 regarding what Mr. Althouse believed. FRE 401, 403, 601-602. 71:9-15: Relevance and more prejudicial than probative. FRE 4 401, 403. 5 71:22-72:9: Lacks foundation, speculation. FRE 601-602. 73:24-74:14: Lacks foundation, speculation. FRE 601-602. 6 74:15-75:7: Lacks foundation, speculation, unqualified and improper expert opinion. FRE 601-602, 701-702. 7 75:12-76:15: Lacks foundation, speculation, unqualified and 8 improper expert opinion. FRE 601-602, 701-702. 77:6-79:23: Lacks foundation, speculation, unqualified and 9 improper expert opinion. FRE 601-602, 701-702. 83:1-4: Lacks foundation, speculation. FRE 601-602. 10 88:14-23: Lacks foundation, speculation, unqualified and 11 improper expert opinion. FRE 601-602, 701-702. 92:1-95:15: Lacks foundation, speculation, unqualified and 12 improper expert opinion. FRE 601-602, 701-702. 96:7-10: Improper character evidence. Relevance. More 13 prejudicial than probative. FRE 401, 403, 404. 105:23-107:23: Lacks foundation, speculation, unqualified and 14 improper expert opinion. FRE 601-602, 701-702. 15 Lacy Fettic, M.D. 13:17-22: No question and answer. 19:22-23 & 20:1-2: Objections should be removed. 16 22:20-23: Objections should be removed. 26:16-17: Objections should be removed. 17 27:1-2 & 28:10-12: Objections should be removed. 18 43:23-44:5: Objections should be removed and no substantive answer given. 19 45:23-46:2: No substantive answer given. Line 2 is not part of the answer. 20 52:23-53:23, 55:14-56:13, 56:25-57:4: Plaintiff has conceded no 21 claim is being made for traumatic brain injury so this testimony is irrelevant and prejudicial. No foundation, unqualified and 22 improper expert opinion. FRE 401, 403, 701. 55:25-56:1: Objection should be removed. 23 74:6-17, 74:20-75:14: Plaintiff has conceded no claim is being 24 made for traumatic brain injury so this testimony is irrelevant and prejudicial. No foundation, unqualified and improper 25 expert opinion. FRE 401, 403, 701. 79:20-80:14: No foundation, unqualified and improper expert 26 opinion. 27 Elizabeth Kiehn, APRN 85:15-86:2: Lacks foundation, speculation. FRE 601-602. 28 88:16-89:5: Relevance, undue consumption of time. FRE 401, 1 403. 2 93:14-19: Continue to 93:20-22 under the rule of completeness. 94:7-11: No substantive response to question posed. 3 Justin Walker, M.D. 15:1-15: Hearsay. FRE 801. 41:16-42:21: Relevance. FRE 401. 4 94:15-97:12: Lacks foundation, speculation, improper opinion. 5 FRE 601-602, 702. 97:13-98:13: Lacks foundation, speculation. FRE 601-602. 6 99:25-100:5: Relevance. FRE 401. Medical expenses paid by railroad employer or employer paid medical are not recoverable 7 under the FELA. 45 U.S.C. § 55, Folkestad v. Burlington 8 Northern, Inc., 813 F.2d 1377 (9th Cir. 1987). 100:23-101:5: Hearsay. FRE 801. 9 107:11-108:10: Lacks foundation, speculation, improper

opinion. FRE 601-602, 702. 10 108:16-23: Relevance. More prejudicial than probative. Lacks 11 foundation, speculation, improper opinion. FRE 401, 403, 601- 602, 702. 12 108:24-109:3: Lacks foundation, speculation, improper opinion. FRE 601-602, 702. 13 109:10-111:5: Lacks foundation, speculation, improper opinion. 14 FRE 601-602, 702. 112:16-113:8: Lacks foundation, speculation, improper opinion. 15 FRE 601-602, 702. 113:19-117:4: Hearsay. FRE 801. 16 17 VIII. 18 The following witness may be called by the parties at trial: 19 (a) Provide names/addresses of Plaintiff’s witnesses: 20 21 Names of Plaintiff’s Witnesses Address of Plaintiff’s Witnesses 22 Via Deposition Testimony: 23 Aaron J. McCoy, UPRC, Track Foreman 13181 Crossroads Parkway North, Suite 500, City of Industry, CA 91746 24 Steven E. Berman, M.D. Nevada Pain & Spine Specialists, 605 Sierra Rose Drive, Suite 4, Reno, NV 89511 25 Lacy Fettic, M.D. University of Nevada, Reno, School of Medicine, 26 Family Medicine Center – Reno, 1664 N. Virginia Street UNR Brigham Bldg, Mailstop 316, Reno, 27 NV 89557 28 1 Julius M. Rogina, Ph.D. 1270 Wakefield Trail, Reno, NV 89523-9718 2 Elizabeth Kiehn, APRN 1330 Crosswater Drive, Reno, NV 89523 Justin Walker, M.D. Reno Orthopaedic Clinic, 555 North Arlington 