United States District Court, E.D. California
AMENDED FINAL PRETRIAL ORDER
March 7, 2017, this court issued a final pretrial order in
this action. (Doc. No. 185.) National Railroad Passenger
Corporation and Barbara Neu filed their filed objections on
March 20, 2017. (Doc. No. 186.) Rigoberto Jimenez, Jimenez
Trucking, and Young's Commercial Transfer, Inc. filed
their objections on March 21, 2017. (Doc. No. 187.) Celia
Ramirez filed a response to defendants' objections on
March 28, 2017. (Doc. No. 188.) Having considered the
parties' submissions, the court now issues this amended
final pretrial order.
original complaint in this action was filed September 10,
2013, by National Railroad Passenger Corporation
(“Amtrak”) against Young's Commercial
Transfer, Inc. (“Young's”) and Rigoberto
Fernandez Jimenez, individually and d/b/a Jimenez Trucking.
(Doc. No. 1.) On September 5, 2014, that action was
consolidated with Ramirez v. Jimenez, , Case No.
1:13-cv-02085. (Doc. No. 27.) On January 25, 2016, this court
dismissed the parties in the lead case of the consolidated
action, leaving claims brought by Celia Ramirez against
Rigoberto Jimenez, Jimenez Trucking, Amtrak, Amtrak engineer
Barbara Neu, BNSF Railway Company (“BNSF”), and
Young's, and claims brought in a cross-complaint by
Rigoberto Jimenez, Jimenez Trucking, and Young's against
Amtrak and Barbara Neu. (Doc. No. 52.) On April 18, 2016, the
parties stipulated to dismissal of BNSF as a party to the
action. (Doc. No. 83.) On June 28, 2016, this court issued an
order granting in part defendants' motion for summary
judgment, leaving only Celia Ramirez's claims against
Amtrak, Barbara Neu, Rigoberto Jimenez, Jimenez Trucking, and
Young's, as well as the cross-complaint by Rigoberto
Jimenez, Jimenez Trucking, and Young's against Amtrak and
Barbara Neu. (Doc. No. 94.)
December 5, 2016, following the issuance of the court's
amended final pretrial order (Doc. No. 111), defendants
collectively filed a stipulation wherein they agreed to: (i)
admit joint and several liability to plaintiff Celia Ramirez
for the injuries and damages, if any, arising out of the
subject collision on September 19, 2011; and (ii) dismiss all
cross-complaints against each other. (Doc. No. 151.)
December 6, 2016, the jury trial in this action commenced.
The jury, however, was unable to reach a verdict. (Doc. No.
172.) The court held a status conference on February 14,
2017, and agreed to issue a new pretrial order in preparation
for retrial of the action, taking into account the
defendants' stipulation of December 5, 2016 in which they
admitted liability. (Doc. No. 183.) As noted above, the court
issued its final pretrial order on March 7, 2017. (Doc. No.
light of defendants' admission of liability, plaintiff
Celia Ramirez now proceeds only on her negligence claims
against defendants Amtrak, Barbara Neu, Rigoberto Jimenez,
Jimenez Trucking, and Young's with respect to causation
is predicated on 28 U.S.C. § 1331. This court exercises
jurisdiction of plaintiff's state law claims pursuant to
28 U.S.C. § 1367(a). Jurisdiction is not contested.
Venue is proper pursuant to 28 U.S.C. § 1391 and is not
parties have demanded a jury trial.
Road is a two-lane, asphalt-paved road located in Modesto,
California, that runs north and south, with one lane for
travel in each direction.
lanes of travel on Geer Road were separated by solid double
Northbound traffic on Geer Road travels over a railway grade
crossing before reaching an intersection with Santa Fe
Avenue, a street parallel to the rail tracks, which has a
stop sign thirty three feet south of its southern edge.
rail crossing and the grade crossing warning system are on
property owned and maintained by BNSF Railway.
