JENNIFER L. THURSTON, Magistrate Judge.
Raymond Vincent Ramone and Rita Yvonne Ramone assert the Government is liable for personal injuries sustained in a vehicular accident with mail carrier employed by the United States Postal Service. Plaintiffs seek monetary damages for their injuries pursuant to the Federal Court Claims Act, 28 U.S.C. § 2671. (See Doc. 1)
This Court has original jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1345(b), and supplemental jurisdiction for Plaintiff's claims arising under state law pursuant to 28 U.S.C. § 1367. In addition, the venue is proper in the United States District Court for the Eastern District of California. See 28 U.S.C. § 1391.
Pursuant to the FTCA, Plaintiffs are not entitled to a trial by jury. 28 U.S.C. § 2402.
The parties agree the following facts are undisputed:
(Doc. 34 at 2-3)
All remaining material facts are disputed, including, but not limited to:
1. Whether the injuries and/or damages Plaintiffs allege to have incurred are the result of Plaintiffs' own negligence and failure to exercise due care.
2. Whether the injuries and/or damages Plaintiffs allege to have incurred are the result of Mr. Recinos's negligence and/or failure to exercise due care.
3. Whether either of the parties contributed to the cause of the accident.
4. Whether Plaintiffs were damaged in any way by the accident.
None.
Plaintiffs "contend they properly have disclosed their treating medical providers (none of which is a "retained" expert, and none of which the United States chose to depose)." (Doc. 34 at 4) "The opinions that plaintiffs intend to obtain testimony regarding will be those opinions, including causation, which were formed within the course of treatment of [Plaintiffs], and thus not subject to the requirements under Rule 26(a)(2). Their respective disclosures also advised that they would be testifying as to the nature and extent of injuries sustained, the treatment rendered, and the medical costs of treatment to the respective plaintiffs." (Id.) Plaintiffs note that under "California case law, treating physicians can testify based on their own knowledge and experience regarding the cost of medical services." (Id.)
The Government asserts "Plaintiffs failed to disclose any expert witnesses regarding causation of injuries and/or future medical expenses pursuant to Rule 26(a)." (Doc. 34 at 4) The Government "will seek to preclude the testimony of any other witness not disclosed pursuant to Rule 26," noting that Rule 37(c)(1) "forbid[s] the use at trial of any information required to be disclosed by Rule 26(a) that is not properly disclosed." (Id., quoting Hoffman v. Constr. Protective Servs., 541 F.3d 1175, 1179 (9th Cir. 2008); Yeti by Molly, Ltd., 259 F.3d at 1106). Fed. R. Civ. P. 37(c)(1) provides:
(Doc. 34 at 4)
In addition, the Government observes: "[P]olice reports are generally excluded from evidence as hearsay except to the extent to which they incorporate firsthand observations of the officer." (Doc. 34 at 4, citing Annot., 69 A.L.R.2d 1148; Colvin v. United States, 479 F.2d 998, 1003 (9th Cir. 1973)) The statements by an adverse party to police officers are admissible.
The Court observes that if a provider is not obligated to provide a report, in the expert disclosure, the party must disclose "(i) the subject matter on which the witness is expected to present evidence under Federal Rule of Evidence 702, 703, or 705; and (ii) a summary of the facts and opinions to which the witness is expected to testify." Fed.R.Civ.P. 26(a)(2)(C). Though the parties filed their expert disclosures, it appears that they may not have filed their complete disclosure. Thus, the Court cannot determine whether they complied with Rule 26.
On the other hand, a treating physician who forms opinion based only on the treatment record before him or her—without resort to considering information not material to the course of treatment— the treating doctor need not provide a report. Anything else requires compliance with Fed.R.Civ.P.26 (a)(2)(C). Federal Rules of Civil Procedure 37 mandates the Court to refuse to allow the presentation of any expert witness if the party failed to comply with the disclosure requirements.
None.
In addition, plaintiffs seek a determination of zero comparative negligence on the part of plaintiff Ray Ramone.
The United States seeks dismissal of the Complaint. In the event Plaintiffs are successful in holding the United States liable for damages, the United States seeks a determination of comparative fault. Plaintiffs' damages, if any, are limited to the amounts set forth in their administrative claims, which in this case is $25,000 each. 28 U.S.C. § 2675(b). Plaintiffs' damages claims are also limited by their ability to show that their claimed injuries (including future medical expenses, if any) were caused by the motor vehicle accident.
None.
1. The following is a list of witnesses that the parties expect to call at trial, including rebuttal and impeachment witnesses. NO WITNESS, OTHER THAN THOSE LISTED IN THIS SECTION, MAY BE CALLED AT TRIAL UNLESS THE PARTIES STIPULATE OR UPON A SHOWING THAT THIS ORDER SHOULD BE MODIFIED TO PREVENT "MANIFEST INJUSTICE." Fed. R. Civ. P. 16(e); Local Rule 281(b)(10).
3. Upon the post pretrial discovery of any witness a party wishes to present at trial, the party shall promptly inform the court and opposing parties of the existence of the unlisted witnesses so the court may consider whether the witnesses shall be permitted to testify at trial. The witnesses will not be permitted unless:
The following is a list of documents or other exhibits that the parties expect to offer at trial.
NO EXHIBIT, OTHER THAN THOSE LISTED IN THIS SECTION, MAY BE ADMITTED UNLESS THE PARTIES STIPULATE OR UPON A SHOWING THAT THIS ORDER SHOULD BE MODIFIED TO PREVENT "MANIFEST INJUSTICE." Fed. R. Civ. P. 16(e); Local Rule 281(b)(11).
