Jose Madrigal v. United States

• Court: District Court, C.D. California
• Decided: April 27, 2021
• Docket: 2:19-cv-05041
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 CV 19-5041-RSWL-PLA x 12 JOSE MADRIGAL, ORDER re: Motion for 13 Plaintiff, Partial Summary Judgment 14 v. as to Third Cause of Action [40]; Motion for 15 Order to Limit Ad Damnum UNITED STATES, [41]; Motion for Order 16 Regarding Direct by Defendant. 17 Declaration & Order of Witnesses [42] 18 19 Plaintiff Jose Madrigal (“Plaintiff”) filed this 20 Action [1] on June 10, 2019, against Defendant United 21 States, asserting claims of (1) negligence per se, (2) 22 negligence, and (3) negligent hiring, retention, 23 supervision, or training. The Action arises out of an 24 automobile accident involving Plaintiff and a United 25 States Postal Service (“USPS”) delivery truck. 26 Presently before the Court are three motions filed 27 by the United States: (1) Motion for Partial Summary 28 1 Judgment [40] (“Partial MSJ”); Motion for Order to Limit

2 Ad Damnum (“Motion to Limit Ad Damnum”) [41]; and (3)

3 Motion for Order Regarding Direct by Declaration and 4 Order of Witnesses (“Motion for Direct by Declaration”) 5 [42]. The United States has also filed alongside its 6 Motion for Direct by Declaration a request regarding the 7 presentation of witnesses (“Request Regarding Witness 8 Presentation”). Having reviewed all papers submitted 9 pertaining to this Motion, the Court NOW FINDS AND RULES 10 AS FOLLOWS: the Court GRANTS the Partial MSJ, DENIES the 11 Motion to Limit Ad Damnum, GRANTS the Motion for Direct 12 by Declaration, and GRANTS the Request Regarding Witness 13 Presentation. 14 I. BACKGROUND 15 Plaintiff alleges that, on June 16, 2017, he 16 sustained personal injuries from a motor vehicle 17 accident with a USPS delivery truck. Compl. ¶¶ 1, 20, 18 ECF No. 1. On July 13, Plaintiff filed an 19 administrative claim with the USPS for damages related 20 to the accident, seeking one million dollars for 21 personal injuries.1 Id. ¶ 10. The USPS did not approve 22 Plaintiff’s personal injury claim. Id. ¶ 12. 23 Plaintiff initiated [1] this Action on June 10, 24 2019. On October 31, 2019, USPS denied Plaintiff’s 25 administrative claim for personal injuries. Following 26 1 Plaintiff also filed a claim with USPS for property 27 damages, which he settled in 2017. Id. ¶ 11. 28 1 the parties’ stipulation extending time to answer [17],

2 the United States filed its Answer [21] on December 23,

3 2019. 4 Since the subject motor vehicle accident, and 5 during the pendency of this Action, Plaintiff has 6 continued to undergo physical therapy and medical 7 treatment, including epidural steroid injections and 8 surgery. See Decl. of Thomas J. Conroy in Supp. of 9 Pl.’s Opp’n (“Conroy Decl.”) Exs. A-E, ECF No. 46-1. 10 On March 29, 2021, the United States filed its 11 Partial MSJ [40], Motion to Limit Ad Damnum [41], and 12 Motion for Direct by Declaration [42]. Plaintiff 13 untimely opposed [46, 47] the Motion to Limit Ad Damnum 14 and the Motion for Direct by Declaration. The United 15 States’ Partial MSJ stands unopposed. A bench trial is 16 set for May 25, 2021. 17 II. DISCUSSION 18 A. Motion for Partial Summary Judgment 19 The United States argues that dismissal of 20 Plaintiff’s claim for negligent hiring, retention, 21 training, and supervision is proper because “district 22 courts lack jurisdiction over discretionary decisions 23 made by federal agencies . . . under the discretionary 24 function exception to the [Federal Tort Claims Act].” 25 Mot. for Partial Summ. J. 2:5-12, ECF No. 40. The Court 26 agrees. 27 While the Federal Tort Claims Act (“FTCA”) serves 28 as a limited waiver of the United States’ sovereign 1 immunity, the FTCA’s discretionary function exception