September 19, 2011, traffic control for northbound motorists
on Geer road included the following:
i. highway-rail grade crossing pavement markings
approximately 680 feet south of the crossing;
ii. an advance highway-rail grade crossing warning sign,
located approximately 308 feet south of the crossing;
iii. a stop line on the pavement located approximately thirty
five feet south of the crossing;
iv. a mast mounted reflectorized crossbuck warning sign that
was also equipped with red flashing warning lights;
v. a warning bell; and
vi. a crossing gate approximately twenty seven feet south of
the crossing that are automatically activated by approaching
similar array of active warning devices was also in place on
the northwest side of the crossing for southbound motorists.
presence of the crossing was visible to a northbound driver.
September 19, 2011, at approximately 1:30 p.m., defendant
Rigoberto Jimenez drove a 1991 Freightliner tractor truck,
owned by him, in a northbound direction on Geer Road.
Defendant Jimenez's truck pulled two trailers containing
tomatoes, a semi and a pull trailer, both owned by
Young's Commercial Transfer.
tractor passed the tracks at the Geer Road crossing and came
to a stop before reaching the intersection, such that the
rear trailer remained across the tracks.
Defendant Jimenez was familiar with the crossing, and by his
own estimation has driven through the crossing more than one
the same time the train approached the Geer Road rail
crossing, an Amtrak train, No. 713, was traveling northbound
from Bakersfield to Oakland.
train consisted of lead locomotive No. AM 77, with four
coaches, and was approximately 399 feet long.
train was operated by Amtrak engineer Barbara Ann Neu, who
was acting in the course and scope of her employment.
Plaintiff Celia Ramirez was a passenger on the train.
train collided with the Jimenez trailer.
Portions of the subject accident were captured by the front
end camera on the locomotive, and by a camera on neighboring
warning devices were working prior to, and at the time of the
accident, and they were activated twenty eight seconds prior
to the train's arrival.
Before the collision, defendant Neu sounded the horn, and
continued to sound it and bell warnings for eight seconds,
from 13:37:52-13:38:00 event recorder time.
After sounding the horn and bell, defendant Neu applied the
emergency brakes IV. DISPUTED FACTUAL ISSUES 1. The
various speeds of the train as it approached the crossing.
Whether plaintiff Celia Ramirez was injured by the collision.
Whether plaintiff Celia Ramirez's medical or other
expenses are attributable to the subject incident.
Whether plaintiff Celia Ramirez's claimed expenses are
reasonable and compensable.
Whether plaintiff Celia Ramirez suffered wage loss and loss
of earning capacity as a result of the accident, and if so,
what the reasonable amount of damages are for any losses.
DISPUTED EVIDENTIARY ISSUES/MOTIONS IN LIMINE
court does not encourage the filing of motions in limine
unless they are addressed to issues that can realistically be
resolved by the court prior to trial and without reference to
the other evidence which will be introduced by the parties at
motions in limine are due no later than twenty one
(21) days before trial. Opposition to
defendant's motions shall be filed no later than
fourteen (14) days before trial and any
replies shall be filed no later than ten (10) days
before trial. Upon receipt of any opposition briefs,
the court will notify the parties if it will hear argument on
any motions in limine prior to the first day of trial.
SPECIAL FACTUAL INFORMATION: TORT ACTION FOR PERSONAL
to Local Rule 281(b)(6)(iv), the following special factual
information pertains to this action:
action concerns the collision of an Amtrak train with the
rear trailer of a tractor trailer combination that occurred
on September 19, 2011, at a railroad crossing located near
the intersection of Geer Road and Santa Fe Street in an
unincorporated area of Modesto, California.
Plaintiff Ramirez contends that defendants are liable because
they collectively caused the Amtrak train collision. The
parties have stipulated to negligence. (Doc. No. 151.)
Defendants contend that plaintiff's injuries were not
caused by the collision, and that plaintiff failed to
mitigate her damages.
