IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION

THOMAS S. SMITH,                                                                                          
                                                                                                                                 
                                        Plaintiff,                                                                  
                                                                                                                                 
                    v.                                                                                CIVIL ACTION NO. 82-Z-1988-S                                                  
                                                                                                                                 
COLLINS CONSTRUCTION CO., INC.; et al.,

                                     Defendants,

******************************

ELIZABETH D. SMITH,

                                        Plaintiff,

             v.                                                                                         CIVIL ACTION NO. 82Z-1999-S

COLLINS CONSTRUCTION CO., INC.; et al.,

                                            Defendants.

PRETRIAL ORDER

                        A pretrial conference was held in the above cases on January 7, 1983, wherein, or as a result of which, the following proceedings were held and action taken:

        1. Appearances. Appearing at the conference were:

(Leave space for completion by the court.)

 

        2. Jurisdiction and venue. Subject matter jurisdiction exists under 28 U.S.C. ' 1332 by reason of the amounts in controversy and the admitted diversity of citizenship. Personal jurisdiction and venue are not contested.

        3. Consolidation. These actions (CV 82-Z-1998-S and CV 82-Z-1999-S) involve common questions of law and fact and are hereby ORDERED consolidated under Rule 42 for further proceedings and trial.

        4. Parties and trial counsel. Any fictitious defendants are deleted; the parties before the court are correctly named as set out below; and the designated trial counsel for the parties are as set out below:

PARTIES                                                                          TRIAL COUNSEL

Plaintiffs:      Thomas S. Smith                                                             Robert Stephens (Brown, Brownlee & Stephens)
                                                                                                            Gene Baird (Baird & Jones)

                      Elizabeth D. Smith                                                     Same

Defendants:    Collins Construction Co., Inc.                                     James Johnson & Robert Donovan
                                                                                                            (Phillips & Randall)

                       James K. Adams                                                     Same

        5. Pleadings. The following pleadings (with the modifications contained in this order) have been allowed: complaint (as amended November 4, 1982) on behalf of each plaintiff; answer on behalf of defendants to each complaint. The answers filed to the original complaints suffice as answers to the amended complaints without refiling.

        6. Statement of the case.

                        (a) Agreed summary. This case arises out of a collision between two vehicles which occurred Friday afternoon, August 5, 1981, at the intersection of 21st Street and 5th Avenue South in the city limits of Birmingham, Alabama. An automobile owned and then being operated by plaintiff Thomas S. Smith (and in which his wife, plaintiff Elizabeth D. Smith, was a passenger) was proceeding northward on 21st Street (a one-way street for northbound traffic). A truck owned by defendant Collins Construction Co., Inc., and then being operated by the other defendant, James K. Adams, was proceeding eastward on 5th Avenue South (two-way traffic). A standard traffic control device (green-yellow-red lights) governed traffic entering the intersection and was functioning on this occasion. Both drivers claim to have had the green light. The corporate defendant admits that Adams was its employee and was acting within the line and scope of such employment at the time.

                        (b) Plaintiffs= positions. Plaintiff Thomas Smith seeks $75,000.00 in compensatory damages for his own personal injuries, medical expenses and lost wages, for property damage to his automobile, and for his wife=s medical expenses (past and future) and the loss of her services and consortium (past and future). Plaintiff Elizabeth Smith seeks $125,000.00 in compensatory damages for her personal injuries and disfigurement (past and future). Plaintiffs claim that these damages were proximately caused by the negligence of the defendants, asserting that Adams was negligent in (1) violating Ala. Code '' 32-5-32 and 32-5-35 (running yellow or red light) and/or (2) failing to exercise ordinary care under the circumstances. Plaintiffs withdraw any contention of wanton misconduct on the part of the defendants. Plaintiff Thomas Smith denies any contributory negligence on his part.

                        (c) Defendants= positions. Defendants deny any negligence on the part of Adams and contest the amount of damages claimed by plaintiffs. As to the claims made by plaintiff Thomas Smith, defendants assert that Smith was himself contributorily negligent by (1) violating Ala. Code '' 32-5-32 and 32-5-35 and/or (2) failing to exercise ordinary care under the circumstances. Defendants withdraw any contention of contributory negligence on the part of plaintiff Elizabeth Smith.

        7. Discovery and other pretrial procedures.

                        (a) The parties are given leave to proceed with further discovery provided it is commenced in time to be completed by _____________________________ (at least _______ days prior to trial).

                        (b) Pending discovery motions:

                        (List such motions, if any, with space for the court=s rulings.)

**8. Trial. (Jury case) The parties expect the trial to last _____ days.

                        When the case is called for trial, the parties shall present to the court any special questions or topics for voir dire examination of the jury venire (in addition to their interest in ___________________________ _______________________ [defendant=s insurer]); and, to the extent the same can be anticipated, any requests for instructions to the jury (including extracts of any statutes on which instructions are requested).


                        ORDERED this ___________ day of _________________________ 19______, that the above provisions be binding on all parties unless modified by further order for good cause shown.

 

                                                                                  
      UNITED STATES DISTRICT JUDGE          
INGE P. JOHNSON                       


** For nonjury cases, the following should be substituted for paragraph 8:

        8. Statement of agreed and disputed facts.

                        (a) By 17 calendar days before trial, plaintiffs= counsel shall submit to defendants= counsel a statement setting forth the principal facts proposed to be proved by plaintiffs in support of their claim as to liability and damages.

                        (b) By 10 calendar days before trial, defendants= counsel shall return the statement to plaintiffs= counsel, indicating thereon those factual contentions of the plaintiffs with which they disagree and adding thereto those additional facts proposed to be proved by the defendants.

                        (c) By three calendar days before trial, plaintiffs= counsel shall indicate thereon those factual contentions of the defendants with which they disagree and shall file the modified statement, serving a copy thereof on opposing counsel. While it is not necessary for plaintiffs= counsel to retype the final product, it may be helpful in many cases for this to be done before filing. If retyped, it is preferable to have all agreed facts, regardless of by whom proposed, collected under one heading and to have the respective additional facts proposed by the parties, which facts are in dispute, collected under separate headings.

                        (d) In stating facts proposed to be proved, counsel shall do so in simple, declarative, consecutively numbered sentences, avoiding Acolor words,@ labels and legal conclusions. In indicating disagreement with a proposed fact, counsel shall do so by deletion or interlineation of particular words and phrases so that the nature of the disagreement will be clear. Objections to the admissibility of a proposed fact (whether as irrelevant or on other grounds) may be made at trial and, without court order, may not be used to avoid indicating agreement or disagreement with the truth of the proposed fact.

(Revised 10/20/2005 - IPJ)