Johnson v. Knight Transportation, Inc. ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 SORYA JOHNSON, Case No.: 1:18-cv-01674 JLT 12 Plaintiff, PRETRIAL ORDER 13 v. 14 KNIGHT TRANSPORTATION, et al., 15 Defendants. 16 17 The plaintiff seeks monetary damages for injuries suffered as a result of an automobile 18 collision according. 19 A. JURISDICTION/ VENUE 20 This Court has original jurisdiction pursuant to 28 U.S.C. §§ 1332. The venue is proper in the 21 United States District Court for the Eastern District of California. See 28 U.S.C. § 1391. 22 B. UNDISPUTED FACTS 23 1. The collision at issue in this case occurred on July 14, 2018 at or about 6:40 a.m. in Kern 24 County, California. 25 2. On said time and date, there was a collision between a commercial motor vehicle (“CMV”) 26 being driven by Defendant Thomas Gossard and a passenger vehicle being driven by Plaintiff Sorya 27 Johnson. 28 3. At all relevant times, Defendant Thomas Earl Gossard was employed as a truck driver by 1 Defendant Knight Transportation, Inc. 2 4. At all relevant times, Defendant Thomas Earl Gossard was operating a CMV within the course 3 and scope of his employment with Defendant Knight Transportation, Inc. 4 5. At the time of the collision, Plaintiff Sorya Johnson was 37 years old. 5 6. At the time of the collision, Plaintiff Sorya Johnson was on her way to Kern Medical Center in 6 Bakersfield, California, where she was employed as a Nurse's Attendant. 7 7. At the time of the collision, Plaintiff Sorya Johnson was driving a 2015 Mitsubishi Outlander, 8 California License Plate No. 7RWC550. 9 8. At the time of the collision, Defendant Thomas Gossard was traveling from Shafter, California 10 to Phoenix, Arizona. 11 9. At the time of the collision, Defendant Thomas Gossard was operating a 2015 International 12 Tractor, Indiana License Plate No. 2206874, and hauling a 2017 Wabash Trailer, Indiana License Plate 13 No. P492330. 14 10. Prior to the collision, Defendant Thomas Gossard was traveling southbound on SR-99. 15 11. Prior to the collision, Plaintiff Sorya Johnson was traveling northbound on SR-99. 16 12. The collision occurred eastbound on California SR-58, just east of where SR-99 merges with 17 SR-58. 18 13. The CMV being driven by Defendant Thomas Gossard had been damaged in a prior incident, 19 which knocked off a fender mirror on the passenger side of the cab. 20 C. DISPUTED FACTS 21 1. The location of the collision, specifically whether the location of the collision is at the location 22 documented by Officer Marshall Miller in the California Highway Patrol report or, as Defendants contend, 23 based on Plaintiff's testimony, whether it occurred further east of said location, on eastbound SR-58. 24 2. Whether Defendant Thomas Gossard was negligent in operation of his CMV at the time of the 25 collision. 26 3. Whether Defendant Knight Transportation, Inc. negligently maintained and/or failed to repair the 27 CMV operated by Defendant Thomas Gossard at the time of the collision. 28 1 4. Whether and to what extent Defendant Knight Transportation, Inc. is liable for punitive 2 damages—specifically, for knowingly allowing operation of a damaged CMV at the time of the collision 3 in conscious disregard for the rights and safety of others. 4 5. Whether Plaintiff Sorya Johnson was comparatively negligent in driving her vehicle at the time of 5 the collision. 6 6. Whether and to what extent Plaintiff Sorya Johnson suffered injuries as a result of the collision. 7 7. The amount of Plaintiff Sorya Johnson’s compensatory damages, including her claimed 8 medical expenses, future medical expenses, past loss of income, future loss of income, and general 9 damages, if any. 10 D. DISPUTED LEGAL ISSUES 11 None. 12 E. DISPUTED EVIDENTIARY ISSUES 13 Plaintiffs: 14 Plaintiff SORYA JOHNSON anticipates filing the following motions in limine on evidentiary 15 issues: 16 1. To preclude evidence or witnesses not disclosed or produced during discovery; 17 2. To preclude Defendants from calling any undesignated and/or improperly designated expert 18 witnesses; 19 3. To preclude Defendants from offering the speculative and unqualified opinions of Thomas 20 Fugger, P.E.; 21 4. To preclude the speculative and unqualified opinions of Dr. Katherine Davis; 22 5. To preclude evidence of Plaintiff’s financial condition. At the hearing, defense counsel agreed 23 she would not seek evidence about the family’s finances in general, though the plaintiff’s income 24 remains at issue. Thus, the motion is GRANTED to this extent. 25 6. To exclude evidence of remorse and/or apology. 26 7. To preclude evidence of unrelated surgeries and medical issues, including gallbladder removal, 27 and abdominal pain with associated rectal bleeding. 28 8. To preclude Defendants from assigning fault to non-named Defendants. At the hearing, 1 defense counsel agreed this would not occur. Thus, the motion is GRANTED. 