2 limits governmental liability. See Vickers v. United

3 States, 228 F.3d 944, 948-50 (9th Cir. 2000). The 4 statutory discretionary function exception is 5 inapplicable to: [a]ny claim based upon an act or omission of an 6 employee of the [United States], exercising due 7 care, in the execution of a statute or regulation . . . or based upon the exercise or 8 performance or the failure to exercise or 9 perform a discretionary function or duty on the part of a federal agency or an employee of the 10 [United States], whether or not the discretion 11 be abused. 12 28 U.S.C. § 2680(a). The Ninth Circuit has held that 13 “decisions relating to the hiring, training, and 14 supervision of employees usually involve policy 15 judgments of the type Congress intended the 16 discretionary function exception to shield.” Vickers v. 17 United States, 228 F.3d 944, 950 (9th Cir. 2000); see 18 also Gager v. United States, 149 F.3d 918, 921-22 (9th 19 Cir. 1998) (applying the discretionary function 20 exception because “[t]he decision not to provide 21 universal training and supervision . . . involved 22 judgment or choice grounded in social, economic, and 23 political policy”). 24 Because Plaintiff’s claim falls squarely within the 25 discretionary function exception to the FTCA, the Court 26 GRANTS the United States’ Partial MSJ.2 See, e.g., A.M. 27 2 Plaintiff filed a Proposed Pretrial Conference Order [55] 28 and Memorandum of Contentions of Fact and Law [50]. While 1 v. United States, No. 19-CV-1108 TWR (AGS), 2020 WL

2 6276021, at *4-6 (S.D. Cal. Oct. 23, 2020) (concluding

3 that plaintiff’s claim for negligent retention, 4 supervision, and hiring was barred by the discretionary 5 function exception to the FTCA); Vardiman v. United 6 States, No. 4:17CV2358 RLW, 2020 WL 109464, at *6 (E.D. 7 Mo. Jan. 9, 2020) (same); Smith v. United States, No. 8 1:17-CV-00085-GNS-HBB, 2018 WL 6308736, at *4 (W.D. Ky. 9 Dec. 3, 2018) (same); White v. Soc. Sec. Admin., 111 F. 10 Supp. 3d 1041, 1051 (N.D. Cal. 2015) (same); West v. 11 United States, No. EDCV 15-01243-JLS (PLAx), 2016 WL 12 1576382, at *3-5 (C.D. Cal. Apr. 11, 2016) (same). 13 B. Motion for Order to Limit Ad Damnum 14 28 U.S.C. § 2675(b) provides that, after an 15 administrative claim is denied, or six months pass since 16 the administrative claim was presented, a claimant may 17 file an action against the United States for an amount 18 not to exceed the amount of the administrative claim. 19 There are two exceptions to the statutory limit on 20 damages: “(1) where the plaintiff proves ‘newly 21 discovered evidence not reasonably discoverable at the 22 time of presenting the claim to the federal agency,’ or 23 (2) where the plaintiff identifies and proves 24 ‘intervening facts’ justifying a higher award.’” Wilcox 25 v. United States Postal Serv. Inc, No. 8:17-cv-00224-

26 Plaintiff states in those documents his intention to proceed at trial with his two other causes of action, he makes no mention of 27 the claim for negligent hiring, retention, training, and 28 supervision. 1 JLS-KES, 2019 WL 4138007, at *3 (C.D. Cal. May 3, 2019)

2 (quoting Salcedo-Albanez v. United States, 149 F. Supp.

3 2d 1240, 1243 (S.D. Cal. 2001)). “The ultimate question 4 is whether ‘the full extent of [Plaintiff’s] injuries 5 [was] reasonably foreseeable’ when the administrative 6 claim was filed.” Id. (quoting Richardson v. United 7 States, 841 F.2d 993, 999 (9th Cir. 1988)). 8 The subject automobile accident occurred on June 9 16, 2017. Compl. ¶ 20. Plaintiff was thereafter 10 treated at Long Beach Memorial and was diagnosed with a 11 head injury, cervical strain, and contusion of his left 12 thigh. See Conroy Decl. Ex. A, at 7-8, ECF No. 46-2. 13 He was instructed to follow up with his primary care 14 doctor. Id. at 13. On July 13, 2017, Plaintiff filed 15 his administrative claim with the USPS for one million 16 dollars for “bodily injury to his head, neck, back and 17 legs.” Decl. of Fatimargentina Lacayo Ex. B, at 13, ECF 18 No. 41-1. 19 After filing his administrative claim with the 20 USPS, Plaintiff began physical therapy in August 2017. 21 See Conroy Decl. Ex. D, ECF No. 46-5. He visited a 22 series of doctors over the next two years and was given 23 epidural steroid injections. See Conroy Decl. Exs. B-D. 24 Following a medical visit on September 11, 2018, Dr. 25 Binder recommended a lumbar epidural steroid injection 26 and additional physical therapy. Conroy Decl. Ex. D. 27 He opined that “there is no need for spine surgery at 28 this time.” Id. Approximately one year later, on 1 September 24, 2019, Dr. Binder performed a laminectomy,