Ordinances, or Regulations Violated
statutes, ordinances, or regulations are relevant to this
of Strict Liability or Res Ipsa Loquitur
strict liability nor res ipsa loquitur are
applicable in this case.
Information as to Plaintiff
Plaintiff was thirty three years old at the time of the
incident. She is currently thirty eight years old.
Plaintiff contends that she suffered injury to her back,
shoulders, neck, hips, knee and legs and feet as a result of
the collision. A decompression and fusion at ¶ 5-S1 was
performed that did not solve the problem. Defendants contend
that the decompression and fusion surgery was not necessary
and both Dr. Harvey Edmonds (plaintiff's retained
neurologist) and Dr. Kurt Miller (defendants' retained
neurologist) agree that the procedure was unnecessary.
Plaintiff maintains that, in addition to the above, she
suffers generalized anxiety disorder with panic attacks,
depressive disorder, post-traumatic stress disorder, restless
leg syndrome, weight gain due to restricted physical activity
due to the effects of the collision, chronic low back pain,
right gluteal muscle tear, leg weakness secondary to disuse
atrophy, kinesophobia, carpal tunnel syndrome, migraine, and
axonal sensory neuropathy.
Defendants assert that plaintiff suffered chronic lumbar back
pain prior to the accident, dating back to 2005. Plaintiff
acknowledges that she had back pain from time to time in the
past, but disputes that she suffered from “chronic
lumbar back pain.”
Plaintiff was taken to the Memorial Medical Center in Modesto
via ambulance after the incident and released that day. She
was treated at several hospitals later.
Plaintiff asserts medical specials as of May 16, 2016
amounting to approximately $344, 212.49. Defendants'
expert asserts the figure should be below $100, 000.
Plaintiff's retained medical expert, Dr. Harvey Edmunds,
has opined that plaintiff will need comprehensive
multispecialty rehabilitation, at an estimated cost of $50,
000.00. Plaintiff maintains that future medical expenses will
Plaintiff was not employed at the time of the incident, and
claims continued disability.
Plaintiff had not been employed for several years prior to
the accident, and has not sought employment since the
Plaintiff contends that had the accident not occurred, she
would have attended college at UC Berkeley and obtained a
bachelor's degree. Her expert estimates past and future
loss of salary and benefits at $1, 163, 676, unless she is
able to resume her education and accomplish her employment
objectives. Plaintiff maintains that loss of earnings/earning
capacity claims range from $238, 881 to $1, 163, 676
depending upon the period of disability 9. Plaintiff is
claiming damages for pain and suffering in the amount of $1,
000, 000.00 to $3, 000, 000.00 or more.
Plaintiff does not claim property damage.
Plaintiff seeks damages for wage loss.
Plaintiff seeks damages for past and future hospital and
Plaintiff seeks damages for severe and pain and suffering.
Plaintiff seeks damages for loss of earning capacity and
POINTS OF LAW
court summarizes the parties' positions on several points
of law below. Trial briefs addressing these points more
completely shall be filed with this court no later than
seven (7) days before trial in accordance
with Local Rule 285.
Negligence Law: General Duty of Reasonable Care
is responsible…for an injury occasioned to another by
his or her want of ordinary care or skill in the management
of his or her property or person, except so far as the latter
has, willfully or by want of ordinary care, brought the
injury upon himself or herself.” (Cal. Civ. Code §
1714.) The elements of a negligence cause of action are:
“(a) a legal duty to use due care; (b) a
breach of such legal duty; [and] (c) the breach as
the proximate or legal cause of the resulting
injury.” Ladd v. County of San Mateo, 12
Cal.4th 913, 917 (1996).
most cases, courts have fixed no standard of care for tort
liability more precise than that of a reasonably prudent
person under like circumstances.” Ramirez v.
