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Ocampo v. United States

United States District Court, S.D. California

July 12, 2019

KAREN OCAMPO, as personal representative of SALOMON RODRIGUEZ, Plaintiff,




         On May 20, 2019, the parties appeared before this Court for a hearing on their fully briefed motions in-limine. After hearing oral argument, the Court ruled on certain motions (See Doc. Nos. 158, 159, 164, 165, 167, 168, 169) and took the instant motions under submission. Pending before the Court are I. NASSCO's motion to exclude evidence of the contract (Doc. No. 160), II. NASSCO's motion to exclude testimony of the United States' expert Dr. Patrick Hudson (Doc. No. 161), III. NASSCO's motion to preclude evidence or argument regarding legal duty (Doc. No. 162), IV. NASSCO's motion to exclude evidence of any alleged negligent act not listed in the Pretrial Order (Doc. No. 172), and V. NASSCO's motion to exclude opinions and testimony of Plaintiff's expert Carl Beels (Doc. No. 166).[1]


         I. NASSCO's Motion to Exclude Evidence of the Contract

         NASSCO seeks an order excluding all evidence of the contract between NASSCO and the United States, its terms or NASSCO's alleged violation thereof as evidence of negligence. NASSCO argues the United States' failure to exhaust administrative remedies prior to bringing its cross-claim prohibits the Court from making contract-related determinations and prevents Plaintiff from establishing NASSCO's alleged negligence based on purported breaches of the contract. Relying on Woodbury v. United States, 313 F.2d 291 (9th Cir. 1963), NASSCO contends the evidence relating to the contract or its terms should be excluded as irrelevant and prejudicial because the United States' and Plaintiff's claims of negligence rely on NASSCO's alleged breach of contract and under the Contract Disputes Act (“CDA”), the Court lacks subject matter jurisdiction to make any determinations related to the contract. NASSCO further argues a contractual duty cannot serve as the basis for a negligence claim. Additionally, NASSCO argues the evidence is prejudicial, will confuse the issues and would result in undue delay.

         Plaintiff argues, by submitting the contract as an exhibit to its summary judgment motion NASSCO has already put it into evidence and admitted to its authenticity, relevance and admissibility. Plaintiff contends NASSCO is also precluded from taking inconsistent positions in the same action under the doctrines of judicial estoppel and admissions in pleadings. Additionally, Plaintiff argues statements of facts made by its counsel in the summary judgment brief may be considered admissions of the party in the discretion of the Court.

         Plaintiff further argues NASSCO erroneously contends the Third Amended Complaint (“TAC”) is a contracts action disguised as a negligence action. Plaintiff maintains a duty may arise out of a contract, and negligent performance may be a tort as well as a breach of contract. Furthermore, Plaintiff maintains the CDA process is intended to provide a mechanism to resolve post-award dispute claims between the federal government and a contractor and her claim is not within the scope of the administrative scheme contemplated by the CDA. Plaintiff contends NASSCO's argument that the government claim is not ripe until there is an award, yet Plaintiff cannot refer to the contract to get an award creates a Catch-22 situation and is prejudicial in seeking to exclude a crucial piece of evidence. She maintains NASSCO presents no authority that the alleged lack of jurisdiction to adjudicate the contractual dispute between the Navy and NASSCO in any manner precludes the admissibility of the contract by Plaintiff to prove her tort claim. Plaintiff further maintains she alleges the contract provides the basis of at least some of the legal duties for which NASSCO was responsible and which Plaintiff alleged it breached. Accordingly, Plaintiff argues, the citation to Woodbury, which deals with a tort entirely based on the breach of a promise made in a contract, is inapplicable. According to NASSCO's own cited authority, Plaintiff argues, the claim at issue does not fall within the scope of CDA. Plaintiff also argues this motion is essentially an untimely summary judgment motion in disguise.

         Citing Todd Shipyards Corp. v. Turbine Service, Inc., 674 F.2d 401 (5th Cir. 1982), the United States argues it may rely on the contract to support its crossclaim for contribution based upon NASSCO's negligence and maintains it is well-recognized under general maritime law that a shipowner may sue in either tort or contract for negligent performance of a maritime contract. Additionally, the United States argues it has the right to rely on the contract to establish that it delegated any arguable duty of care it may have owed the decedent to NASSCO by way of its contract with NASSCO in defending against Plaintiff's claims.

