The opinion of the court was delivered by: John A. Mendez United States District Court Judge
AMENDED PRETRIAL CONFERENCE ORDER
Pursuant to court order, a Pretrial Conference was held on August 17, 2012 before Judge John Mendez. Douglas A. Gessell appeared as counsel for plaintiff; Peter H. Cuttitta appeared as counsel for defendant. After hearing, the court makes the following findings and orders:
Jurisdiction is predicated upon 28 U.S.C. § 1332(a)(2), and has previously been found to be proper by order of this court, as has venue. Those orders are confirmed.
Both parties have demanded a jury trial.
III. STATEMENT TO BE READ TO JURY
Seven (7) days prior to trial the parties shall E-file a joint 5 statement of the case that may be read to the jury at the beginning 6 of jury selection. 7
The following facts are undisputed:
1. Plaintiff, MERCEDES MATAMOROS, is the mother of the deceased, Juan Matamoros-Flores.
2. Juan Matamoros-Flores was the only child of Plaintiff, MERCEDES MATAMOROS.
3. Juan Matamoros-Flores was born on March 11, 1986, and was age 25 at the time of the accident.
4. Juan Matamoros-Flores was employed by the Squeeze Inn restaurant as of the date of the accident.
5. Wire transfers between the deceased, Juan MatamorosFlores, and his mother between April 2009 and April 2011 total $7,945.00 Average annual contributions by the deceased to his mother were $3,972.50, or $331 per month.
6. On April 17, 2011, at approximately 8:10 p.m., Juan Matamoros-Flores was walking westbound with his back to traffic along Donner Pass Road, in Truckee, California.
7. At the time of the accident it was dark outside, and rain was falling.
8. At the location of the accident, pavement markings on Donner Pass Road were faint and difficult to see from a moving vehicle.
9. There was no pedestrian cement sidewalk in the general
area of the accident. 3
10. At the time of the accident Juan Matamoros-Flores was
wearing a dark jacket, dark jeans and white shoes. 5
11. The records for the cell phone Juan Matamoros was
carrying at the time of the accident, show an outgoing call 7
beginning at 7:48 p.m. and ending at 8:05 p.m. 8
12. From approximately 6:00 to 8:00 p.m., the Defendant, RONALD SOSNOWSKI and his wife, BARBARA, ate dinner, and consumed wine, at a restaurant in downtown Truckee approximately 2 miles from the scene of accident.
13. Defendant SOSNOWSKI drove his 2003 Mercedes sport utility vehicle from the restaurant westbound on Donner Pass Road to the place where the accident occurred.
14. Defendant SOSNOWSKI was operating his vehicle at a speed below the posted speed limit of 35 miles per hour immediately before the accident.
15. The vehicle driven by Defendant SOSNOWSKI struck Juan Matamoros-Flores.
16. Immediately following the accident, Barbara Sosnowski, the wife of Defendant SOSNOWSKI called 911 and rendered aid to the injured pedestrian.
17. The Truckee Police and other emergency personnel responded to the accident scene.
18. Prior to 8:41 p.m., Officer Woodard of the Truckee Police Department administered a field sobriety test to Defendant SOSNOWSKI.
19. At approximately 8:41 p.m., Officer Woodard of the
Truckee Police Department administered a preliminary alcohol 3 screening device test to Defendant SOSNOWSKI which showed a blood 4 alcohol level of .112.
20. At approximately 8:48 p.m., the Truckee Police arrested Defendant SOSNOWSKI for driving under the influence of alcohol.
21. Defendant SOSNOWKSKI subsequently underwent a test of his blood at approximately 9:12 p. m., which identified his blood 9 alcohol level at that time as 0.12%.
22. As a result of the impact with the SOSNOWSKI vehicle, Juan Matamoros-Flores died on April 18, 2011.
23. The medical expenses incurred by Juan Matamoros-Flores as a result of the accident in the amount of $92,071.08, were reasonable and necessary.
24. At the time of the accident, Defendant SOSNOWSKI had a blood alcohol level in excess of 0.08%.
25. Defendant SOSNOWSKI admits partial responsibility for the accident.
26. The photographs and videotapes of the accident scene and the involved vehicle made by the Truckee Police Department on the date of the accident, and the subsequent day and evening are accurate representations of the scenes depicted at the time the photographs and videos were taken.
27. The following documents are deemed authentic:
a. Medical records for Juan Matamoros
b. Cell phone records for Juan Matamoros
c. Cell phone records for Ronald Sosnowski
d. Cell phone records for Barbara Sosnowski
e. Cell phone records for Alec Sosnowski
f. Toxicology records for Juan Matamoros
g. Toxicology records for Ronald Sosnowski
h. Receipt from Pianeta Restaurant dated April 17, 2011
i. Wire transfer records for Tempo Financial
j. Subpoenaed employment records for Juan Matamoros
V. DISPUTED FACTUAL ISSUES
1. The comparative fault of the pedestrian, including:
a. the position of the pedestrian upon the roadway immediately before, and at the time of the accident;
b. his visibility to oncoming traffic immediately before the accident; and
c. The effect of the pedestrian's alcohol level upon his conduct at the time of the accident.
