Cynthia Sue Reber Courtney Brianne Reber, by and Through Cynthia Sue Reber, Guardian Ad Litem v. United States

941 F.2d 975, 91 Cal. Daily Op. Serv. 6502, 1992 A.M.C. 23, 91 Daily Journal DAR 9882, 1991 U.S. App. LEXIS 18177, 1991 WL 151505
CourtCourt of Appeals for the Ninth Circuit
DecidedAugust 13, 1991
Docket89-55390
StatusPublished
Cited by1 cases

This text of 941 F.2d 975 (Cynthia Sue Reber Courtney Brianne Reber, by and Through Cynthia Sue Reber, Guardian Ad Litem v. United States) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Cynthia Sue Reber Courtney Brianne Reber, by and Through Cynthia Sue Reber, Guardian Ad Litem v. United States, 941 F.2d 975, 91 Cal. Daily Op. Serv. 6502, 1992 A.M.C. 23, 91 Daily Journal DAR 9882, 1991 U.S. App. LEXIS 18177, 1991 WL 151505 (9th Cir. 1991).

Opinions

HUG, Circuit Judge:

Cynthia Reber and her daughter (the “Rebers”) brought a wrongful death action against the United States. The Rebers alleged that either an overhead military shell or an unexploded military ordnance on the sea floor caused the destruction of the Cindy Fay, a fishing vessel, thereby causing the death of Boyd Reber. The United States answered the Rebers’ allegations, denying any responsibility for Reber’s death. After a bench trial, the district court entered judgment for the United States, holding that the Rebers failed to prove by a preponderance of the evidence that the destruction of the Cindy Fay was caused by an underwater explosion or an overhead shell.

FACTS

Boyd Reber was an experienced commercial fisherman who fished the waters off San Clemente Island. On February 21, 1986, Reber and Frank Germano, his sole crewman, departed San Pedro, California on board the Cindy Fay bound for a commercial fishing trip to San Clemente Island. San Clemente Island is a United States Naval Reservation where missile testing, artillery practice, and shore bombardment exercises have been conducted for more than 40 years. The areas in which these activities are conducted are subject to vari[977]*977ous restrictions and mariners are generally notified when and where the military activities will occur.

Reber had an arrangement with his wife, Cindy, where he would call her by radio at least every 72 hours while he was at sea. On February 23 at 7:00 p.m., Reber called Cindy to report that all was going well. He also informed Cindy that he would be fishing alone on the west side of the island and might not be able to call again within the 72 hours. This was the last contact Cindy had with Reber.

Reber’s body, along with some wreckage, was found off Mail Point, on the western side of San Clemente, by Paul Donohoe, another fisherman, shortly after 8:00 a.m. on March 2, 1986. Reber was not wearing a life preserver, survival suit, or a slicker when found. The following day, Frank Germano’s body was sighted on shore south of Mail Point. Germano did not have either a life preserver or a slicker on. There was also a significant amount of vessel wreckage and fishing gear in the area.

Both Reber and Germano were taken to the San Diego Coroner’s office. Dr. John Eisele, a pathologist, performed autopsies on both decedents. Although Reber’s autopsy revealed a fractured nose, broken bones above his eyes, and severe lacerations in his forehead, the cause of death was listed as saltwater drowning, which Eisele estimated had occurred less than a week prior to March 2. Likewise, Germa-no’s autopsy revealed severe lacerations across his forehead, a three-inch laceration in his chin, multiple rib fractures, and internal damage on the left side of his torso, indicating a blunt impact to the left side of his body. There were also lacerations on his left lung and liver, which were listed as the cause of death.

Between February 24 and 27, 1986, the Navy conducted three bombardment exercises at San Clemente Island. At trial, the Rebers presented extensive evidence relating to the Navy’s operations in the water off San Clemente Island during the period of time surrounding the discovery of Boyd Reber’s body. The Rebers contend that either a bomb or similar type of explosive on the ocean floor was detonated during the net retrieval operation of the Cindy Fay or that a five-inch shell from a destroyer engaged in shore bombardment exercises overshot the target area and landed in the water and exploded directly under or in very close proximity to the Cindy Fay.

Both parties introduced a great deal of expert testimony at trial to support their respective theories of what caused the destruction of the Cindy Fay and the resulting deaths. The Rebers’ experts attempted to develop the case that there had been an underwater explosion. Their experts included Mr. Joseph Hrzina, an engineer with some experience in calculating the force of explosions, and Mr. Craig Ploss, who has a Bachelor of Arts degree in political science and experience and training in underwater explosives. The Government’s expert was Dr. Robert D. Short, who has a Bachelor’s degree in Civil Engineering and a Doctor of Engineering from the University of California at Berkeley in Naval Architecture and Engineering Mechanics.

Through Dr. Short’s testimony, the Government presented extensive and detailed evidence refuting the Rebers’ theory of an underwater explosion. This testimony included evidence regarding the type of damage sustained by the Cindy Fay, the type of injuries sustained by the decedents, and the location of loose objects from the vessel. The district court, after reviewing Dr. Short’s experience record, concluded that he was “quite an impressive expert with respect to underwater explosions.”

After evaluating all the evidence presented through expert testimony, the district court found that the Rebers’ experts failed to prove by a preponderance of the evidence that an underwater explosion caused the loss of the Cindy Fay.

DISCUSSION

I.

We review findings of causation, or lack thereof, for clear error. Churchill v. The F/V Fjord, 892 F.2d 763, 770 (9th [978]*978Cir.1988), cert. denied, — U.S.-, 110 S.Ct. 3273, 111 L.Ed.2d 783 (1990).

Here, conflicting testimony existed from the Rebers’ and the Government’s experts as to the cause of the Cindy Fay’s destruction. The Rebers’ expert claimed that an underwater explosion caused the loss. In contrast, the Government expert noted that the widespread distribution of the wreckage militated against an underwater explosion, as did the equal bending of the propeller blades and the damage done to vertical posts. Therefore, the Government expert opined that an underwater explosion was not the cause of the destruction of the Cindy Fay.

The district court listened to numerous witnesses and took into account the investigative report, which noted the lack of powder burns of any sort on the wreckage. The court based its conclusion on the total sum of evidence and testimony and found that the Rebers failed to show by a preponderance of the evidence that an underwater explosion was the cause of the loss.

At trial, the Rebers relied on the doctrine of res ipsa loquitur, and they contend on appeal that the district court did not give appropriate consideration to that doctrine. Res ipsa loquitur acts as a form of circumstantial evidence that permits an inference of negligence to be drawn from a set of proven facts. Ashland v. Ling-Temco-Vought, Inc., 711 F.2d 1431, 1437 (9th Cir.1983).1 It is important to note that res ipsa loquitur does not create a presumption that a defendant’s negligence caused the injury: rather, it is only an inference that the fact finder may accept or reject in considering the whole of the evidence. Id. at 1441. Usually, the importance of the doctrine is that when the elements necessary to invoke the doctrine have been proved, that is enough to avoid a directed verdict or a summary judgment— it becomes a question of fact for the fact finder.

Here, the district judge in this bench trial did not specifically mention the doctrine of res ipsa loquitur,

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