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Ramone v. United States

United States District Court, E.D. California

July 16, 2019

RAYMOND VINCENT RAMONE, et al., Plaintiffs,



         Raymond Vincent Ramone and Rita Yvonne Ramone assert the Government is liable for personal injuries sustained in a vehicular accident with mail carrier employed by the United States Postal Service. Plaintiffs seek monetary damages for their injuries pursuant to the Federal Court Claims Act, 28 U.S.C. § 2671. (See Doc. 1)


         This Court has original jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1345(b), and supplemental jurisdiction for Plaintiff's claims arising under state law pursuant to 28 U.S.C. § 1367. In addition, the venue is proper in the United States District Court for the Eastern District of California. See 28 U.S.C. § 1391.

         B. BENCH TRIAL

         Pursuant to the FTCA, Plaintiffs are not entitled to a trial by jury. 28 U.S.C. § 2402.


         The parties agree the following facts are undisputed:

On April 24, 2016, Raymond and Rita Ramone were traveling eastbound on State Route 46 in an unincorporated area of San Luis Obispo County, California. The speed limit was 55 miles per hour. The weather was clear and dry and all relevant events occurred during daylight hours. At approximately 3:45 p.m. that day, they were involved in a motor vehicle accident with a United States Postal Service (“USPS”) vehicle owned by the United States. The USPS vehicle was operated by an employee of the USPS, Andres Recinos, in the course and scope of his employment. Recinos is no longer employed by USPS and, at relevant times, his whereabouts have been unknown to either party.
The Ramones did not suffer any visible injuries and, and with the exception of a minor arm abrasion, were both able to exit their vehicle and walk away from the accident. At that time, they both indicated they were not injured, and both declined immediate medical attention. Rita Ramone had a pre-existing back and neck condition and received an epidural injection for pain approximately one week prior to the accident. The Plaintiffs traveled away from the scene in the tow truck called to transport their vehicle. Recinos was uninjured.
California Highway Patrol (“CHP”) Officer D.J. Ellis investigated the accident and took statements, including a statement from Raymond Ramone that he was traveling at 65 miles per hour at the time of the accident. Officer Ellis also took a statement from Mr. Recinos that he was prepared to make a U-turn. Officer Ellis wrote a Traffic Collision Report indicating that this was a non-injury accident. No citations were issued.
The Plaintiffs each filed administrative tort claims with the USPS on October 3, 2016, seeking $25, 000 in total damages in their respective administrative claims. Rita Ramone also claimed $18, 067.25 in property damage for her vehicle, which was paid by her automobile insurance provider and subsequently settled by the United States.

(Doc. 34 at 2-3)


         All remaining material facts are disputed, including, but not limited to:

1. Whether the injuries and/or damages Plaintiffs allege to have incurred are the result of Plaintiffs' own negligence and failure to exercise due care.
2. Whether the injuries and/or damages Plaintiffs allege to have incurred are the result of Mr. Recinos's negligence and/or failure to exercise due care.
3. Whether either of the parties contributed to the cause of the accident.
4. Whether Plaintiffs were damaged in any way by the accident.




         Plaintiffs “contend they properly have disclosed their treating medical providers (none of which is a “retained” expert, and none of which the United States chose to depose).” (Doc. 34 at 4) “The opinions that plaintiffs intend to obtain testimony regarding will be those opinions, including causation, which were formed within the course of treatment of [Plaintiffs], and thus not subject to the requirements under Rule 26(a)(2). Their respective disclosures also advised that they would be testifying as to the nature and extent of injuries sustained, the treatment rendered, and the medical costs of treatment to the respective plaintiffs.” (Id.) Plaintiffs note that under “California case law, treating physicians can testify based on their own knowledge and experience regarding the cost of medical services.” (Id.)


         The Government asserts “Plaintiffs failed to disclose any expert witnesses regarding causation of injuries and/or future medical expenses pursuant to Rule 26(a).” (Doc. 34 at 4) The Government “will seek to preclude the testimony of any other witness not disclosed pursuant to Rule 26, ” noting that Rule 37(c)(1) “forbid[s] the use at trial of any information required to be disclosed by Rule 26(a) that is not properly disclosed.” (Id., quoting Hoffman v. Constr. Protective Servs., 541 F.3d 1175, 1179 (9th Cir. 2008); Yeti by Molly, Ltd., 259 F.3d at 1106). Fed.R.Civ.P. 37(c)(1) provides:

If a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless.

(Doc. 34 at 4)

         In addition, the Government observes: “[P]olice reports are generally excluded from evidence as hearsay except to the extent to which they incorporate firsthand observations of the officer.” (Doc. 34 at 4, citing Annot., 69 A.L.R.2d 1148; Colvin v. United States, 479 F.2d 998, 1003 (9th Cir. 1973)) The statements by an adverse party to police officers are admissible.

         The Court observes that if a provider is not obligated to provide a report, in the expert disclosure, the party must disclose “(i) the subject matter on which the witness is expected to present evidence under Federal Rule of Evidence 702, 703, or 705; and (ii) a summary of the facts and opinions to which the witness is expected to testify.” Fed.R.Civ.P. 26(a)(2)(C). Though the parties filed their expert disclosures, it appears that they may not have filed their complete disclosure. Thus, the Court cannot determine whether they complied with Rule 26.

         On the other hand, a treating physician who forms opinion based only on the treatment record before him or her-without resort to considering information not material to the course of treatment- the treating doctor need not provide a report. Anything else requires compliance with Fed.R.Civ.P.26 (a)(2)(C). Federal Rules of Civil Procedure 37 mandates the Court to refuse to allow the presentation of any expert witness if the party failed to comply with the disclosure requirements.





         1. Ray Ramone

• Medical expenses reasonably and actually incurred in the amount of $13, 257.90
• Loss of earnings in the amount of $42, 896.80
• General damages past and future in the amount of $150, 000.00 for injuries to his shoulder and neck.

         2. Rita Ramone

• Medical expenses reasonably and actually incurred to date in the amount of $93, 434.21
• Future medical expenses according to proof
• General damages past and future in the amount of $250, 000.00 for injuries to her neck, back and knee.

         In addition, plaintiffs seek a determination of zero comparative negligence on the part of plaintiff Ray Ramone.


         The United States seeks dismissal of the Complaint. In the event Plaintiffs are successful in holding the United States liable for damages, the United States seeks a determination of comparative fault. Plaintiffs' damages, if any, are limited to the amounts set forth in their administrative claims, which in this case is $25, 000 each. 28 U.S.C. § 2675(b). Plaintiffs' damages claims are also limited by their ability to show that their claimed injuries (including future medical expenses, if any) were caused by the motor vehicle accident.

         I. ...

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