2 discectomy, and fusion at Plaintiff’s lower back. Id.;

3 see also Pl.’s Opp’n to Def.’s Mot. to Limit Ad Damnum 4 (“Opp’n to Ad Damnum”) 2:3-6, ECF No. 46. Plaintiff 5 avers that he continues to experience pain in his neck 6 and lower back. Conroy Decl. ¶ 9. 7 The United States argues that, because Plaintiff’s 8 need for surgery was reasonably discoverable at the time 9 he filed his administrative claim for one million 10 dollars, Plaintiff cannot seek more than one million 11 dollars. See generally Mot. to Limit Ad Damnum, ECF No. 12 41; see also 28 U.S.C. § 2675(b) (generally limiting a 13 plaintiff’s recovery to “the amount of the claim 14 presented to the federal agency”). Further, the United 15 States contends that all of Plaintiff’s medical 16 diagnoses and treatment occurred before the USPS denied 17 his administrative claim on October 31, 2019, meaning 18 that Plaintiff could have amended his claim when he 19 learned of the ongoing treatment. Mot. to Limit Ad 20 Damnum 6:27-7:7. On the other hand, Plaintiff argues3 21 that his medical treatment and surgery constitute 22 evidence not reasonably discoverable at the time of 23 presenting his administrative claim. Opp’n to Ad Damnum 24 5:27-6:4. He argues that the considerable development 25 of his injuries was not foreseeable, so he should be

26 3 Plaintiff’s opposition was untimely. While the Court may consider the failure to file a timely opposition consent to the 27 granting of the motion, see Local Rule 7-12, the Court 28 nonetheless proceeds to the merits. 1 permitted to seek an amount in excess of his

2 administrative claim. Id. at 4:15-5:18, 7:3-4.

3 Thus, the United States’ Motion to Limit Ad Damnum 4 presents two issues: whether the extent of Plaintiff’s 5 injuries was reasonably foreseeable at the time he filed 6 his administrative claim, and whether Plaintiff’s 7 failure to amend his administrative claim prior to final 8 agency action precludes a damages award in excess of his 9 administrative claim. The Court addresses these issues 10 in turn. 11 1. Foreseeability of Plaintiff’s Medical Expenses 12 Courts in the Ninth Circuit have employed the 13 “reasonably foreseeable” test in determining whether a 14 claimant may initiate an action for a sum in excess of 15 the amount of the administrative claim. See, e.g., 16 Wilcox, 2019 WL 4138007, at *3; Resnansky v. United 17 States, No. 13-cv-05133-DMR, 2015 WL 1968606, at *3-4 18 (N.D. Cal. May 1, 2015); Richardson, 841 F.2d at 999. 19 That is, “a plaintiff cannot seek damages beyond the 20 amount set forth in the administrative claim if the 21 injuries were ‘reasonably foreseeable’ at the time the 22 claim was filed.” Resnansky, 2015 WL 1968606, at *3 23 (citing Richardson, 841 F.2d at 999). 24 “[W]hile courts do not charge a claimant with 25 knowing what the physicians could not tell him, the 26 information must not have been discoverable through the 27 exercise of reasonable diligence.” Wilcox, 2019 WL 28 4138007, at *3 (internal citation omitted) (quoting Low 1 v. United States, 795 F.2d 466, 470 (5th Cir. 1986)). A 2 claimant need not know the precise extent of his injury

3 upon filing an administrative claim, but “[d]iagnoses 4 which are no more than cumulative and confirmatory of 5 earlier diagnoses are neither ‘newly discovered 6 evidence’ nor ‘intervening facts.’” Wilcox, 2019 WL 7 4138007, at *3 (quoting Reilly v. United States, 863 8 F.2d 149, 171 (1st Cir. 1988)). This inquiry “is 9 inherently fact-specific.” Wilcox, 2019 WL 4138007, at 10 *3 (quoting Resnansky, 2015 WL 1968606, at *4). 11 The Court concludes that the extent of Plaintiff’s 12 injuries was not reasonably foreseeable at the time he 13 filed his administrative claim. Plaintiff’s initial 14 diagnosis consisted of a head injury, cervical strain, 15 and contusion of his left thigh.4 Conroy Decl. Ex. A, 16 at 7-8. But none of these diagnoses implicate the 17 procedures Plaintiff would eventually undergo—namely, a 18 laminectomy, a discectomy, and fusion at levels L4-L5 19 and L5-S1. It was not until Plaintiff underwent an MRI 20 in August 2017—one month after filing his administrative 21 claim—that the extent of his injuries came to light. 22 See Conroy Decl. Ex. B, at 2. It was also at the August 23 2017 visit to Dr. Le that the prospect of surgery 24 emerged. See id. 25 Because the increased amount that Plaintiff seeks 26 was not reasonably discoverable at the time of 27 4 Plaintiff was prescribed Motrin and Flexeril and 28 instructed to return four weeks later. Id. at 33. 1 presenting his administrative claim, Plaintiff may seek