Plough, Inc., 6 Cal.4th 539, 546 (1993). “But the
proper conduct of a reasonable person under particular
situations may become settled by judicial decision or be
prescribed by statute or ordinance.” Id. at
547. CACI 401 instructs the jury as to the general standard
Negligence Law: Operation of Motor Vehicles
basic standard of care for the operator of a motor vehicle is
summarized by CACI 700:
A person must use reasonable care in driving a vehicle.
Drivers must keep a lookout for pedestrians, obstacles, and
other vehicles. They must also control the speed and movement
of their vehicles. The failure to use reasonable care in
driving a vehicle is negligence.
degree of care required in watching the movements of a
particular machine depends upon the facts and circumstances
existing at the time and place of the accident' and a
driver is required to use that degree of care, only, which
would be required of a reasonably prudent driver under
similar circumstances.” Whitford v. Pacific Gas
& Elec. Co., 136 Cal.App. 2d 697, 702 (1955).
“The operator of a vehicle must keep a proper lookout
for other vehicles or persons on the highway and must keep
his car under such control as will enable him to avoid a
collision; failure to keep such a lookout constitutes
negligence.” Downing v. Barrett Mobile Home
Transport, Inc., 38 Cal.App.3d 519, 524 (1974).
Negligence Law: Operation of Railroads
speaking the duty to exercise reasonable or ordinary care is
imposed upon the operator of a railroad at public highway
crossings with respect to persons traveling upon the highway
and over the crossing, both as to the manner of operating the
train and the maintenance of the crossing. The standard of
care is that of the man of ordinary prudence under the
circumstances.” Peri v. Los Angeles Junction
Ry., 22 Cal. 2d 111, 120 (1943). “Ordinarily the
issue of the negligence in crossing cases, whether the
railroad was negligent . . . in the operation of the train,
is one of fact as in other negligence cases.” Romo
v. Southern Pac. Transportation Co., 71 Cal.App.3d 909,
916 (1977). CACI 800 states the basic standard of care, as
may applicable in accordance with federal law.
Negligence Law: Common Carriers
carrier of persons for reward must use the utmost care and
diligence for their safe carriage, must provide everything
necessary for that purpose, and must exercise to that end a
reasonable degree of skill.” Cal. Civ. Code §
2100. “The elevated standard of care for common
carriers is ‘based on a recognition that the privilege
of serving the public as a common carrier necessarily entails
great responsibility, requiring common carriers to exercise a
high duty of care towards their customers.'”
Squaw Valley Ski Corporation v. Superior Court, 2
Cal.App.4th 1499, 1507 (1992), internal citations omitted.
See also CACI 902.
California law, “A defendant's negligent conduct
may combine with another factor to cause harm; if a
defendant's negligence was a substantial factor in
causing the plaintiff's harm, then the defendant is
responsible for the harm; a defendant cannot avoid
responsibility just because some other person, condition, or
event was also a substantial factor in causing the
plaintiff's harm; but conduct is not a substantial factor
in causing harm if the same harm would have occurred without
that conduct.” Yanez v. Plummer, 221
Cal.App.4th 180, 187 (2013); see also CACI 431.
claims against defendant BNSF were dismissed by stipulation.
(Doc. No. 83.)
Plaintiff's negligence claim against defendant Amtrak
based on failure to train employees was dismissed by this
court's order partially granting defendants' motion
for summary judgment. (Doc. No. 94.)
Plaintiff's negligence claim against defendant Amtrak
based on failure to warn passengers in emergency situations
was dismissed by this court's order partially granting
defendants' motion for summary judgment. (Doc. No. 94.)
claims by defendants Rigoberto Jimenez, Jimenez Trucking, and
Young's against defendants Amtrak and Barbara Neu were
dismissed by stipulation. (Doc. No. 151.)
defendants have stipulated to negligence, and contest only
the issues of causation and damages. (Doc. No. 151.)
shall be those listed in Attachment A. Each party may call
any witnesses designated by the other.
