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1

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

DAMON BRINDLE, )

) CIV NO. S-04-590 GEB

Plaintiff, )

)

v. ) FINAL PRETRIAL ORDER

)

ALLSTATE INSURANCE COMPANY, )

an Illinois corporation, )

) 

Defendant. )

)

A final pretrial conference was held on May 31, 2005. R.

Parker White and Jennifer Cutler appeared on behalf of Plaintiff;

Dennis M. Campos appeared on behalf of Defendant.

After hearing, the Court makes the following Order.

I. JURY/NON-JURY

All issues shall be tried to a jury.

II. UNDISPUTED FACTS

The undisputed facts stated in section 3 of the parties'

Joint Pretrial Statement (“JPS”) will become a part of the

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28 1 The parties also have leave to set forth their agreements

on any evidentiary matters in the Stipulation.

2

evidentiary record if the parties reach agreement on which party or

parties should read them to the jury. 

III. DISPUTED EVIDENTIARY ISSUES

Any evidentiary dispute capable of being resolved in

limine shall be addressed using the following procedure. Counsel

for the parties are required to meet and confer about the dispute. 

If the meeting fails to resolve the dispute, the parties are to set

forth their respective positions on the dispute in a document

entitled "Stipulation Re: Evidentiary Disagreements," that shall

be signed by counsel for the parties and filed no later than

August 2, 2005.1 

In the Stipulation, after the movant states the legal and

factual basis for opposing admission of a clearly-identified,

specific item of evidence, the nonmovant shall state its position.

Failure to state a basis for admissibility or non-admissibility of

disputed evidence constitutes a waiver or abandonment of that

basis. If the same argument or a portion thereof applies to a

dispute over other evidence, that argument may be incorporated by

reference where that other disputed evidence is argued. 

 This procedure is intended to expedite the trial by

allowing the judge to understand the factual context involving

disputed evidence and to make binding pretrial rulings. The

parties are cautioned that failure to utilize this procedure to

resolve an evidentiary issue which is capable of resolution in an

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2 Since the judge disfavors side-bar conferences during

trial, counsel may be informed of this waiver in front of the jury.

Evidentiary disputes addressed in limine need not be included in

trial briefs as required by Local Rule 16-285(a)(3) (requiring that

"reasonably anticipated disputes concerning admissibility of

evidence" be included in trial briefs). 

3 Defendant is granted summary judgment on Plaintiff’s

claim stated in the JPS at 3:16-26 because Plaintiff failed to show

that a genuine issue of material fact exists on this issue.

Defendant’s contention that Plaintiff did not place Defendant on

notice of Plaintiff’s theories of liability preserved for trial

fails because Defendant did not contest Plaintiff’s position that

discovery made these liability theories known to Defendant. See

Coleman v. Quaker Oats Co., 232 F.3d 1271, 1292-93 (9th Cir. 2000).

3

in limine motion may be deemed a waiver of objection to such

evidence, or could result in a ruling excluding the evidence.2

IV. RELIEF SOUGHT

Plaintiff seeks general and punitive damages. Defendant

contends any imposition of punitive damages under the facts and

circumstances of this case would violate its rights under the

United States Constitution and the Constitution of the State of

California.

V. POINTS OF LAW/DISPUTED FACTUAL ISSUES3

A. The Final Pretrial Order supersedes the pleadings

and controls the facts and claims which may be presented at trial. 

Any legal theory of relief or affirmative defense asserted in the

pleadings but not preserved for trial in this section of the Final

Pretrial Order cannot be raised during the trial. Therefore, to

preserve an issue for trial, and to be entitled to jury

instructions on that issue, the issue shall be identified and

preserved in this section of the Order. Failure to do so

dismisses, waives or abandons that issue, claim or defense. 

Hotel Emp., et al. Health Tr. v. Elks Lodge 1450, 827 F.2d 1324,

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4

1329 (9th Cir. 1987) (“Issues not preserved in the pretrial order

are eliminated from the action.”).

B. The following issues are preserved for trial provided

jury instructions are submitted as required by Section XIII of this

Order:

1. Whether Defendant improperly induced Plaintiff

to settle his uninsured motorist claim by representing that there

remained approximately $100,000 available and two years within

which Plaintiff could receive psychological and/or psychiatric

care.

