United States District Court, D. Nebraska
THOMAS D. THALKEN, Magistrate Judge.
This matter is before the court on four motions. The first motion is Rick Bremmer's (Bremmer) Motion to Intervene; Waive or Delay Order on Costs and Fees Prior to Refiling; and Extend Case Progression Deadlines (Filing No. 82). The defendants filed a brief (Filing No. 94) and index of evidence (Filing No. 95) in opposition. Bremmer filed a brief (Filing No. 107) in reply. The second motion is the defendants' Motion to Strike (Filing No. 89). The defendants filed a brief (Filing No. 90) and index of evidence (Filing No. 91) in support of the motion seeking to strike the plaintiff's designation of expert witnesses as untimely. The plaintiff filed a brief (Filing No. 96) in opposition. The defendants filed a brief (Filing No. 109) and index of evidence (Filing No. 110) in reply. The third motion is the plaintiff's Motion to Continue and Extend Deadlines (Filing No. 97). The plaintiff filed a brief (Filing No. 98) and index of evidence (Filing No. 99) in support of the motion. The defendants filed a brief (Filing No. 109) and index of evidence (Filing No. 110) in opposition. The plaintiff filled a brief (Filing No. 111) in reply. The fourth motion is the plaintiff's Motion to Compel (Filing No. 102). The plaintiff filed a brief (Filing No. 103) and index of evidence (Filing No. 104) in support of the motion. The defendants filed a brief (Filing No. 112) and index of evidence (Filing No. 113) in opposition.
The plaintiff's action arises from an injury Bremmer sustained on the defendant Appleton Electric, LLC's (Appleton) premises. See Filing No. 1 Ex. 1 - Complaint. On May 25, 2011, Bremmer was on Appleton's premises to deliver an order for Waste Connections, Inc. (WCI) when Bremmer fell into an open pit approximately twenty feet by twenty feet wide and five feet deep. Id. ¶¶ 9-13. Bremmer alleges he sustained a torn rotator cuff and herniated disc. Id. ¶¶ 18-19. According to Bremmer's treating physician for Bremmer's back injury, Bremmer reached maximum medical improvement for his work related injury on September 27, 2012. See Filing No. 110-2 Ex. 2 - December 31, 2012, Letter. According the physician treating Bremmer's shoulder injury, Bremmer reached maximum medical improvement for his rotator cuff on July 3, 2013. See id. - July 3, 2013, Progress Note.
On September 18, 2012, Bremmer and WCI filed the Complaint in the District Court of Platte County, Nebraska, seeking recovery for Bremmer's alleged injuries and WCI's payment of workers compensation benefits to Bremmer. See Filing No. 1 Ex. 1 - Complaint. Generally, the plaintiffs alleged the defendants' negligence caused Bremmer's injuries. Id. ¶¶ 18-21. The defendants deny the plaintiff's allegations and assert the affirmative defenses of comparative negligence, contributory negligence, and assumption of the risk. See Filing No. 1-1 p. 8 - Answer ¶¶ 3-4. On December 20, 2012, the defendants removed this action from the District Court of Platte County, Nebraska, to the United States District Court for the District of Nebraska. See Filing No. 1 - Notice of Removal. On January 4, 2013, attorney Christopher A. Sievers (Mr. Sievers) entered his appearance for Bremmer and WCI. See Filing No. 12 - Appearance of Counsel. On January 17, 2013, the parties filed their Rule 26(f) Report. See Filing No. 18 - Report. The parties' Rule 26(f) Report listed the elements of the plaintiffs' negligence claim and stated the defendants disputed all elements of the plaintiffs' claims, including the third element, causation. See id. Thereafter, the parties, including Bremmer, engaged in discovery. See, e.g., Filing Nos. 23, 28-30, 37, and 44.
On May 29, 2013, Mr. Sievers provided a letter to the court, indicating Bremmer underwent rotator cuff surgery on January 7, 2013, and was not expected to reach maximum medical improvement until August 2013. See Filing No. 36 - May 29, 2013, Letter. On May 30, 2013, the parties moved to reschedule a June 7, 2013, planning conference to September 5, 2013, to allow Bremmer time to reach maximum medical improvement. See Filing No. 40 - Joint Motion. The court granted the joint motion and rescheduled the planning conference for September 5, 2013. See Filing No. 41 - Text Order.
On August 27, 2013, the plaintiffs filed a Memorandum to Court on Mediation and Motion to Continue Expert Report Deadline. See Filing No. 58. The plaintiffs represented Bremmer's "treating doctor [ ] recently opined Mr. Bremmer [ ] reached maximum medical improvement for his shoulder" and the plaintiffs were waiting on Bremmer's final impairment rating and work restrictions. See id. For this reason, the plaintiffs requested a continuance of the expert disclosures deadline. See id. On September 6, 2013, the court entered an Order Setting Final Schedule for Progression of Case. See Filing No. 60. The order gave the plaintiffs until November 4, 2013, to disclose expert witnesses in accordance with Fed.R.Civ.P. 26(a)(2), the defendants until December 23, 2013, and the plaintiff until January 13, 2014, for rebuttal experts. See id.
