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Sepe v. Gordon Trucking, Inc.

United States District Court, E.D. California

June 12, 2017

ROBERT SEPE, JR., Plaintiff,
v.
GORDON TRUCKING, INC., a Washington corporation, ELWOOD HILL, and DOES 1 through 30 Defendant.

          ORDER DENYING PLAINTIFF'S MOTION FOR NEW TRIAL

          Troy L. Nunley United States District Judge.

         This matter is before the Court on Plaintiff Robert Sepe Jr.'s (“Plaintiff”) Motion for New Trial. (ECF No. 149.) The parties stipulated to allow Plaintiff to file a “supplemental/amended motion” due to a delay with receiving court transcripts. (ECF No. 153.) Plaintiff filed an Amended Motion for New Trial accompanied by a Supplemental Memorandum of Points and Authorities. (ECF Nos. 157 & 158.) Defendants Gordon Trucking, Inc. and Elwood Hill (collectively “Defendants”) opposed Plaintiff's motion. (ECF No. 170.) Plaintiff filed a reply. (ECF No. 171.) Having carefully considered the arguments raised by both parties and for the reasons set forth below, the Court hereby DENIES Plaintiff's Motion for a New Trial (ECF No. 149).

         I. Factual and Procedural Background

         This case involves an auto versus truck accident in the Sacramento area.[1] Defendant Gordon Trucking, Inc., employed Defendant Hill as an operator of a tractor and trailer rig. On September 13, 2010, the truck driven by Defendant Hill and a Honda civic driven by Plaintiff entered the transition ramp from southbound Interstate Business 80 heading toward westbound Interstate 80/Highway 50. The truck was in the right lane and Plaintiff's vehicle was in the left lane of the transition ramp. The truck collided with Plaintiff's car when the truck changed from the right lane into the left lane of the transition ramp. Plaintiff's car hit the cement barrier to the left of the ramp after being struck by the truck. Defendant Hill did not observe the accident and continued to his destination in Tracy, California. Following the accident, Plaintiff received medical care, including surgery to his lumbar and cervical spine. He did not have health insurance. Plaintiff has not worked since the accident.

         Plaintiff brought claims against Defendants for negligent operation of a truck and leaving the scene of an accident. (ECF No. 57 at 8.) Plaintiff sought to recover medical expenses, past and future lost earnings, and non-economic damages from pain and suffering. (ECF No. 57 at 8.) Before trial, Defendants filed Motion in limine # 9 (ECF No. 74), seeking to exclude Drs. Diaz, Orisek, and Lemons, Physical Therapists Beggs, Cassady and Thomas, and P.A. Lanum from providing expert opinion testimony at trial. (ECF No. 74 at 5.) Defendants argued Plaintiff had not appropriately disclosed the witnesses as experts and thus they were classified as percipient witnesses who could not provide expert opinion testimony. In his opposition, Plaintiff argued the Doctors were not required to file expert reports because they were testifying as treating physicians not retained experts. (ECF No. 97 at 12-13.) Plaintiff further asserted the Doctors were testifying as percipient witnesses and would only provide testimony related to their treatment of Plaintiff. (ECF No. 97 at 13.)

         The Court held a hearing prior to the start of trial to resolve all motions in limine. (See Tr. of Proc. on Aug. 24, 2015, ECF No. 148.) At the hearing, the Court allowed the parties an opportunity to be heard on motion in limine # 9. (See ECF No. 148.) After argument the Court made an initial ruling permitting Doctors Lemons and Orisek to testify as treating physicians, but they were prohibited from testifying as to “matters outside the scope of their treatment.” (ECF No. 148 at 19:1-5.) After counsel requested clarification, the Court rescinded its previous order and took the matter under submission. (ECF No. 148 at 22:2-4.) The parties were permitted to submit additional briefing on the issue. (See ECF Nos. 108 & 112.) The Court revisited the issue on August 28, 2015, prior to Drs. Lemons and Orisek's testimony. (See Tr. of Proc. on Aug. 28, 2015, ECF No. 156.) Relying on United States v. Urena and Goodman v. Staples, the Court permitted Drs. Lemons and Orisek to testify about treatment and opinions they formed during the course of treatment. (ECF No. 156 at 8:6-8.)

