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1

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA

----oo0oo----

JOYCE SHARON FREDRICKSON

and JERRY FREDRICKSON,

NO. CIV. S-04-1061 WBS GGH

Plaintiff(s),

v. PRETRIAL ORDER

HOLIDAY RETIREMENT CORP.;

HILLTOP ESTATES; ECOLAB 

INC., and DOES 1 through

25, inclusive, 

Defendant(s).

_____________________________/

----oo0oo----

A Final Pretrial Conference was held in this matter,

pursuant to the provisions of Rule 16(d) of the Federal Rules of

Civil Procedure and Local Rule 16-282, on August 30, 2005. James

A. Wyatt appeared as counsel for plaintiffs; Timothy J. Nisson

appeared as counsel for defendants. Following the hearing, the

court enters this Final Pretrial Order:

///

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I. Jurisdiction-Venue 

Jurisdiction is predicated upon 28 U.S.C. § 1332

(diversity) and the matter in controversy exceeds the sum of

$75,000. Venue is undisputed and is hereby found to be proper.

 II. Jury-Nonjury 

The parties demand a jury trial. Accordingly, the action

shall be tried, pursuant to Fed. R. Civ. P. 48, before a jury

consisting of no less than six and no more than 12 members.

 III. Jury Instructions and Proposed Form of Verdict

No later than ten court days before the trial date,

counsel for plaintiff shall lodge and serve, pursuant to Local Rule

51-163, copies of all jury instructions which plaintiff requests

be given on plaintiff’s claims. At that time, counsel for

plaintiff shall also file and serve a copy of a proposed form of

verdict. 

No later than seven court days before the trial date,

counsel for defendants shall file and serve any objections to the

instructions proposed by plaintiff. At the same time, counsel for

defendants shall lodge and serve, pursuant to Local Rule 51-163,

copies of any and all jury instructions not already proposed by

plaintiff, which defendants request be given. Also at that time,

counsel for defendants shall file and serve a copy of any proposed

form of verdict and shall also file any objections to plaintiff’s

proposed form of verdict.

No later than four court days before the trial date,

counsel for plaintiff shall file and serve any objections to the

instructions proposed by defendants and to any proposed form of

verdict.

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Pursuant to Local Rule 51-163, any other instructions

thereafter presented will be refused unless it is shown either:

(1) that the necessity for the request arose in the course of

trial; could not reasonably have been anticipated prior to trial

from the pleadings, discovery or nature of the action; 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 plain error.

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. 

IV. Voir Dire Questions

No later than seven court days before the trial date,

counsel for each party shall submit all proposed jury voir dire

questions.

V. Trial Briefs 

No later than seven court days before the trial date,

counsel for each party shall file trial briefs, which shall include

any motions in limine, pursuant to Local Rule 16-285. No later

than four court days before trial, the parties may file

oppositions, if any, to the motions in limine.

VI. Disputed Issues of Fact

Plaintiffs have settled their claims against defendant

EcoLab, Inc. prior to the Pretrial Conference. At the Pretrial

Conference, it was agreed that the claims against defendant Hilltop

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Estates shall be dismissed.

Accordingly, the only remaining claims in this action are

(1) plaintiff Joyce Fredrickson’s claim of negligence against

Holiday Retirement Corp.; and (2)plaintiff Jerry Fredrickson’s

claim against defendant Holiday Retirement Corp. for loss of

consortium.

All issues of fact in relation to each of those claims

remain in dispute and subject to proof at trial.

 VII. Witnesses

(A) Plaintiff anticipates calling the witnesses

identified at Exhibit “A” attached hereto.

(B) Defendants anticipate calling the witnesses

identified at Exhibit “B” attached hereto. 

(C) Each party may call any witness designated by any

other party.

(D) At the election of the party calling the witness,

the direct testimony of any witness may be presented by

declaration, to be provided to the court and opposing counsel at

least 24 hours before the witness is produced for crossexamination.