2. Whether Defendant, through Joe Crowley (whom

Defendant employs as a medical payments claims representative),

failed to conduct a reasonable investigation after medical pay

claims were submitted for Plaintiff’s psychological and/or

psychiatric care.

C. In addition to the matters set forth in Local Rule

16-285, the parties shall brief the following points of law in

their trial briefs. 

1. The elements, standards, and burdens of proof as

to each of Plaintiff's causes of action, including citations of

authority in support thereof.

2. The elements, standards, and burdens of proof

as to each of Defendant's defenses, including citations of

authority in support thereof.

Notwithstanding Local Rule 16-285, trial briefs shall be

filed with the Court no later than August 2, 2005. A joint or

partial joint trial brief is permitted. All legal positions

briefed in the trial brief shall be supported with case and

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applicable statutory authority. See Local Rule 16-285. If

separate or partial separate trial briefs are submitted, responding

briefs, if any, shall be filed with the Court no later than five

(5) court days prior to trial. The trial brief(s) must include “a

summary of points of law, including reasonably anticipated disputes

concerning admissibility of evidence, legal arguments, and

citations of authority in support thereof.” Local Rule 16-

285(a)(3).

VI. WITNESSES

A. Plaintiff expects to call as witnesses, either in

person or by deposition, some or all of the persons listed in the

attachment to the JPS. 

B. Defendant expects to call as witnesses, either in

person or by deposition, some or all of the persons listed in the

attachment to the JPS. 

C. Each party may call a witness designated by the

other.

D. No person, other than those named on these witness

lists, will be permitted to testify unless:

(1) The party offering the witness demonstrates that

the witness is for the purpose of rebutting evidence which could

not reasonably be anticipated at the pretrial conference; or

(2) The witness was discovered after the pretrial

conference and the proffering party makes the showing required in

"E", below.

E. If a witness is discovered after the pretrial

conference, counsel for the party offering the witness shall

promptly inform the Court and opposing parties of the existence of

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the unlisted witness so that the Court may consider at trial

whether the witness shall be permitted to testify. The witness

will be not be permitted to testify unless:

(1) The witness could not reasonably have been

discovered prior to pretrial;

(2) The Court and opposing counsel were promptly

notified upon discovery of the witness;

(3) If time permitted, counsel offered the witness

for deposition; and

(4) If time did not permit, a reasonable summary of

the witness' testimony was provided to opposing counsel.

VII. EXHIBITS

A. Plaintiff intends to offer in evidence the exhibits

described in the attachment to the JPS. 

B. Defendant intends to offer in evidence the exhibits

described in the attachment to the JPS. 

C. No other exhibits will be permitted to be introduced

unless:

(1) The party seeking to use the unlisted exhibit

demonstrates that the exhibit is for impeachment;

(2) The party seeking to use the unlisted exhibit

demonstrates that the exhibit is being used to rebut evidence which

could not reasonably have been anticipated at the pretrial

conference; or

(3) The unlisted exhibit was discovered after the

pretrial conference and the offering party makes the showing

required in paragraph "D", below.

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28 4 The parties have leave to file joint exhibits. The above

(continued...)

7

D. Any party proposing to introduce an exhibit which was

discovered after the pretrial conference shall promptly notify the

Court and opposing counsel of the existence of such exhibit. The

Court will not permit any such exhibit to be introduced unless it

finds:

(1) That the exhibit could not reasonably have been

discovered prior to the pretrial conference;

(2) The Court and counsel were promptly informed of

the exhibit's existence; and

(3) That the offering party has delivered a copy of

the exhibit to opposing counsel, or, if the exhibit may not be

copied, that the offering counsel has made the exhibit reasonably

available for inspection by opposing counsel. 

E. Plaintiff's exhibits shall be numbered and marked

with colored stickers provided by the Court while Defendant's

exhibits shall be designated by alphabetical letter also marked

with colored stickers provided by the Court. To obtain stickers,

parties should contact the Clerk of Court at (916) 930-4000.