         Throughout the direct examination of Drs. Lemons and Orisek, the Court sustained many objections to questions which called for testimony outside the scope of treatment and more akin to expert testimony. (See ECF No. 156.) At the end of Plaintiff's case-in-chief, Defendants moved for Judgment as a Matter of Law. (See Tr. of Proc. Sept. 2, 2015, ECF No. 150.) The Court denied the motion on the basis that negligent causation could be proven based on nonexpert testimony and that Plaintiff's counsel had misinterpreted the Court's ruling on causation. (ECF No. 150 at 3:3-13.) The Court permitted Plaintiff to recall Drs. Lemons and Orisek for the limited purpose of “render[ing] an opinion about causation based upon their percipient knowledge during treatment.” (ECF No. 150 at 4:15-16.) Dr. Orisek retook the stand and Plaintiff's counsel elicited causation testimony based on Dr. Orisek's treatment of Plaintiff. (See Tr. of Proc. Sept. 4, 2015, ECF No. 166.) Dr. Lemons was not recalled due to his unavailability.

         At the end of the trial, the question of causation was submitted to the jury and the jury returned a unanimous verdict in favor of Defendants. Plaintiff filed the instant Motion for New Trial and subsequent Supplemental Memorandum in support of his motion. (ECF Nos. 149 & 158.)

         II. Standard of Law

         Federal Rule of Civil Procedure 59 (“Rule 59”) provides that a court may “grant a new trial on all or some of the issues and to any party after a jury trial, for any reason for which a new trial has heretofore been granted in an action at law in federal court.” Fed. R. Civ. Pro. 59(a)(1)(A). “Rule 59 does not specify the grounds on which a motion for a new trial may be granted.” Zhang v. Am. Gem Seafoods, Inc., 339 F.3d 1020, 1035 (9th Cir. 2003). “Rather, the court is bound by those grounds that have been historically recognized.” Molski v. M.J. Cable, Inc., 481 F.3d 724, 729 (9th Cir. 2007) (internal citations omitted). Recognized grounds include, but are not limited to, allegations “that the verdict is against the weight of the evidence, that the damages are excessive, or that, for other reasons, the trial was not fair to the party moving.” Montgomery Ward & Co. v. Duncan, 311 U.S. 243, 251 (1940).

         The Ninth Circuit has held that “[t]he trial court may grant a new trial only if the verdict is contrary to the clear weight of the evidence, is based upon false or perjurious evidence, or to prevent a miscarriage of justice.” Molski, 481 F.3d at 729; (quoting Passantino v. Johnson & Johnson Consumer Prods., 212 F.3d 493, 510 n.15 (9th Cir. 2000)). “In considering a motion for a new trial, the court may weigh the evidence and assess the credibility of witnesses, and the court need not view the evidence in the light most favorable to the prevailing party.” Air-Sea Forwarders, Inc. v. Air Asia Co., Ltd., 880 F.2d 176, 190 (9th Cir. 1989). “District courts are granted broad discretion in admitting evidence, and their rulings are reviewed only for an abuse of discretion.” Ruvalcaba v. City of Los Angeles, 64 F.3d 1323, 1328 (9th Cir. 1995) (citing United States v. Dunn, 946 F.2d 615, 617 (9th Cir. 1991). “A new trial is only warranted on the basis of an incorrect evidentiary ruling if the ruling substantially prejudiced a party. United States v. 99.66 Acres of Land, 970 F.2d 651, 658 (9th Cir. 1992).

         III. Analysis

         Plaintiff raises three potential grounds for a new trial. (ECF Nos. 146 & 158.) First, Plaintiff asserts the Court erred by prohibiting testimony about causation from Drs. Lemons and Orisek (hereinafter referred to as “the Doctors”). (ECF No. 158 at 19-20.) Plaintiff asserts the Court's ruling prejudiced him because the jury was not given an opportunity to hear causation testimony during his case-in-chief. (ECF No. 158 at 22-23.) Second, Plaintiff argues the Court erred by referring to the Doctors as “lay witnesses” and that this prejudiced Plaintiff because the jury was instructed they may weigh opinion testimony of non-experts differently. (ECF No. 158 at 25-27.) Lastly, Plaintiff argues the Court erred by permitting the surveillance video to be used as impeachment evidence. (ECF No. 149-1 at 17-18.) Plaintiff asserts the video was prejudicial because it offered the jury a “glimpse into the scope of Mr. Sepe's daily activity. Yet the video did not indicate whether Mr. Sepe experienced pain while performing the activities shown.” (ECF No. 149-1 at 19.) The Court addresses each argument in turn.

         A. Causation Testimony by ...


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