(E) No other witnesses will be permitted to testify at

trial unless: 

(1) all parties stipulate that the witness may

testify; 

(2) the party offering the witness demonstrates

that the witness is for the purpose of rebutting evidence which 

could not have been reasonably anticipated at the time of the

Pretrial Conference; or 

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(3) the witness was discovered after the Pretrial

Conference.

(F) Testimony of a witness not designated in this Order,

which is offered under paragraph VIII(E)(3), above, upon the

grounds that the witness was discovered after the Pretrial

Conference, will not be permitted unless: 

(1) the testimony of the witness could not

reasonably have been discovered prior to the Pretrial Conference;

(2) the court and opposing counsel were promptly

notified upon discovery of the testimony; and 

(3) counsel proffered the witness for deposition

if time permitted or provided all opposing counsel a reasonable

summary of the testimony if time did not permit a deposition.

VIII. Exhibits 

(A) Plaintiff intends to offer the exhibits identified

at Exhibit “C” attached hereto.

(B) Defendants intend to offer intends to offer the

exhibits identified at Exhibit “D” attached hereto. 

 (C)Each party may offer any exhibit designated by any

other party.

(D) No other exhibits will be received in evidence

unless: 

(1) all parties stipulate that the exhibit may be

received in evidence;

(2) the party offering the exhibit demonstrates

that the exhibit is for the purpose of rebutting evidence which

could not have been reasonably anticipated at the time of the

Pretrial Conference; or 

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(3) the exhibit was discovered after the Pretrial

Conference.

(E) An exhibit not designated in this Order, which is

offered under paragraph IX(D)(3), above, upon the grounds that the

exhibit was discovered after the Pretrial Conference, will not be

received in evidence unless: 

(1) the exhibit could not reasonably have been

discovered prior to the Pretrial Conference; 

(2) the court and opposing counsel were promptly

notified upon discovery of the exhibit; and 

(3) counsel provided copies of the exhibit to all

opposing counsel if physically possible or made the exhibit 

reasonably available for inspection by all opposing counsel if

copying was not physically possible.

(F) Each party shall exchange copies of all exhibits

identified in this Order, or make them reasonably available for

inspection by all other parties, not later than thirty calendar

days before the trial date. Any and all objections to such

exhibits shall be filed and served not later than fourteen calendar

days before the trial date. 

(G) The attorney for each party is directed to appear

before trial and present an original (and if physically possible

one copy) of each exhibit to Deputy Clerk Sally Hoover at 8:30 a.m.

on the date of trial. 

(H) Each exhibit which has been designated in this Order

and presented on the morning of the date of trial shall be premarked by counsel. Plaintiff’s exhibits shall bear numbers;

defendants’ exhibits shall bear letters. If no objection has been

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made to such exhibit pursuant to paragraph IX(F), above, such 

exhibit will require no further foundation and will be received in

evidence upon the motion of any party at trial.

IX. Further Discovery and Motions

Except for motions in limine, no further motions shall

be brought before trial except upon order of the court and upon a

showing of manifest injustice. Fed. R. Civ. P. 16(e). No further

discovery will be permitted except by the express stipulation of

all parties or upon order of the court and upon a showing of

manifest injustice. Id.

X. Use of Depositions or Interrogatories

No later than twenty calendar days before the trial date,

counsel for each party shall file and serve a statement designating

all answers to interrogatories and all portions of depositions

intended to be offered or read into evidence, with the exception

of portions to be used only for impeachment or rebuttal. No later

than ten calendar days before the trial date, counsel for any other

party may file and serve a counter-designation of other portions

of the same depositions intended to be offered or read into

evidence and may file evidentiary objections to any other parties'

designation. No later than seven calendar days before the trial

date, the parties may file evidentiary objections to any other

party’s counter-designation. 

XI. Date and Length of Trial

The trial is set for October 25, 2005, at 9:00 a.m. in

Courtroom No. 5. The court estimates that trial will last

approximately four (4) trial days. 

XII. Daubert Procedure

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Any challenges based on Daubert v. Merrell Dow

Pharmaceuticals, Inc., 509 U.S. 579 (1993) and Kumho Tire Co. v.