The parties are directed to exchange with each other, at

least twenty (20) court days prior to trial, copies of all of their

respective exhibits, marked with exhibit stickers provided by the

Court. Within five (5) court days after receipt and examination of

the exhibits, each party shall file with the Court and serve upon

opposing counsel objections, if any, to the exhibits, referencing

the exhibits as marked by exhibit sticker and specifying the basis

for each objection.4 Failure to exchange exhibits as ordered could

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28 4(...continued)

procedure is designed for separate exhibits.

8

result in the exhibit not being used at trial and/or the imposition

of sanctions. The failure to make objections in the manner

prescribed by this section shall constitute a waiver of objections. 

A party seeking to admit into evidence an exhibit to which no

objection was made must identify said exhibit for the record and

then move it into evidence. 

Counsel shall produce all exhibits to the Clerk's Office

on the Friday before the before trial date, no later than 4:00 p.m. 

At that time, the parties shall also furnish the Court with a copy

of each exhibit, unless the exhibit is physically incapable of

being reproduced. Failure to produce exhibits as ordered could

result in waiver of the right to offer those exhibits. Each party

submitting exhibits shall furnish a list to the Court, the

courtroom deputy and opposing counsel itemizing the exhibits. 

VIII. FURTHER PREPARATION FOR USE OF DISCOVERY DOCUMENTS

A. It is the duty of counsel to ensure that any

depositions which are to be used at trial for any purpose shall

have been filed with the clerk, and counsel are cautioned that a

failure to discharge this duty may result in preclusion of the use

of the unfiled depositions or in the imposition of such other

sanctions as the Court deems appropriate.

B. No later than twenty (20) court days before the trial

commencement date, counsel for each party shall serve on the other

parties a statement designating all answers to interrogatories and

all portions of depositions (except for passages to be used solely

for refreshing recollection, impeachment or rebuttal). No later

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than ten (10) court days before the trial commencement date,

counter-designations of other portions of these discovery documents

may be served. No later than five (5) court days before trial, the

parties shall file and serve any preserved evidentiary objections

to any designated discovery, or said objections are waived.

IX. FURTHER DISCOVERY OR MOTIONS

Pursuant to the Court's Pretrial Scheduling Order, all

discovery and law and motion was to have been completed prior to

the date of the final pretrial conference. That order is

confirmed. The parties are, of course, free to conduct any

additional discovery they desire pursuant to informal agreement. 

However, any such agreement will not be enforceable in this Court.

X. SETTLEMENT NEGOTIATIONS

No settlement conference is scheduled in this matter. If

the parties believe that a settlement conference would be

productive and facilitate resolution of this case, the parties may

contact the Court. If the Court schedules a settlement conference

at the request of the parties, each party would be directed to have

a principal with authority to settle the case on any terms present

at the settlement conference. 

In addition, each party would have to submit a settlement

conference statement directly to the chambers of the settlement

judge, five (5) court days prior to the settlement conference. 

Such statements would not have to be filed with the clerk nor

served on opposing counsel. However, each would be required to

notify the other party or parties that the statement was submitted

to the judge's chambers.

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XI. AGREED STATEMENT

The parties shall submit a short, jointly-prepared

statement concerning the nature of this case that can be read to

the jury at the commencement of trial. The statement shall be

provided to the Court no later than August 16, 2005. If the

parties fail to do this, they may be required to give their

respective opening statements before voir dire. Separate

statements shall be submitted if agreement is not reached.

XII. SEPARATE TRIAL OF ISSUES

If the jury finds punitive damages are recoverable, trial

on the amount of punitive damages will immediately occur. During

the first phase of the trial, the jury will be given a liability

instruction on punitive damages along with the other closing

instructions and a verdict form which will include the question

whether punitive damages should be awarded. If the answer is yes,

the second phase of the trial would then occur with the

presentation of financial condition evidence pertinent to the

amount of punitive damages, following which the parties would

present closing argument on that issue and a second phase jury

instruction would be given to the jury on the issue. The jury

would then deliberate on the issue and fill in a punitive damages

verdict form.

XIII. JURY INSTRUCTIONS, VOIR DIRE, AND VERDICT FORMS

A. The parties are to prepare jury instructions, in the

manner specified in paragraph B below, and shall tailor all general

instructions to the facts and issues in suit.

