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Lopez v. United States

United States District Court, S.D. California

March 21, 2017

ANAKAREN LOPEZ as person representative of SALOMON RODRIGUEZ, Plaintiff,
UNITED STATES OF AMERICA et al., Defendants.


          Hon. William V. Gallo United States Magistrate Judge

         In this discovery dispute over whether a second site inspection of an elevator platform aboard a United States Navy warship should be ordered, the Court considers a new argument raised on objection to the Court's prior Order. A telephonic discovery conference was held on March 16, 2017, and the parties presented their respective positions. The Court finds Plaintiff's new argument for a second inspection not persuasive and confirms its prior ruling denying the inspection.

         I. Background

         The factual and procedural background of this case were set forth in the Court's prior Order and will not be repeated here in detail. Nor will the Court rehash prior arguments made for or against the second inspection, as those arguments are presently before the Honorable John A. Houston on objection. Briefly, however, this case is about a very unfortunate workplace incident where the decedent fell to his death when he stepped off of an elevator platform and fell through a gap at the end of the platform while working as a contractor on the USS Boxer. At the time, the gap was obscured by milky-white plastic sheeting that surrounded the platform as a make-shift wall. Plaintiff alleges Defendants' negligence caused this unfortunate event.[1]

         When Plaintiff objected to the Court's denial of her request for a second inspection, she presented a new argument in favor of the inspection, and Judge Houston remanded the matter to the undersigned to consider the new argument.

         A. Plaintiff's New Argument

         An aft door ramp lowers to cover a gap between the subject weapons elevator and the ship's body when the elevator is in the raised position at the flight deck level of the USS Boxer. Plaintiff's counsel has not seen this ramp in person. He does not know its dimensions nor does he know the ramp's geometric shape. He mentioned numerous times that he does not know how much of the gap is covered by the ramp. He does not know how far down the ramp lowers and whether it touches the elevator platform. He is unable to ascertain all of this information using the photographs and technical documents and diagrams produced by the United States in discovery. And he can't determine how the accident happened by reconstructing the scene from another location.

         Counsel argued he has an “absolute right to go up there, lower that aft ramp, measure it, [2] photograph it, and make some kind of a logical determination as to whether it would have prevented the accident or not.” Later, counsel reiterated: “I have every right in the world to see the spot where this guy fell and make some kind of logical determination as to whether that aft ramp, had it had been lowered, would've prevented the accident and there's no way I can do that without looking at it and photographing it and measuring it myself.” Counsel argued he is litigating completely in the dark when it comes to the aft ramp at issue.

         B. Defendant United States of America's Counter-Argument

         Defense counsel began by stating Plaintiff was “being disingenuous” about litigating completely in the dark because he is unable to interpret the photographs and technical blueprints produced in discovery. According to the United States, Plaintiff has retained an expert witness who personally designed ship elevators for the Navy at “NAVSEA”-or Naval Systems Command.[3] That expert, presuming he or she is qualified, easily should be able to interpret the numerous photographs and design schematics[4] and then provide Plaintiff with answers to her counsel's questions.

         With respect to Plaintiff's counsel's concerns regarding the size and shape of the ramp and how much of the gap the ramp covers, defense counsel definitively represented that the ramp covers the gap in its entirety. This is because forklifts carrying live munitions travel over the ramp and would not do so if gaps existed.

         With respect to the purported need to reconstruct the accident to determine how it happened, counsel added: “We know how the guy fell. He walked through the plastic. He didn't know there was [unintelligible] behind the plastic. He backed into it and fell through the hole. The hole was there because the ramp was up.” Counsel then added: “He [Plaintiff's counsel] has everything he needs [unintelligible] his expert, who worked at NAVSEA, who designed elevators on warships to determine what happened and how it happened. You don't need an expert to tell you the accident happened because for whatever reason the ramp was up, the guy stepped through plastic and fell through a hole. That's this case. That's the case. It's not a complicated case. It's a simple case.” With respect to the existence of more accurate, less burdensome methods of obtaining the same discovery, the United States' counsel noted: “Here they want to take a picture of an elevator that looks nothing like it did on the day of the accident ..... The pictures that were produced in discovery with the containment up with everything as it was exactly the moment this accident happened. That's the best evidence of how it looked and how it was configured and what visual cues the decedent had. He's got the best evidence. Taking a picture three [or] four years later [of a] completely open elevator . . . it's not how the elevator looked on the day of the accident. It's not the same elevator.” Finally, in response to the Court's inquiry, the United States represented, that it is willing to stipulate (without conceding liability or negligence) that had the subject aft ramp been in the lowered position, it would have covered the gap through which the decedent fell. Counsel later added that had the ramp been down, a gap big enough for a human to fall through would not have existed. When asked by the Court whether the lowered ramp would have prevented the decedent's fall, the United States' counsel stated “yes, there would have been no gap for him to fall through.”

         II. Supplemental Legal Standard

         As an in initial matter, contrary to Plaintiff's strenuous assertion, there is no “absolute right” to any particular piece of discovery. All discovery is subject to the limitations set forth in Federal Rule of Civil Procedure 26(b)(2)(C) which states: “[T]he court must limit the frequency or extent of discovery otherwise allowed by these rules . . . if it determines that: (i) the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive.” Rule 26(b)(1) provides for a proportionality analysis when discovery is being sought or opposed. Rule 26(c) provides that courts may issue protective orders when the moving party has shown “good cause” and the order is necessary to “protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense.” And Rule 26(c)(1)(A) allows the Court to prohibit disputed discovery altogether. In the context of inspections, district courts in this Circuit have applied a balancing test to determine whether discovery should be ordered given the utility of the discovery in “the search for the truth balanced against the burdens and dangers created by” it. Belcher v. Bassett Furniture Indus., Inc., 588 F.2d 904, 908 ...

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