United States District Court, E.D. California
JENNIFER L. THURSTON UNITED STATES MAGISTRATE JUDGE.
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)
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.
to the FTCA, Plaintiffs are not entitled to a trial by jury.
28 U.S.C. § 2402.
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)
remaining material facts are disputed, including, but not
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
4. Whether Plaintiffs were damaged in any way by the
DISPUTED LEGAL ISSUES
DISPUTED EVIDENTIARY ISSUES 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.)
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)
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)
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.
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.
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
• 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.
• 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.
addition, plaintiffs seek a determination of zero comparative
negligence on the part of plaintiff Ray Ramone.
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