B. Counsel are directed to confer and to attempt to

agree upon a joint set of jury instructions which shall encompass

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general instructions and instructions specific to each party's

case. All instructions, both general and specific, shall be

submitted in the exact numerical order counsel desires them given

to the jury and shall be tailored to the facts and issues in suit.

The joint set of instructions shall be filed with the

court no later than August 9, 2005, and shall be identified as the

"Jury Instructions Without Objection." See L.R. 51-163(b). As to

instructions on which there is dispute, the parties shall adhere to

the following procedure: 1) the party offering the disputed

instruction(s) shall submit the instruction(s) as its package of

proposed jury instructions, shall submit a brief memorandum in

support of the proposed instruction(s) and shall number the

disputed instruction in a manner that shows where each disputed

instruction should be placed in the tendered agreed upon

instructions. The contested instruction(s) and memorandum in

support shall be filed with the joint set of instructions no later

than August 9, 2005; 2) the party opposed to the contested

instruction(s) shall submit a brief memorandum succinctly stating

the legal basis of the objection(s); 3) the memoranda in opposition

to the contested instruction(s) shall be filed August 16, 2005. 

C. All instructions shall be, to the extent possible,

concise, understandable, and neutral statements of law. They shall

be prepared in accordance with Local Rule 51-163. Ninth Circuit

Pattern Instructions are preferred.

D. It is the parties' responsibility to ensure that

jury instructions are submitted on all issues preserved for trial

in accordance with the schedule set forth above. Pursuant to Local

Rule 51-163, instructions not presented in accordance with this

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Order will be refused unless it is shown either (1) that the

necessity for the request arose in the course of trial; the

instructions could not reasonably have been anticipated prior to

trial from the Final Pretrial Order; and the request for such

additional instructions is presented to the Court as promptly as

possible; or (2) that the refusal to give such instructions would

constitute manifest injustice under Rule 16(e). 

Likewise, any objections to proposed instructions not

made in accordance with this Order will be overruled as untimely

unless it is shown either (1) that the grounds therefor arose in

the course of trial and the intention to make such objections is

communicated to the Court as promptly as possible, or (2) that the

giving of such instructions would constitute plain error.

E. Most of the examination of prospective jurors is

conducted by the Court. The parties are directed to meet and

confer and attempt to agree upon a joint set of proposed voir dire

questions. The joint set of voir dire questions shall be filed

with the Court no later than August 9, 2005. Parties may also

submit proposed voir dire questions which are disputed. Disputed

voir dire questions shall be filed with the Court by August 9, 2005

and shall be accompanied by an explanation as to the need for the

question and supporting case authority when available. The

opposing party shall respond with reasons for the opposition and

any supporting case authority no later than August 16, 2005. Each

side is granted twenty (20) minutes to conduct voir dire following

the Court's examination of prospective jurors.

F. The parties shall file a joint verdict form

concurrently with proposed jury instructions no later than

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5 As explained in United States v. Blouin, 666 F.2d 796,

798 (2d Cir. 1981), "the goal of the 'struck jury' system is to

whittle down an initially selected group . . . [to the amount of

jurors] who will serve as the petit jury." The selected group

consists of the jurors who will hear the case, plus the number of

(continued...)

13

August 9, 2005. See L.R. 51-163(e). A special verdict or

interrogatories shall be included for all factual disputes

submitted to the jury that must be resolved before questions of law

can be decided, and for any other issue on which specific responses

are desired. The verdict form shall be prepared in accordance with

Local Rule 51-163(e). At the same time, where disagreements exist,

the parties shall explain the disagreement and submit points and

authorities supporting their respective positions.

At the time of electronically filing the jury

instructions and verdict form, counsel shall also submit a copy of

the sanitized joint jury instructions, the sanitized disputed jury

instructions, and the joint verdict form to the Court by email to

geborders@caed.uscourts.gov in accordance with L.R. 51-163(b)(1).

G. The failure of one or more of the parties to

participate in the preparation of joint jury instructions, proposed

voir dire questions, or verdict form does not excuse the other

parties from their obligation to timely file these documents with

the Court in accordance with this Order. In the event that a party

fails to participate as ordered, the party timely submitting these

documents shall include a declaration explaining why it was unable

to obtain the cooperation of the other party or parties.