Carmichael, 119 S. Ct. 1167 (1999) will be raised and resolved

outside the presence of the jury just prior to when the challenged

expert will be called to give testimony. Any challenged expert

shall be present for such a challenge, and shall be available for

questioning. 

XIII. Settlement Conference

A Settlement Conference is set before the Honorable Frank

C. Damrell, at 10:00 a.m. on October 14, 2005 in Courtroom No. 2.

Each party is ordered to have a principal with full

settlement authority present at the conference or be fully

authorized to settle the matter on any terms. Particularly,

plaintiffs Joyce and Jerry Fredrickson and a representative of

defendants’ insurance carrier with actual settlement authority

shall be present at the settlement conference. No later than seven

days before the date of the Settlement Conference, counsel for each

party shall file and serve a Settlement Conference Statement for

review by the settlement judge.

XIV. Objections to Pretrial Order

Any objections or suggested modifications to this

Pretrial Order shall be filed and served within five court days

from the file-stamped date of this Order. All references herein

to the date of this Order shall refer to the date the tentative

order is filed and not to the date any amended order is filed. If

no objections or modifications are made, this Order will become 

final without further order of the Court and shall control the

subsequent course of the action, pursuant to Rule 16(e) of the

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Federal Rules of Civil Procedure.

DATED: September 6, 2005.

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 Exhibit “A”

Plaintiffs’ Witnesses

1. Paul J. Slosar, M.D., SpineCare Medical Group, Inc., 1850 Sullivan Avenue,

Suite 200, Daly City, CA 94015, Telephone (650) 985-7500.

2. Robert A. Savala, M.D., SpineCare Medical Group, Inc., 1850 Sullivan Avenue,

Daly City, CA 94015, Telephone (650) 985-7500.

3. Steven R. Tulkin, Ph.D., SpineCare Medical Group, Inc., 1850 Sullivan Avenue,

Suite 200, Daly City, CA 94015, Telephone (650) 985-7500.

4. Patrick M. Campbell, M.D., 2787 Eureka Way, Redding, CA 96001, Telephone

(530) 243-1552.

5. Gurpreet K. Singh, D.O., Ph.D., 1441 Liberty, Redding, CA 96001, Telephone

(530) 243-1313.

6. Harvinder S. Birk, M.D., Neuro Electro-Diagnostics, 2336 Court Street,

Redding, CA 96001, Telephone (530) 241-8890.

7. Reed M. Grabow, M.D., MD Imaging, Inc., 2020 Court Street, Redding, CA 96001,

Telephone (530) 241-1236.

8. Paul W. Auston, M.D., MD Imaging, Inc., 2020 Court Street, Redding, CA 96001,

Telephone (530) 241-1236.

9. James Y. Welborn, M.D., MD Imaging, Inc., 2020 Court Street, Redding, CA

96001, Telephone (530) 241-1236.

10. Leonard Soloniuk, M.D., Advanced Pain Care Medical Clinic, 2656 Edith

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Avenue, Suite B, Redding, CA 96001, Telephone (530) 247-3733.

11. Kevin Snider, R.P.T., Kevin Snider Physical Therapy, 1920 Barney, Anderson,

CA 96007, Telephone (530) 365-2142.

12. Kym L. Chandler, M.D., 1335 Buenaventura Blvd., Redding, CA 96001, Telephone

(530) 243-2579.

13. Robert G. Liptai, 514 Central Avenue, Alameda, CA 94501, Telephone (510)

769-9707.

14. Edward Younger, MRK Consultants, 6555 Coyle Avenue, Suite 235, Carmichael,

CA 95608, Telephone (916) 863-7301.

15. Donna Rogers, receptionist, c/o Hilltop Estates Retirement Residence, 451

Hilltop Drive, Redding, CA, Telephone (530) 241-4444.

16. Jim Shoon, Manager, c/o Hilltop Estates Retirement Residence, 451 Hilltop

Drive, Redding, CA, Telephone (530) 241-4444.