2. The degree of fault to be assessed against Defendant SOSNOWSKI, including:
a. The position of Defendant SOSNOWSKI's vehicle on the roadway immediately before, and at the time of, the accident;
b. The quantity of wine consumed by Defendant SOSNOWSKI at dinner on the evening of the accident;
c. Whether or not Defendant SOSNOWSKI was impaired by alcohol at the time of the accident; and
d. Whether or not any alcohol impairment from which Defendant SOSNOWSKI may have suffered caused or contributed to the accident.
3. The amount of Plaintiff's damages.
VI. DISPUTED EVIDENTIARY ISSUES
1. The admissibility of any evidence of the defendant's
blood alcohol level at the time of the accident, in light of his 4
admission that his blood alcohol level was in excess of .08% at 5 that
time. This issue should be resolved by motion in limine. 6
2. The admissibility of evidence relating to Defendant
SOSNOWSKI's plea of no contest to, and conviction of, a charge of 8 driving a motor vehicle while having a blood alcohol level in 9 excess of .08%. This issue should be resolved by motion in limine.
3. The admissibility of any testimony by Raymond C. Kelly, Ph.D. regarding the retrograde analysis which he performed in this case pursuant to Rule 702 of the Federal Rules of Evidence, and Daubert v. Merrell Dow Pharmaceuticals, Inc. (1993) 509 U.S. 579. This issue should be resolved by motion in limine.
4. The admissibility of testimony by Ted Kobayashi that "there does not appear to be a reason for Mr. Matamoros to cross the road at that location" (report, p. 4); that the defendant failed to exercise reasonable care (report, p. 5), or that the defendant "should have been able to stop or slow" (report, p.5). These issues should be resolved by motion in limine.
5. The admissibility of testimony by Raymond Kelly, Ph.D. regarding the standard of care for motorists. This issue should be resolved by motion in limine.
6. The admissibility of evidence regarding Defendant SOSNOWSKI's financial status as part of any claim on the part of the Plaintiff for the recovery of exemplary damages. California Civil Code section 3295(a) expressly provides that the court may, for good cause, grant any defendant a protective order requiring the plaintiff to produce evidence of a prima facie case of 2 liability for exemplary damages pursuant to Section 3294 prior to 3 the introduction of evidence of the financial condition of the 4 defendant. This issue should be resolved by motion in limine. 5
7. The admissibility of evidence relating to the decedent's 6 pain and suffering following the accident. Section 377.34 of the 7 California Code of Civil Procedure expressly bars the recovery of 8 such damages. This issue should be resolved by motion in limine. 9
8. The amount Plaintiff may recover for the deceased's post-accident medical expenses. Howell v. Hamilton Meats & Provisions, Inc. (2011) 57 Cal. 4th 541; 257 P. 3d 81, provides that to the extent that Plaintiff's decedent's expenses for medical care and services have been paid, either by Plaintiff or by an independent source, the maximum amount the plaintiffs may recover for that care is the amount paid, and accepted as payment in full, by the medical care provider, despite the fact that it is less than the prevailing market rate or rates otherwise charged by the provider for that same care or those same services.
9. The admissibility of evidence relating to Defendant Sosnoski's insurance coverage. This issue should be resolved by motion in limine.
10. The admissibility of the immigration status of Juan Matamoros-Flores. This issue should be resolved by motion in limine.
11. The admissibility of testimony by Robert Snook regarding whether the injuries to Juan Matamoros-Flores are consistent with the speed and direction of impact. This issue should be resolved by motion in limine.
12. The admissibility of expert opinions that do not rise to 2 the level of medical/scientific probability. This issue should be 3 resolved by motion in limine. 4
13. The admissibility of evidence regarding witness Barbara 5 Sosnowski's impairment by alcohol or the lack of same. This issue 6 should be resolved by motion in limine; 7
14. The admissibility of all or any portion of the audiotape 8 of the California DMV's Hearing regarding the revocation/suspension 9 of Defendant Sosnowski's driver's license. This issue should be resolved by motion in limine;
15. Because expert discovery was not completed by the date of this Order, the parties agree that other motions in limine relating to the admissibility of expert testimony only identified as being potentially problematic during those depositions may be appropriate.
16. The admissibility of any testimony or evidence that Sosnowski may have a blood alcohol level at or below .08%. This issue should be resolved by a motion in limine.
17. The admissibility of any testimony or evidence by Robert Snook that Juan Matamoros was crossing the street at the time of the accident. This issue should be resolved by a motion in limine.
18. Thye admissibility of any testimony or evidence by Jeff Zehnder regarding the procedures used by Officer Woodward in determining Ronald Sosnowski's blood alcohol level and level of alcohol ...