XIV. USE OF STRUCK JURY SELECTION SYSTEM

Eight (8) jurors will be impaneled. The "struck jury"

system will be used to select the jury.5 At the beginning of the

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5(...continued)

jurors required to enable the parties to use the combined number of

peremptory challenges allotted to both sides for striking jurors

from the group. Typically extra jurors are included in the select

group in the event the minimum amount of jurors required for the

"struck system" is reduced "for cause" or some other reason.

6 More could be seated.

14

voir dire process, eighteen prospective jurors, randomly selected

by the Jury Administrator, will be seated for voir dire.6 The

order of the jurors’ random selection is reflected by the order in

which they will be seated. The first randomly selected juror will

be in jury seat number one, which is at the extreme right-hand side

of the jury box in the top row as the jury box is viewed from the

well of the courtroom. The eighth juror will be in the eighth

seat. The ninth selected juror will occupy the seat located at the

extreme right-hand side of the jury box in the bottom row. The

fifteenth seat will be in the left-hand side of that row. Three

chairs will be placed in front of the jury box. The sixteenth

juror will occupy the seat on the right and the eighteenth juror

will occupy the seat on the left. The first eight (8) jurors on a

list, which shall be given to counsel, will constitute the petit

jury unless one or more of those eight (8) is excused for some

reason. Assuming that the first and fifth jurors on the list are

excused, the second listed juror becomes the first, and the other

jurors’ numbers are changed accordingly, with the ninth juror on

the list becoming seventh on the list; however, the jurors continue

to be identified by their original numbers.

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7 During the questioning, the attached Query Re Excuse

Potential Jurors form could be given to the parties to determine if

a particular juror should be excused. The attached for cause form

will also be used. 

8 For example, assuming Plaintiff elects to strike the

juror in seat number 6, that strike will be exercised and then the

strike sheet is give to defense counsel. Assuming defense counsel

then strikes the juror in seat 4, the first line of the strike

sheet will appear as follows:

Plaintiff 1 6 Defendant 1 4 

Defense counsel would then give the strike sheet back to Plaintiff

so she could exercise her second strike.

15

Following the voir dire questioning, each side will

exercise its three allowed peremptory strikes.7 A copy of the

“strike sheet” which will be used is attached to this Order. 

Generally, the potential jurors are given a break for the amount of

time the parties estimate it will take them to exercise peremptory

strikes. Therefore, before the striking process begins, the

parties are requested to provide an estimate of how long it will

take to exercise their peremptory strikes so the potential jurors

can be allowed to take a break for that amount of time. Peremptory

strikes will be exercised silently, by passing the strike sheet

between the parties, with the Plaintiff going first. To use a

strike, write the seat number of the juror above the line where the

strike is required to be designated.8 A party who does not use a

strike waives any further right to exercise that strike and is

required to reflect this waiver by writing the word “pass” on the

strike sheet where the strike was supposed to have been exercised.

XV. ATTORNEYS FEES

The parties are referred to Local Rule 54-293 concerning

the post-trial procedure for seeking an award of attorney's fees. 

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9 The parties are required to meet and confer about the

length of the trial and to file a document no later than 20 court

days before trial in which the length of trial is estimated.

16

XVI. JURY INSTRUCTION AND VERDICT FORM CONFERENCE

A jury instruction and verdict form conference will be

scheduled if necessary. See Local Rule 51-163(f). The attorney

who will try the case for each party shall attend the conference. 

The purpose of the conferences is to finalize these matters, to the

extent possible, before trial. The possibility of conferences

being scheduled does not relieve the parties from their obligation

to comply with all provisions of this Order.

XVII. TRIAL DATE

Trial to a jury is set for August 30, 2005.

9 A trial day

will commence at 9:00 a.m. and will adjourn at approximately 4:30

p.m. At the first phase of the trial, each side has thirty (30) 

minutes within which to make an opening statement to the jury and

ninety (90) minutes within which to make a closing argument. If

trial proceeds to the second phase, each side has fifteen (15)

minutes within which to make a closing argument on the punitive

damage issue. Counsel are to call Shani Furstenau, Courtroom

Deputy, at (916) 930-4114, one week prior to trial to ascertain the

status of the trial date.

