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Lorenzen v. Taste Traditions of Omaha, L.L.C.

United States District Court, D. Nebraska

April 27, 2017

JEFFREY LORENZEN, Plaintiff,
v.
TASTE TRADITIONS OF OMAHA, L.L.C., Defendant.

          MEMORANDUM AND ORDER

          Cheryl R. Zwart United States Magistrate Judge.

         Defendant has moved to extend the deposition deadline as to Dr. Sunil Bansal and to declare Dr. Bansal as unavailable for trial. (Filing No. 58). For the reasons stated below, the court finds that for the purposes of his intended testimony, Dr. Bansal was not untimely disclosed as a witness and Defendant has shown good cause for deposing him beyond the deposition deadline. As to whether Dr. Bansal will be permitted to testify by deposition at trial, if Dr. Bansal must testify live, the trial date will be re-set to accommodate his schedule.

         FACTUAL BACKGROUND

         On September 10, 2013, Defendant extended an offer to employ Plaintiff as a warehouse supervisor, provided Plaintiff passed a physical examination indicating he was capable of performing the job. As to Defendant, pre-employment physical examinations are performed by Horizon Rehabilitation & Occupational Care Center (“Horizon”). Plaintiff's examination was performed on September 13, 2013, and at that time, Plaintiff completed a physical questionnaire listing of his medical conditions and restrictions. On the questionnaire, Plaintiff stated he was unable to perform over-head or “out-in- front” work with his arms, and he could not lift more than 50 pounds. The examination confirmed these restrictions, and perhaps more.

         Defendant claims that to perform the essential functions of the warehouse supervisor position, the employee must be able to regularly and frequently:

• lift up to and above fifty pounds;
• perform overhead work;
• perform out-in-front of body work;
• exert up to seventy-five pounds of force occasionally; and
• bend, squat, walk, stand, and reach.

(Filing No. 37 at CM/ECF p. 16, ¶ 41). After considering Plaintiffs restrictions, Defendant retracted its job offer.

         Three days later, on September 16, 2013, Plaintiff was examined by Doctor Sunil Bansal (“Bansal”), for a workers compensation case against a different employer. (Filing No. 47-2). During this examination, Plaintiff described the following subjective symptoms and limitations:

         Neck:

Plaintiff reported or demonstrated decreased range of motion when turning his head ...

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