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National Railroad Passenger Corp. v. Young's Commercial Transfer, Inc.

United States District Court, E.D. California

April 25, 2017

NATIONAL RAILROAD PASSENGER CORPORATION, Plaintiff,
v.
YOUNG'S COMMERCIAL TRANSFER, INC., Defendants.

          AMENDED FINAL PRETRIAL ORDER

         On 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.

         The 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.[1] (Doc. No. 94.)

         On 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.)

         On 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. 185.)

         In 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 and damages.

         I. JURISDICTION/VENUE

         Jurisdiction 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 contested.

         II. JURY

         Both parties have demanded a jury trial.

         III. UNDISPUTED FACTS

         1. Geer 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.

         2. The lanes of travel on Geer Road were separated by solid double yellow lines.

         3. 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.

         4. The rail crossing and the grade crossing warning system are on property owned and maintained by BNSF Railway.

         5. On 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 trains.

         6. A similar array of active warning devices was also in place on the northwest side of the crossing for southbound motorists.

         7. The presence of the crossing was visible to a northbound driver.

         8. On 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.

         9. Defendant Jimenez's truck pulled two trailers containing tomatoes, a semi and a pull trailer, both owned by Young's Commercial Transfer.

         10. The 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.

         11. Defendant Jimenez was familiar with the crossing, and by his own estimation has driven through the crossing more than one hundred times.

         12. At the same time the train approached the Geer Road rail crossing, an Amtrak train, No. 713, was traveling northbound from Bakersfield to Oakland.

         13. The train consisted of lead locomotive No. AM 77, with four coaches, and was approximately 399 feet long.

         14. The train was operated by Amtrak engineer Barbara Ann Neu, who was acting in the course and scope of her employment.

         15. Plaintiff Celia Ramirez was a passenger on the train.

         16. The train collided with the Jimenez trailer.

         17. Portions of the subject accident were captured by the front end camera on the locomotive, and by a camera on neighboring property.

         18. The 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.

         19. 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.

         20. 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.

         2. Whether plaintiff Celia Ramirez was injured by the collision.

         3. Whether plaintiff Celia Ramirez's medical or other expenses are attributable to the subject incident.

         4. Whether plaintiff Celia Ramirez's claimed expenses are reasonable and compensable.

         5. 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.

         V. DISPUTED EVIDENTIARY ISSUES/MOTIONS IN LIMINE

         The 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 trial.

         Any 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.

         VI. SPECIAL FACTUAL INFORMATION: TORT ACTION FOR PERSONAL INJURY

         Pursuant to Local Rule 281(b)(6)(iv), the following special factual information pertains to this action:

         Factual Information

         1. This 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.

         Basis for Liability

         1. Plaintiff Ramirez contends that defendants are liable because they collectively caused the Amtrak train collision. The parties have stipulated to negligence. (Doc. No. 151.)

         Basis for Defenses

         1. Defendants contend that plaintiff's injuries were not caused by the collision, and that plaintiff failed to mitigate her damages.

         Statutes, Ordinances, or Regulations Violated

         No statutes, ordinances, or regulations are relevant to this case.

         Applicability of Strict Liability or Res Ipsa Loquitur

         Neither strict liability nor res ipsa loquitur are applicable in this case.

         Factual Information as to Plaintiff

         1. Plaintiff was thirty three years old at the time of the incident. She is currently thirty eight years old.

         2. 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.

         3. 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.”

         4. 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.

         5. 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 exceed $326.848.

         6. Plaintiff was not employed at the time of the incident, and claims continued disability.

         7. Plaintiff had not been employed for several years prior to the accident, and has not sought employment since the accident.

         8. 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.

         10. Plaintiff does not claim property damage.

         VII. RELIEF SOUGHT

         1. Plaintiff seeks damages for wage loss.

         2. Plaintiff seeks damages for past and future hospital and medical expenses.

         3. Plaintiff seeks damages for severe and pain and suffering.

         4. Plaintiff seeks damages for loss of earning capacity and emotional distress.

         VIII. POINTS OF LAW

         The court summarizes the parties' positions on several points of law below.[2] 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.

         California Negligence Law: General Duty of Reasonable Care

         “Everyone 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).

         “In 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 of care.

         California Negligence Law: Operation of Motor Vehicles

         The 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.

         “‘The 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).

         California Negligence Law: Operation of Railroads

         “Generally 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.

         California Negligence Law: Common Carriers

         “A 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.

         Causation

         Under 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.

         IX. ABANDONED ISSUES

         1. All claims against defendant BNSF were dismissed by stipulation. (Doc. No. 83.)

         2. 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.)

         3. 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.)

         4. All claims by defendants Rigoberto Jimenez, Jimenez Trucking, and Young's against defendants Amtrak and Barbara Neu were dismissed by stipulation. (Doc. No. 151.)

         5. All defendants have stipulated to negligence, and contest only the issues of causation and damages. (Doc. No. 151.)

         X. WITNESSES

         Witnesses shall be those listed in Attachment A. Each party may call any witnesses designated by the other.

         The 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.

         A. The 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.

         B. 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:

(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 deposition; and
(4) If time did not permit, a reasonable summary of the witness's testimony was provided to opposing parties.

         XI. EXHIBITS, SCHEDULES, AND SUMMARIES

         Plaintiff's 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.

         The 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.

         The 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.

         A. The 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.

         B. 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:

(1) The exhibits could not reasonably have been discovered earlier;
(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 opposing parties

         XII. DISCOVERY DOCUMENTS

         Counsel 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.

         The 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 ...

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