3 Avenue, Reno, NV 89503 Via Live Testimony: 4 Christopher Althouse c/o James A. Morris, Jr., Brent Coon & 5 Associates, 4001 W. Alameda Avenue Suite 208, Burbank, CA 91505 6 Gail Althouse 741 Canary Circle, Fernley, NV 89408 Cameron Pulsifer, UPRC, Manager Track 13181 Crossroads Parkway North, Suite 500, City 7 and Maintenance of Industry, CA 91746 8 Mike Upton, UPRC 13181 Crossroads Parkway North, Suite 500, City of Industry, CA 91746 9 Mark J. Burns, BSME, JD, GC, CBI, Aperture |LLC/Wexco 1730 E. Holly Avenue, 10 CXLT, CPSI Suite 720, El Segundo, CA 90245 Jason E. Garber, M.D. Center for Spine and Brain Surgery, 3012 South 11 Durango Drive, Las Vegas, NV 89117 Colby P. Young, M.D. HandSurgery Specialists of Nevada, 9321 W. 12 Sunset Road, Las Vegas, NV 89148 13 Paul Broadus, M.A. Broadus & Associates, 112 N. Harvard Avenue, #221, Claremont, CA 91711 14 Jeffrey B. Opp, Economist Opp & Company, Inc., 399 Perry Street, Suite 201, Castle Rock, CO 80104 15 16 (b) Provide names/addresses of Defendant’s witnesses: 17 18 Names of Defendant’s Witnesses Addresses of Defendant’s Witnesses 19 Via Deposition Testimony Steven E. Berman, MD Nevada Pain & Spine Specialists, 605 Sierra Rose 20 Drive, Suite 4, Reno, NV 89511 Lacy Fettic, MD Humboldt General Hospital, 118 E. Haskell Street, 21 Winnemucca, NV 89445 22 Elizabeth Kiehn, APRN Travelling Triggers, 3636 Mayberry Drive, Suite 102, Reno, NV 89509 23 Julius Rogina, Ph.D. 1270 Wakefield Trail, Reno, NV 89523 Justin Walker, MD Reno Orthopedic Clinic, 555 North Arlington 24 Avenue, Reno, NV 89503 25 Via Live Testimony Mark Allen UPRR Director of Track Construction, Southern 26 Region HQ, 24125 Aldine Westfield Road, Spring, 27 TX 77373 28 Christopher Althouse c/o James A. Morris, Jr., Brent Coon & 1 Associates, 4001 W. Alameda Avenue Suite 208, 2 Burbank, CA 91505 Gail Althouse 741 Canary Circle, Fernley, NV 89408 3 Joshua Cole Cornett UPRR Ballast Tamer Operator Mulit, 999 E 16th St., Tucson, AZ 85701 4 Angela Craik UPRR Risk Management Representative, 9451 5 Atkinson Street, Roseville, CA 95747 J.Vincent Filoteo, Ph.D. VA San Diego Healthcare System, Psychology 6 Service 116-B, 3350 La Jolla Village Dr., La Jolla, CA 92136 7 Michael R. Klein, Jr., M.D., F.A.C.S. MRK Medical Consultants, 11249 Gold Country 8 Blvd., Suite 165, Gold River, CA 95670 Amy Koellner, MS, ABVE, CRC, LPCC- Career Counseling & Consulting, 4647 Long 9 LPC Beach Blvd., Suite D10, Long Beach, CA 90805 10 Greg Haney UPRR Manager II MOW, Nephi, UT Scott Lauby UPRR Sr. Manager, Track Welding, 1400 Douglas 11 St., Omaha, NE 68179 12 Aaron J. McCoy UPRR Ballast Tamer Operator Switch, Gerlach, NV 13 Cameron Pulsifer UPRR Manager I Track Maintenance, 1 South Pyramid Way, Sparks, NV 89431 14 David Rondinone, Ph.D., P.E. Principal Mechanical Engineer, Berkeley 15 Engineering and Research, Inc., 808 Gilman Street, Berkeley, CA 94710 16 Mike Upton UPRR Sr. Manager, Track Maintenance, 1 South Pyramid Way, Sparks, NV 89431 17 Peter D. Wrobel, CPA/APV, CFE Berkeley Research Group, 550 South Hope Street, 18 Suite 2150, Los Angeles, CA 90071 19 IX. 20 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 It is expressly understood by the undersigned that the Court will set the trial of this matter on one of the 24 agreed-upon dates if possible; if not, the trial will be set at the convenience of the Court’s calendar. 25 It is estimated that the trial will take a total of 7-12 days. 26 27 X. 28 No motions in limine have been filed at this time. Pursuant to LR 16-3(a), motions in limine are due 1 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 1. Exclude evidence Plaintiff attended substance rehabilitation prior to the incident (including but 6 not limited to at Elizabeth Kiehn, APRN, deposition transcript, p. 97; irrelevant, FRE 401, 402; 7 8 probative value substantially outweighed by unfair prejudice, confusing the issues, misleading 9 the jury, undue delay and wasting time, FRE 403.) 10 2. Exclude Michael R. Klein, Jr., M.D., expert opinions regarding spinal issues (expert unqualified 11 in the specialty, FRE 702). 