On September 26, 2013, the defendants filed a notice to take Bremmer's deposition, which date was agreed upon between counsel for the parties. See Filing No. 62 - First Notice; Filing No. 95-1 Ex. 1 - Newman Aff. ¶ 6. On October 15, 2013, Mr. Sievers informed defense counsel by fax: "Rick Bremmer will not be available to attend the deposition set for October 23, 2013, at 10:00 a.m." See Filing No. 108-3 - Newman October 21, 2013, Fax. Defense counsel responded stating the defendants would not withdraw the notice for deposition and expected Bremmer to attend. See id. Bremmer did not appear for the scheduled deposition. See Filing No. 95-4 Ex. 4 - First Depo. Transcript (TR.). The defendants served notice for another deposition of Bremmer on November 11, 2013. See Filing No. 67 - Second Notice. Bremmer did not appear for the second deposition. See Filing No. 95-5 Ex. 5 - Second Depo. TR.
On November 26, 2013, Bremmer moved to voluntarily dismiss his claims without prejudice because "Bremmer no longer wishe[d] to pursue his claim for loss of earning capacity and future medical in conjunction with [WCI]." See Filing No. 68. On December 20, 2013, the court granted Bremmer's motion with the condition that before he refile his claims against the defendants, he pay the defendants' attorneys' fees and costs in defending the action against Bremmer. See Filing No. 73 - Order.
Following Bremmer's dismissal, the court entered an Amended Order Setting Final Schedule for Progression of Case on December 20, 2013. See Filing No. 74. The parties had until March 28, 2014, to complete depositions. See id. Additionally, the defendants were given until February 21, 2014, to disclose their expert witness reports and the plaintiff, now only WCI, was given until March 13, 2014, to disclose rebuttal experts. See id. The court set the final pretrial conference for April 24, 2014, and jury trial for May 12, 2014. See id.
In early January 2014, Bremmer's new counsel notified defense counsel of Bremmer's intent to rejoin the lawsuit. See Filing No. 108-1 Ex. 1 - Brown Aff. ¶ 3; 108-4 Ex. 4 - January Emails. Defense counsel responded the defendants would seek fees and costs as allowed pursuant to the court's December 20, 2013, Order. See Filing No. 108-4 Ex. 4 - January Emails. At that time, Bremmer's counsel asked for an itemized list of fees and costs. Id. On March 20, 2014, Bremmer's counsel again asked for an itemized list of fees and costs. See Filing No. 108-5 Ex. 5 - March Emails.
On February 21, 2014, the defendants timely served their Rule 26(a)(2) disclosures. See Filing No. 75 - Defendants' Certificate of Service; Filing No. 91-1 Ex. 1 - Newman Aff. ¶ 3. The defendants identified two expert witnesses: Alfred P. Bowles, II, M.D. (Dr. Bowles), a medical doctor and biomechanics expert, and Michael D. Downey (Mr. Downey), an occupations safety expert. See Filing No. 91-2 Ex. 2 - Defendants' Rule 26(a)(2) Disclosures. The defendants served all information required in Rule 26(a)(2)(B). See id. On February 28, 2014, the parties filed their proposed witness lists. See Filing No. 76 and 77.
On March 13, 2014, the plaintiff served its Rule 26(a)(2) disclosures and identified for the first time three potential expert witnesses: Ted Stricklett (Mr. Stricklett), a vocational and loss of earnings expert, John Bonselle (Mr. Bonselle), a safety and construction expert, and Dr. John Kuhnlein (Dr. Kuhnlein), an occupational medical doctor. See Filing No. 83 - Plaintiffs' [sic] Rule 26(a)(2) Disclosures. The plaintiff's disclosure included only the names and resumes for the potential expert witnesses. See id. The defendants have not received the plaintiff's potential expert witnesses' reports as required by Rule 26. See Filing No. 91-1 Ex. 1 - Newman Aff. ¶ 4.
On March 18, 2014, and April 2, 2014, the plaintiff requested the defendants to designate a corporate representative. See Filing No. 99-1 Exs. 1 and 2 - Mar. 18, 2014, and Apr. 2, 2014, Letters. In response, the defendants emailed plaintiff's counsel and indicated the defendants could not designate a corporate representative because the plaintiff never provided a list of matters for examination. See Filing No. 110-3 Ex. 3 - Mar. 20, 2014, Email; Filing No. 104-1 Ex. 3 - Apr. 3, 2014, Letter.
On March 11, 2014, Bremmer filed the motion to intervene. See Filing No. 82. On March 20, 2014, and March 24, 2014, defense counsel informed Bremmer's counsel the defendants incurred attorney's fees and costs amounting to $11, 294, later amended to $10, 998.34. See Filing No. 95-1 Ex. 1 - Newman Aff. ¶ 13; Filing No. 95-9 Ex. 9 - Itemized Expenses.
1. Bremmer's Motion to ...