parties dispute whether certain witnesses listed in the
pre-trial order were timely disclosed and are appropriately
designated as trial witnesses. (Doc. Nos. 186 at 3-9; 188 at
3-4.) Prior to the initial trial in this action, the court
made note in its final pretrial order of the large number of
witnesses listed by the parties in their joint pretrial
statement, and admonished the parties that time limits on
their presentations might be imposed to ensure compliance
with the ten day trial length estimate. The parties
ultimately called nine witnesses to testify during the
initial trial. Based on this experience, the court
anticipates that no witnesses beyond those who testified
during the first trial will testify at the second trial. If
the parties intend to call any additional witnesses, they
shall notify the other parties and the court before the
commencement of trial, and should be prepared to make a
showing of good cause as to why the testimony of these
witnesses is necessary. Plaintiff will be required to file
and serve a list of any such additional witnesses no later
than fourteen (14) days before trial, and defendants will be
required to file and serve a list of those additional
witnesses who will be called to testify in defendant's
case no later than seven (7) days before trial.
court will not permit any other witness to testify unless:
(1) The party offering the witness demonstrates that the
witness is for the purpose of rebutting evidence that could
not be reasonably anticipated at the pretrial conference, or
(2) The witness was discovered after the pretrial conference
and the proffering party makes the showing required in
paragraph B, below.
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:
(1) The witness could not reasonably have been discovered
prior to the discovery cutoff;
(2) The court and opposing parties were promptly notified
upon discovery of the witness;
(3) If time permitted, the party proffered the witness for
(4) If time did not permit, a reasonable summary of the
witness's testimony was provided to opposing parties.
EXHIBITS, SCHEDULES, AND SUMMARIES
exhibits are listed in Attachment B. At
trial, plaintiff's exhibits shall be listed
alphabetically. Defendant Amtrak's exhibits are listed in
Attachment C. and defendants Jimenez and
Young's exhibits are listed in Attachment
D. At trial, defendants' exhibits shall be
listed numerically. Defendants Jimenez, Jimenez Trucking, and
Young's shall list exhibits using the numbers 100-299,
and defendant Amtrak shall use the numbers 300 and on. All
exhibits must be pre-marked.
parties must prepare exhibit binders for use by the court at
trial, with a side tab identifying each exhibit in accordance
with the specifications above, and with numbered pages for
all exhibits. Each binder shall have an identification label
on the front and spine.
parties are to exchange exhibits no later than twenty
eight (28) days before trial. Any objections to
exhibits are due no later than fourteen (14) days
before trial. The final exhibits are to be delivered
to the court by June 8, 2017. In making any
objection, the party is to set forth the grounds for the
objection. As to each exhibit which is not objected to, it
shall be marked and received into evidence and will require
no further foundation.
court will not admit exhibits other than those identified on
the exhibit lists referenced above unless:
(1) The party proffering the exhibit demonstrates that the
exhibit is for the purpose of rebutting evidence that could
not have been reasonably anticipated, or
(2) The exhibit was discovered after the issuance of this
order and the proffering party makes the showing required in
paragraph B, below.
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:
(1) The exhibits could not reasonably have been discovered
(2) The court and the opposing parties were promptly informed
of their existence;
(3) The proffering party forwarded a copy of the exhibits (if
physically possible) to the opposing party. If the exhibits
may not be copied the proffering party must show that it has
made the exhibits reasonably available for inspection by the
must lodge the sealed original copy of any deposition
transcript to be used at trial with the Clerk of the Court no
later than fourteen (14) days before trial.
parties may use the following discovery documents at trial.
Reporter's Transcripts and exhibits of depositions of:
1. Scott Berner
2. Cheryl Chandler
3. Marcus Chavez
4. Michael Crabtree
5. Charles Culver
6. Harvey Edmonds, M.D.
7. Maria Madalena Enes
8. James Flynn
9. John Heberger
10. Brian Heikkila
11. Rigoberto ...