XVIII. COMMUNICATION WITH JURY

The Court intends to communicate the following to the

jury just before it retires to deliberate:

1. Is the United States Marshal's representative 

present who will take charge of the jury?

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2. Deputy Clerk, please give the oath to the United

States Marshal's representative.

3. The jury may take breaks at will, without advance

permission, under the general supervision of the

United States Marshal's representative.

4. The jury may go to lunch when they desire, without

advance permission, under the general supervision of

the United States Marshal's representative. When

the jury leaves for lunch, the United States

Marshal's representative shall tell my courtroom

deputy clerk so that I, my staff, the lawyers, and

the parties can be relieved from standby status. 

This allows those on standby status to go to lunch

at the same time the jury has lunch.

5. The jury is authorized to adjourn for the evening

without advance permission, and without having to

return to this courtroom to be excused by me in

front of the parties, but the United States

Marshal's representative shall tell my deputy

courtroom clerk when the jury adjourns so that the

judge, the judge's staff, the lawyers, and the

parties can be relieved from standby status.

6. When deliberations are continued the day after

evening adjournment, jurors are permitted to proceed

directly to the jury deliberation room. But jurors

are to wait until all jurors are present before

resuming deliberations.

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7. We desire you to deliberate between the hours of

9:00 a.m. and 4:30 p.m., as necessary. However, you

may deliberate for a shorter or longer period if you

desire, provided all of you are in agreement. 

Otherwise, you should let me know about the

disagreement.

8. If you have a cell phone and/or a device with a

wireless internet connection, you must give it to

the United States Marshal’s representative before

you go into the jury deliberation room so that we

can be assured that there is no interference with

your deliberations. That representative will return

it when you leave the jury deliberation room.

9. The United States Marshal's representative will

maintain a post outside the jury deliberation room

to protect the jury from outside influences or

visitors. That representative shall not communicate

with you about the case or the court system because

such conversations could be misconstrued as a

communication that seeks to influence the jury. 

Stay in the jury room until all jurors are ready to

leave for a break or lunch.

10. Please escort all jurors to the deliberation room.

XIX. OBJECTIONS TO PRETRIAL ORDER

Any party may, within ten (10) court days after the date

this Order is filed, file and serve written objections to any part

of this Order. Any objection must specify the requested

correction, addition, and/or deletion. Any response to an

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objection must be filed and served within ten (10) court days after

the objection is filed. A final pretrial order may only be

modified upon a showing of manifest injustice.

FAILURE TO COMPLY WITH ALL PROVISIONS OF THIS ORDER MAY BE

GROUNDS FOR THE IMPOSITION OF SANCTIONS ON ANY AND ALL COUNSEL AS

WELL AS ANY PARTY OR PARTIES WHO CAUSE NON-COMPLIANCE WITH THIS

ORDER.

IT IS SO ORDERED.

Dated: June 2, 2005

/s/ Garland E. Burrell, Jr.

GARLAND E. BURRELL, JR.

United States District Judge

Case 2:04-cv-00590-GEB-DAD Document 22 Filed 06/02/05 Page 19 of 22
STRIKE SHEET

Plaintiff 1 Defendant 1 

 2 2 

 3 3 

 

Case 2:04-cv-00590-GEB-DAD Document 22 Filed 06/02/05 Page 20 of 22
Query re Excuse Potential Juror

Do you Agree that Juror No. ____ should be excused for the reason stated by the juror or

for any other reason? (Check applicable box below)

Plaintiff's Attorney Defendants’

Attorney 

RESPONSE: 9 9 9 9

 Yes No Yes No 

Case 2:04-cv-00590-GEB-DAD Document 22 Filed 06/02/05 Page 21 of 22
Whether Jurors Present During Exercise of Peremptory Challenges

Can the jury be excused for the amount of time it will take to exercise peremptory

challenges? (Set forth response in box below)

Plaintiff's Attorney Defendants’ Attorney 

RESPONSE: 9

 Yes No

9 9

 Yes No

9 

How long do you estimate it will take you to exercise peremptory challenges? (Set forth

minutes in box below)

Plaintiff's Attorney Defendants’ Attorney 

MINUTES: 9 9

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