2 damages in excess of one million dollars. See 28 U.S.C. 3 § 2675(b). 4 2. Plaintiff’s Election Not to Amend the 5 Administrative Claim 6 The United States advances the argument that 7 Plaintiff should not be able to seek more than the 8 amount sought in his administrative claim because 9 Plaintiff could have amended his claim at any time 10 before it was denied by the USPS in October 2019. See 11 Mot. to Limit Ad Damnum 6:26-7:7; Reply of Def. United 12 States in Supp. of Mot. to Limit Ad Damnum 3:5-8, ECF 13 No. 53. The Court finds this argument unavailing. 14 First, although USPS’s failure to issue a decision 15 was not considered a final denial of Plaintiff’s 16 administrative claim until Plaintiff filed this Action, 17 § 2675(c) directs district courts to evaluate the 18 existence of new facts from the time the claim was 19 presented, not the time of final agency action. See 28 20 U.S.C. § 2675(b). That is, Plaintiff may properly seek 21 a sum in excess of the amount sought in his 22 administrative claim if “the increased amount is based 23 upon newly discovered evidence not reasonably 24 discoverable at the time of presenting the claim to the 25 federal agency.” 28 U.S.C. § 2675(b) (emphasis added). 26 As discussed above, since the time Plaintiff presented 27 28 1 his claim5 in July 2017, new facts arose permitting

2 Plaintiff to seek a sum in excess of the amount in the

3 administrative claim. 4 Second, 28 C.F.R. § 14.2(c) provides that an 5 administrative claim under Section 2675 “may be amended 6 by the claimant at any time prior to final agency action 7 or prior to the exercise of the claimant’s option under 8 28 U.S.C. § 2675(a).” Section 14.2(c) is notably 9 couched in permissive terms. It does not require a 10 claimant to amend his claim. 11 Finally, to require a claimant to amend his claim 12 at any time prior to final agency action would 13 contravene the claimant’s option under 28 U.S.C. § 14 2675(b) to initiate an action after six months based on 15 the agency’s failure to issue a final denial. To be 16 sure, some district courts have reached a contrary 17 result by holding that a plaintiff must amend an 18 administrative claim prior to final agency action to 19 recover more than the amount sought in the initial 20 claim. See, e.g., Beal v. United States, No. CV 05- 21 22 5 A claim shall be deemed to have been presented when a Federal agency receives from a claimant . . . an 23 executed Standard Form 95 . . . accompanied by a claim for money damages in a sum certain for . . . personal 24 injury . . . alleged to have occurred by reason of the incident; and the title or legal capacity of the person 25 signing, and is accompanied by evidence of his authority 26 to present a claim on behalf of the claimant as agent, executor, administrator, parent, guardian, or other 27 representative. 28 28 C.F.R. § 14.2(a). 1 1278-AHM(AJWx), 2007 WL 9706707, at *3 (C.D. Cal. Mar.

2 29, 2007) (citation omitted) (stating that a plaintiff’s

3 contention that he can sue in federal court for more 4 than the amount sought in the administrative claim “must 5 fail inasmuch as the plaintiff had the right at any time 6 prior to final agency action to amend the claim”); 7 Indus. Indem. Co. v. United States, 504 F. Supp. 394, 8 399 (E.D. Cal. 1980) (same). To the extent those cases 9 yield a different result, the Court finds them 10 unpersuasive and contrary to the plain language of 28 11 U.S.C. § 2675 and 28 C.F.R. § 14.2(c). See Diawara v. 12 United States, No. 18-3520, 2020 WL 1151162, at *3 (E.D. 13 Pa. Mar. 9, 2020) (holding that the plaintiff, although 14 she could have amended her claim, “had no duty to amend 15 her claim prior to the USPS issuing its final 16 decision”); see also Robison v. United States, 746 F. 17 Supp. 1059, 1063 (D. Kan. 1990) (stating that the 18 relevant date under § 2675(b) is the time at which 19 plaintiff submitted his administrative claim, not the 20 date of final agency action). 21 For these reasons, the Court DENIES the United 22 States’ Motion to Limit Ad Damnum. 23 C. Motion for Direct by Declaration 24 Federal Rule of Civil Procedure 43(a) requires that 25 witnesses’ testimony be “taken in open court unless a 26 federal statute, the Federal Rules of Evidence, these 27 rules, or other rules adopted by the Supreme Court 28 provide otherwise.” Local Rule 43-1 further provides 1 that “the judge may order that the direct testimony of a

