United States District Court, S.D. California
KAREN OCAMPO, as personal representative of SALOMON RODRIGUEZ, Plaintiff,
UNITED STATES OF AMERICA, et. al. Defendants. AND RELATED CROSS CLAIM.
ORDER ON MOTIONS IN LIMINE
A. HOUSTON UNITED STATES DISTRICT JUDGE
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.
NASSCO's Motion to Exclude Evidence of the
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.
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
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.
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.
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.
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.
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. 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
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).
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.
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.
To Exclude the Opinions and Testimony of Expert ...