         The United States also argues evidence of the contract is not excludable under Rule 403 because there is nothing unfair in placing into evidence at trial a written contract where evidence of the contract was already placed in the court's record without objection. The United States maintains NASSCO's argument that admitting the contract at trial will confuse the Court rings hollow in light of the fact that the Court analyzed the contract in denying NASSCO's motion for summary judgment. Additionally, the United States argues the contract is one of several viable defenses it has against Plaintiff's claims, and NASSCO has no basis to preclude the United States from entering the contract into evidence at the time of trial.

         In reply, NASSCO continues to argue that Plaintiff's contention that NASSCO is estopped from arguing the contract should be excluded has no merit because the limits on this Court to consider the contract are jurisdictional, and this Court does not have jurisdiction to decide a negligence claim based on breach of a contract governed by the CDA. Furthermore, NASSCO argues Plaintiff and the United States attempts to support their respective claims against NASSCO cannot be decided in this forum because they are really contract actions disguised as negligence claims. NASSCO maintains Plaintiff cites only to California law and this Court has already held federal law applies in this maritime action, and the United States relies on a series of maritime, but not government contract, cases.

         Relying on Woodbury, NASSCO contends the negligence-based claims presented by Plaintiff and the United States are disguised breach of contract causes of action and, therefore, the Court is without jurisdiction to hear evidence of the contract in support of the claims.[2] Woodbury involved a tort claim based entirely upon a breach of a contract. 313 F.2d 291. While the negligence action here looks to the contract between NASSCO and the United States to demonstrate NASSCO's duty owed to the decedent and to the United States' purported delegation of its duties it owed the decedent, the contract is not an essential basis of the negligence claims. The basis of Plaintiff's claims is NASSCO's failure to ensure and maintain a safe work environment. The source of Plaintiff's claims against NASSCO are not the contract to which Plaintiff was not a party. Similarly, the source of the United States' negligence and contribution claim is not the contract but NASSCO's alleged failure to identify the fall hazard resulting in decedent's death. Furthermore, NASSCO cites no authority in support of its argument that a finding that this Court lacks jurisdiction to hear the United States' breach of contract claim prevents the Court from hearing evidence regarding the contract in support of the negligence-based claims.

         Next, NASSCO argues the contract cannot serve as a basis for negligence and challenges Plaintiff's reliance of California law in support of her argument that a duty may arise out of a contract and the United States' reliance on non-government contract cases. NASSCO points to this Court's determination that it would not consider California law which NASSCO asserted “complement[ed]” admiralty law on the issue of the peculiar risk doctrine in the Court's order on NASSCO's motion for summary judgment. See Doc. No. 146. The Court made this determination because general maritime law recognizes the peculiar risk doctrine and sets forth the parameters of the doctrine and, therefore, there was no need to consider state law on the issue. This Court recognizes that in exercising admiralty jurisdiction, courts “look to common law in considering torts.” Royal Ins. Co of America v. Southwest Marine, 194 F.3 1009, 1015 (9th Cir. 1999) (quoting Su v. M/V S. Aster, 978 F.2d 462, 472 (9th Cir. 1992). Under California law,

liability for negligent conduct may only be imposed where there is a duty of care owed by the defendant to the plaintiff or to a class of which the plaintiff is a member. A duty of care may arise through statute or by contract. Alternatively, a duty may be premised upon the general character of the activity in which the defendant engaged, the relationship between the parties or even the interdependent nature of human society.

J'Aire Corp v. Gregory, 24 Cal.3d 799 (1979) (internal citations omitted).

         NASSCO also challenges the United States' reliance on Cheek v. Williams -McWilliams, Co. Inc., 697 F.2d 649 (5th Cir. 1983), which recognized negligent performance of a contract could give rise to a claim sounding in tort. NASSCO contends the case is distinguishable because it did not involve a government contract which would be limited by the CDA. The Court declines NASSCO's invitation to find that the Court's lack of jurisdiction to entertain a CDA-based breach of contract claim cloaks NASSCO with protection or immunity that prevents any party from relying on any alleged duty of care arising from a contract. The Court's finding that it does not have jurisdiction to hear the breach of contract action does not limit its ability to hear evidence of the contract to support the negligence claims. A duty of care may arise by contract.

         The contract and its provisions, which were discussed thoroughly in the parties' briefs and oral argument on NASSCO's motion for summary judgment, are relevant and admissible as to the negligence-based claims. Furthermore, the Court finds there will be no prejudice or confusion of the issues in this trial in which the Court is the trier of fact. Accordingly, NASSCO's motion to exclude evidence of the contract on negligence-based claims is DENIED.

         II. To Exclude the Opinions and Testimony of Expert ...

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