2 witness be presented by written narrative statement

3 subject to the witness’ cross-examination at the trial.” 4 Consistent with the mandate of Federal Rule of Civil 5 Procedure 43(a) that the testimony be taken in open 6 court, Local Rule 43-1 states that any “written, direct 7 testimony shall be adopted by the witness orally in open 8 court, unless such requirement is waived.” 9 The United States requests that the Court order 10 direct testimony to be occasioned by written 11 declarations in lieu of oral testimony. See generally 12 Mot. Regarding Direct by Decl., ECF No. 42. The United 13 States insists that “[t]rial by direct declaration will 14 substantially shorten the length of the bench trial, 15 encourage the parties to eliminate cumulative and non- 16 essential witnesses, reduce the cost and time expense of 17 bring lay and expert witnesses to trial, and assist the 18 Court in examining the medical issues related to 19 Plaintiff’s damages claims.” Id. at 2:24-28. 20 In opposition, Plaintiff argues6 that, because the 21 United States opposes both liability and damages, it is 22 critical that witnesses provide live oral testimony. 23 Pl.’s Opp’n to Def.’s Mot. Regarding Direct 1:26-2:3, 24 ECF No. 47. He further argues that live oral testimony 25 is necessary for the Court to assess witness 26 6 The Court may properly deem Plaintiff’s untimely 27 Opposition [47] consent to granting of the motion. See Local 28 Rule 7-12. 1 credibility. Id. at 1:19-25.

2 The Court concludes that direct testimony by

3 written narrative statement is appropriate in this case. 4 Local Rule 43-1 expressly allows this, and the Court is 5 not convinced that the factual questions at issue are 6 “not readily ascertainable from the declarations of 7 witnesses.” United Com. Ins. Serv., Inc. v. Paymaster 8 Corp., 962 F.2d 853, 858 (9th Cir. 1992). Moreover, the 9 Court can adequately assess witness credibility through 10 written declarations as well as during live cross- 11 examination and redirect examination. See In re Adair, 12 965 F.2d 777, 780 (9th Cir. 1992) (upholding the 13 bankruptcy court’s standard procedure requiring direct 14 testimony by written declaration where “[w]itness 15 credibility initially was established through factual 16 consistency in the declarations” and the judge “had the 17 opportunity to observe the declarants’ demeanor and to 18 gauge their credibility during oral cross-examination 19 and redirect examination”); see also Kuntz v. Sea Eagle 20 Diving Adventures Corp., 199 F.R.D. 665, 667 (D. Haw. 21 2001) (stating that “[t]he accuracy of each witness 22 statement is assured by the declarant’s review and 23 signing of the statement on penalty of perjury”). 24 The use of written testimony in this case is 25 compelled by Federal Rule of Evidence 611(a), which 26 provides that “[t]he [C]ourt should exercise reasonable 27 control over the mode and order of examining witnesses 28 and presenting evidence so as to (1) make those 1 procedures effective for determining the truth; [and] 2 (2) avoid wasting time . . . .” Further, the Ninth

3 Circuit has touted “[t]he use of written testimony ‘[a]s 4 an accepted and encouraged technique for shortening 5 bench trials.’” In re Adair, 965 F.2d 777, 779 (9th 6 Cir. 1992) (citation omitted). 7 Accordingly, the Court GRANTS the United States’ 8 Motion for Order Regarding Direct by Declaration. 9 D. Request Regarding Witness Presentation 10 The United States proposes that the parties 11 “jointly file a witness list indicating (i) the order in 12 which their witnesses will be called to testify and (ii) 13 time estimates for cross-examination and re-direct of 14 each witness.” Mot. to Limit Ad Damnum 4:7-13. 15 Plaintiff does not oppose. Opp’n to Ad Damnum 3:8-9. 16 The Court therefore GRANTS the United States’ Request 17 Regarding Witness Presentation. 18 III. CONCLUSION 19 Based on the foregoing, the Court GRANTS the United 20 States’ Partial MSJ; DENIES the Motion to Limit Ad 21 Damnum; GRANTS the Motion for Direct by Declaration; and 22 GRANTS the Request Regarding Witness Presentation. 23 24 IT IS SO ORDERED. 25 26 DATED: April 27, 2021 _________/s_/ R_o_n_ald_ _S._W_. _Le_w__________ HONORABLE RONALD S.W. LEW 27 Senior U.S. District Judge 28