17. Paul and Vonnie Katter, Former co-managers of Hilltop Estates Retirement

Residence, 19500 Big Springs Road, Weed, CA.

18. Denise Braund, 17049 Snively Road, Cottonwood, CA 96022.

19. Mrs. Platina Lawson, outside customer of plaintiff, 11332 Sonora Trail,

Redding, CA 96003, Telephone (530) 549-3336.

20. Mr. Ed Lawson, outside customer of plaintiff, 11332 Sonora Trail, Redding,

CA 96003, Telephone (530) 549-3336.

21. Mark Hoff; Risk Manager, Holiday Retirement Corp., 2250 McGilchrist Street,

SE, Salem, OR 97302.

22. Robert Arthur Taylor, 12830 River Hills Drive, Bella Vista, CA 96008.

23. Joyce Sharon Fredrickson, plaintiff.

24. Gerald Fredrickson, plaintiff.

25. Joanne Edgerton, friend, P.O. Box 297, Igo, CA, Telephone (530) 396-2614.

Plaintiffs’ Supplemental Witness List

1. Karen Bruce, friend, c/o Denise Braund, 17049 Snively Road, Cottonwood, CA

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96022. Telephone number (530) 549-5573.

2. Geinne Snider, friend, c/o Denise Braund, 17049 Snively Road, Cottonwood,

CA 96022. Telephone (530) 241-0681.

3. Gabrielle Guglielmelli, c/o Denise Braund, 17049 Snively Road, Cottonwood,

CA 96022. Telephone (303) 896-5991.

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Exhibit “B”

 Defendant Holiday Retirement’s W itnesses

A. James and Mary Schoon, Managers, Hilltop Estates Retirement

Residence;

B. Donna Rogers, Hilltop Estates Retirement Residence

C. Paul and Vonnie Katter, former managers of Hilltop Estates Retirement

Residence;

D. Plaintiff Joyce Sharon Fredrickson

E. Plaintiff Jerry Fredrickson

F. Robert Taylor, an employee of Ecolab, Inc.

G. Peter Sfakianos, M.D.:, expert orthopedic

H. Ron Adams, Ph.D.: expert economist

I. David Howitt, Ph.D.: expert chemical engineer

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 Exhibit “C”

 Plaintiff’s Exhibits – Schedules and Summaries.

1. All medical records, reports, films, diagnostic studies, statements,

billings, prescription receipts, and medical equipment receipts relative to

the care and treatment rendered to Plaintiff, JOYCE SHARON FREDRICKSON, by her

treating and consulting medical providers.

2. Incident/Accident Report, dated May 12, 2003.

3. Fifteen (15) photographs of the Hilltop Estates Retirement Residence, taken

by Denise Braund and Jerry Fredrickson.

4. Beautician Contract, dated June 28, 2000, between Hilltop Estates and

Sharon Fredrickson.

5. Plans, blueprints, and diagrams depicting the relevant portions of the facility known as Hilltop Estates.

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 Exhibit “D”

 Defendant Holiday Retirement’s Exhibits

1. Incident/Accident Report, dated May 12, 2003.

2. Ecolab owner’s manual.

3. Ecolab installation manual.

4. Ecolab service records invoices.

5. Photographs of premises.

6. Photographs of Ecolab products.

7. The beautician contract between plaintiff and defendant Holiday

Retirement Corp.

8. Diagram of the accident scene.

9. Records from Dr. Kim Chandler

10. Records from Dr. Paul Slosar

11. Records from Spine Care Medical Group

12. Records from Dr. Michael Hanley

13. Records from Dr. Guprecht Singh

14. Records from Hanger Prosthetics and Orthotics

15. Records from Dr. Patrick Campbell

16. Records from M.D. Imaging Inc.

17. Records from Dr. Harvinder Birk

18. Records from Dr. Leonard Soluniuk

19. Records from Seton Medical Center

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20. Records from Kevin Snyder PT 

21. Radiology films from M.D. Imaging Inc.

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