1.
2. Upon the discovery of exhibits after the discovery cutoff, a party shall promptly inform the court and opposing parties of the existence of such exhibits so that the court may consider their admissibility at trial. The exhibits will not be received unless the proffering party demonstrates:
On or before
1. At the exhibit conference, counsel will determine whether there are objections to the admission of each of the exhibits and will prepare separate indexes; one listing joint exhibits, one listing Plaintiffs' exhibits and one listing Defendant's exhibits. In advance of the conference, counsel must have a complete set of their proposed exhibits in order to be able to fully discuss whether evidentiary objections exist.
2. At the conference, counsel shall identify any duplicate exhibits, i.e., any document which both sides desire to introduce into evidence. These exhibits
All Joint exhibits will be pre-marked with numbers preceded by the designation "JT" (e.g. JT/1, JT/2, etc.). Plaintiffs' exhibits will be pre-marked with numbers beginning with 1 by the designation PX (e.g. PX1, PX2, etc.). Defendant's exhibits will be pre-marked with numbers beginning with 501 preceded by the designation DX (e.g. DX501, DX502, etc.). The parties SHALL number each page of any exhibit exceeding one page in length (e.g. PX1-1, PX1-2, PX1-3, etc.).
If originals of exhibits are unavailable, the parties may substitute legible copies. If any document is offered that is not fully legible, the Court may exclude it from evidence.
Each joint exhibit binder shall contain an index which is placed in the binder before the exhibits. The index shall consist of a column for the exhibit number, one for a description of the exhibit and one column entitled "Admitted in Evidence" (as shown in the example below).
3. As to any exhibit which is not a joint exhibit but to which there is no objection to its introduction, the exhibit will likewise be appropriately marked, i.e., as PX1, or as DX501 and will be indexed as such on the index of the offering party. Such exhibits will be admitted upon introduction and motion of the party, without further foundation.
4. Each exhibit binder shall contain an index which is placed in the binder before the exhibits. Each index shall consist of the exhibit number, the description of the exhibit and the three columns as shown in the example below.
5. On the index, as to exhibits to which the only objection is a lack of foundation, counsel will place a mark under the column heading entitled "Admissible but for Foundation."
6. On the index, as to exhibits to which there are objections to admissibility that are not based solely on a lack of foundation, counsel will place a mark under the column heading entitled "Other Objections."
After the exhibit conference, Plaintiff and counsel for the defendants
7. The Parties
Counsel who introduced exhibits at trial
The following is a list of discovery documents — portions of depositions, answers to interrogatories, and responses to requests for admissions — that the parties expect to offer at trial. NO DISCOVERY DOCUMENT, OTHER THAN THOSE LISTED IN THIS SECTION, MAY BE ADMITTED UNLESS THE PARTIES STIPULATE OR UPON A SHOWING THAT THIS ORDER SHOULD BE MODIFIED TO PREVENT "MANIFEST INJUSTICE." Fed. R. Civ. P. 16(e); Local Rule 281(b)(12).
Plaintiffs may utilize the deposition transcripts of Officer D. J. Ellis, Ray Ramone, and Rita Ramone and Leslie Konkin, M.D., as necessary. However, the original, certified transcript for each witness SHALL be lodged with the Court no later than
The United States may use discovery documents as rebuttal including, but not limited to: Plaintiffs' administrative claims, Plaintiffs' medical records (including SCOI, Bahamas Surgery Center, Bakersfield Memorial Hospital and others), Plaintiffs' deposition transcripts, Plaintiffs' discovery responses or lack thereof, Deposition transcript of Officer Elllis including, but not limited to: no injuries identified at the scene at 27:18-28:14 and 44:15-46:11; speed limit at the scene was 55 mph at 46:12-15; and Raymond Ramone said he was driving 65 mph at 46:16-47:3.
The original, certified transcript for each witness SHALL be lodged with the Court no later than
The United States will seek to preclude the testimony of any witness not disclosed pursuant to Rule 26, and to the extent any such testimony is allowed, the United States may request additional discovery. Plaintiffs did not disclose any retained expert regarding causation as required by Civil Rule 26(a)(2)(B). See Plaintiff's Expert Disclosure, Doc. 23. They also did not disclose any treating physician that would give an opinion on causation as required by Civil Rule 26(a)(2)(C). Id. The defense contends is now too late for Plaintiffs to introduce expert causation evidence and expert evidence regarding future medical expenses.
Plaintiffs will move to exclude any testimony to the effect that a differential of speed of 10 mph by the Ramone vehicle would have any effect on the cause of this accident. The United States would be required to offer expert testimony regarding accident reconstruction on such an issue. Neither side has designation of a qualified expert in this area.
The parties stipulate to the authenticity and admissibility of the records produced by the following entities:
None.
The parties report they "have discussed settlement but were unable to resolve this matter." (Doc. 34 at 12)
None.
None.
None requested.
The parties will seek an award of attorneys' fees as appropriate as a post-trial motion.
A bench trial is set for
The parties are relieved of their obligation under Local Rule 285 to file trial briefs. If any party wishes to file a trial brief, they must do so in accordance with Local Rule 285 and be filed on or before
Any party may, within 10 days after the date of service of this order, file and serve written objections to any of the provisions set forth in this order. Such objections shall clearly specify the requested modifications, corrections, additions or deletions.
None.
Strict compliance with this order and its requirements is mandatory. All parties and their counsel are subject to sanctions, including dismissal or entry of default, for failure to fully comply with this order and its requirements.
