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Acosta v. United States

United States District Court, D. New Mexico

March 31, 2017

JOSE ACOSTA, Jr., Plaintiff,
v.
UNITED STATES OF AMERICA, Defendant.

          ORDER RESULTING FROM PRETRIAL CONFERENCE

          STEPHAN M. VIDMAR United States Magistrate Judge

         THIS MATTER is before the Court on issues heard at the pretrial conference on March 30, 2017. The Court heard from counsel on their exhibit and witness lists. The Court also discussed at the pretrial conference the following matters: the trial schedule, opening statements, witness order and availability, and courtroom technology. Having reviewed the pertinent filings and relevant law, and being otherwise fully advised in the premises, the Court makes the following rulings:

         Exhibits

         Consolidated Exhibits

         The parties filed a Consolidated Exhibit List on March 20, 2017. [Doc. 61]. The Court admits into evidence Exhibits 1-83, all exhibits in the Consolidated Exhibit List.

         Defendant's Exhibits

         Defendant filed an Exhibit List on March 20, 2017. [Doc. 58]. Plaintiff objected to Defendant's Exhibit G on March 27, 2017. [Doc. 66]. Defendant filed an Amended Exhibit List on March 28, 2017. [Doc. 69]. The Court admits into evidence Exhibits E and H from Defendant's Amended Exhibit List. Plaintiff's objection to Defendant's Exhibit G is SUSTAINED; the Court excludes from evidence Exhibit G. The Court also excludes as cumulative all other exhibits in Defendant's Exhibit List [Doc. 58] and Amended Exhibit List [Doc. 69].

         Witnesses

         Plaintiff filed a Witness List on March 20, 2017. [Doc. 60]. Defendant did not respond or object to it. Defendant filed a Witness List on March 20, 2017. [Doc. 57]. Plaintiff objected to Defendant's proposed witness, Javier Rivera, identified by Defendant as a “[r]ebuttal witness on train operations utilized by Union Pacific Railroad, ” on March 27, 2017. [Doc. 66]. Plaintiff's objection is SUSTAINED. However, the Court may reconsider its ruling if Plaintiff elicits testimony from one of its witnesses or otherwise introduces evidence on this subject.

         Findings of Fact and Conclusions of Law

         Plaintiff filed his Proposed Findings of Fact and Conclusions of Law on March 20, 2017. [Doc. 62]. Defendant filed no response or objection. Defendant filed its Proposed Findings of Fact and Conclusions of Law on March 20, 2017. [Doc. 59]. Plaintiff objected to Defendant asserting “the affirmative defense of contributory negligence.” [Doc. 67]. The Court will defer ruling on this issue. The Court notes that New Mexico, whose law the parties agree governs this case, has adopted a pure comparative negligence scheme in apportioning fault in negligence cases. See Scott v. Rizzo, 1981-NMSC-021, 96 N.M. 682; Bartlett v. New Mexico Welding Supply, Inc., 1982-NMCA-048, 98 N.M. 152.

         Other Matters

         Trial Schedule

         The Court has set aside four days for trial beginning April 18, 2017. Court will begin at 8:30 a.m. and conclude by 5:00 p.m. each ...


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