12 3. Exclude evidence regarding Plaintiff’s usage of alcohol, including “nine pints daily” (including 13 but not limited to at Steven Berman, M.D., deposition transcript, p. 81, and Lacy Fettic, M.D., 14 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 confusing the issues, misleading the jury, undue delay and wasting time, FRE 403.) 18 4. Exclude evidence regarding allegations Plaintiff was verbally abusive to wife (including but not 19 limited to at Steven Berman, M.D., deposition transcript, pp. 52, 96; irrelevant, FRE 401, 402; 20 21 probative value substantially outweighed by unfair prejudice, confusing the issues, misleading 22 the jury, undue delay and wasting time, FRE 403.) 23 5. Exclude evidence regarding pain medication overuse, including “opioid dependence” (including 24 but not limited to at Steven Berman, M.D., deposition transcript, pp. 18-22, 86, 96; Elizabeth 25 Kiehn, APRN, deposition transcript, pp. 36, 43-45, 50, 98; irrelevant, FRE 401, 402; probative 26 27 28 value substantially outweighed by unfair prejudice, confusing the issues, misleading the jury, 1 2 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., 5 509 U.S. 579 (1993); irrelevant, FRE 401, 402; probative value substantially outweighed by 6 unfair prejudice, confusing the issues, misleading the jury, undue delay and wasting time, FRE 7 8 403.) 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 Kiehn, APRN, deposition transcript, p. 84; Justin Walker, M.D., deposition transcript, pp. 40-41 12 (Daubert v. Merrell Dow Pharmaceuticals Inc., 509 U.S. 579 (1993); irrelevant, FRE 401, 402; 13 probative value substantially outweighed by unfair prejudice, confusing the issues, misleading 14 15 the jury, undue delay and wasting time, FRE 403.) 16 8. Exclude evidence regarding urine drug screening during medical visits (including but not limited 17 to at Elizabeth Kiehn, APRN, deposition transcript, pp. 13-14, 20; irrelevant, FRE 401, 402; 18 probative value substantially outweighed by unfair prejudice, confusing the issues, misleading 19 the jury, undue delay and wasting time, FRE 403.) 20 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 rule; irrelevant, FRE 401, 402.) 24 Defendant intends to file the following motions in limine: 25 1. Exclude untimely and improper opinions of Plaintiff’s vocational expert Paul Broadus. (FRCP 26 27 26, 37; Daubert v. Merrell Dow Pharmaceuticals Inc., 509 U.S. 579 (1993).) 28 2. Exclude improper opinions of Psychologist, Dr. Julius Rogina. (Daubert v. Merrell Dow 1 2 Pharmaceuticals Inc., 509 U.S. 579 (1993).) 3 3. Exclude untimely and improper opinions of Plaintiff’s medical expert Dr. Young. (FRCP 26, 37; 4 Daubert v. Merrell Dow Pharmaceuticals Inc., 509 U.S. 579 (1993).) 5 4. Exclude untimely and improper opinions of Plaintiff’s medical expert Dr. Garber including 6 opinions based on MRI studies not produced in discovery. (FRCP 26, 37; Daubert v. Merrell 7 8 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 U.S. 579 (1993).) 12 6. Exclude improper opinions of Plaintiff’s liability expert Burns. (Daubert v. Merrell Dow 13 Pharmaceuticals Inc., 509 U.S. 579 (1993).) 14 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 Northern, Inc., 813 F.2d 1377 (9th Cir.1987); Varhol v. National Railroad Passenger 18 Corporation, 909 F.2d 1557 (7th Cir. 1990), Muzzleman v. National Rail Passenger Corporation, 19 839 F. Supp. 1094 (D. Del. 1993); Jones v. Consol. Rail Corp., 800 F.2d 590 (6th Cir. 1986).) 20 21 8. Exclude any evidence regarding Plaintiff suffering from a traumatic brain injury. (Daubert v. 22 Merrell Dow Pharmaceuticals Inc., 509 U.S. 579 (1993).) 23 24 25 26 27 28 1 APPROVED AS TO FORM AND CONTENT: 2 /s/ James A. Morris, Jr. 3 || James A. Morris 4 Signature of Attorney for Plaintiff CHRISTOPHER ALTHOUSE 5 /s/ Stephanie Quinn 6 || Stephanie Quinn 4 Signature of Attorney for Defendant UNION PACIFIC RAILROAD COMPANY

8 XI. 9 ORDER: 10 11 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 settlement conference. 15 IT IS SO ORDERED. 16 - 17 18 || DATED: August 16, 2022 Y R. HICKS UNITED STATES DISTRICT JUDGE 19 20 21 22 23 24 25 26 27 28 -41-