2 9. To preclude introduction of hearsay through files and/or reports of experts. 3 10. Permit demonstratives and visual aids during opening statement. 4 11. Preclude offer of evidence that Defendant has a good driving record. At the hearing, defense 5 counsel agreed this would not occur. Thus, the motion is GRANTED. 6 12. To allow counsel to discuss specific sums during voir dire and to strike jurors for cause who 7 state they cannot award a sum of damages even if supported by the evidence. 8 13. To preclude evidence of unrelated FMLA leave and time away from work in 2015 and 2016. 9 Defendant: 10 Defendants Knight Transportation Inc., and Thomas Gossard anticipate filing the following 11 motions in limine on evidentiary issues: 12 1. To preclude evidence or witnesses not disclosed or produced during discovery; 13 2. To preclude Plaintiff from calling any undesignated and/or improperly designated expert 14 witnesses; 15 3. To preclude Plaintiff from offering the speculative and unqualified opinions of Lew Grill; 16 4. To preclude Plaintiff from offering the speculative and unqualified opinions of Marius 17 Ziejewski; 18 5. To preclude Plaintiff from offering the speculative and unqualified opinions of Robert 19 Johnson; 20 6. To preclude evidence of Plaintiff’s speculative loss of future income as it relates to loss of 21 income as a Licensed Vocation Nurse or Registered Nurse; 22 7. To preclude Plaintiff's claim of negligent training, hiring, and retention based on Knight's 23 admission of Gossard's vicarious liability. 24 8. To preclude Plaintiff's use of Knight's entire policy manual and to limit said exhibits to only 25 those relating to the relevant standard of care. 26 9. To preclude the use of the SmartDrive coaching policy as irrelevant and inadmissible as to any 27 issues. 28 /// 1 F. RELIEF SOUGHT 2 Plaintiff 3 Economic damages are sought for the lost earning capacity of Sorya Johnson, who is no longer 4 able to remain a Nurse's Attendant and is now, due to her injuries and physical limitations, unable to 5 pursue further career advancement to a position as licensed vocational nurse (“LVN”) or a registered 6 nurse (“RN”). 7 Non-economic damages are sought for the physical and emotional damage suffered by Plaintiff 8 Sorya Johnson as a result of the collision and her injuries. 9 Punitive damages are sought against the Defendant Knight Transportation, Inc. for knowingly and recklessly maintaining the CMV being operated by Defendant Thomas Gossard at the time of the 10 collision. 11 G. ABANDONED ISSUES 12 None. 13 H. WITNESSES 14 1. The following is a list of witnesses that the parties expect to call at trial, including 15 rebuttal and impeachment witnesses. NO WITNESS, OTHER THAN THOSE LISTED IN THIS 16 SECTION, MAY BE CALLED AT TRIAL UNLESS THE PARTIES STIPULATE OR UPON A 17 SHOWING THAT THIS ORDER SHOULD BE MODIFIED TO PREVENT “MANIFEST 18 INJUSTICE.” Fed. R. Civ. P. 16(e); Local Rule 281(b)(10). 19 1. Sorya Johnson 20 2. Brandon Johnson 21 3. Lena Collins 22 4. Marla Bolton 23 5. Officer Marshall Miller 24 6. Chelsea Starkweather, PA-C 25 7. Danh Nguyen, M.D. 26 8. George Wahba, M.D. 27 9. Charles Wong, D.O. 28 1 10. John Gundzik, M.D. 2 11. Gregory Galdino, M.D. 3 12. Vikram Hatti, M.D. 4 13. Shannon Compton, PT 5 14. Richard Alexan, M.D. 6 15. John Brazil, M.D. 7 16. Amy Becerra, PA-C 8 17. Donal Daniels, PA-C 9 18. Clarence Chu 10 19. Thomas Earl Gossard 11 20. Ben Troglia 12 21. Bradley Hart 13 22. Renita Nunn 14 23. Roger Miller 15 24. Richard Kahmann, M.D. 16 25. Katherine Davis, PhD 17 26. Thomas Fugger, P.E. 18 27. Brian King, M.D. 19 28. Bill Smyser 20 29. Jeff Sarkesian, M.S. 21 30. David Weiner 22 31. Marius Ziejewski, PhD 23 32. Robert Johnson 24 33. Lew Grill 25 2. The court does not allow undisclosed witnesses to be called for any purpose, 26 including impeachment or rebuttal, unless they meet the following criteria: 27 a. The party offering the witness demonstrates that the witness is for the purpose 28 of rebutting evidence that could not be reasonably anticipated at the pretrial 1 conference, or 2 b. The witness was discovered after the pretrial conference and the proffering 3 party makes the showing required in paragraph B, below. 4 3. Upon the post pretrial discovery of any witness a party wishes to present at trial, the 5 party shall promptly inform the court and opposing parties of the existence of the unlisted witnesses so 6 the court may consider whether the witnesses shall be permitted to testify at trial. The witnesses will 7 not be permitted unless: 8 a. The witness could not reasonably have been discovered prior to the discovery 9 cutoff; 10 b. The court and opposing parties were promptly notified upon discovery of the 11 witness; 12 c. If time permitted, the party proffered the witness for deposition; and 13 d. If time did not permit, a reasonable summary of the witness’s testimony was 14 provided to opposing parties. 15 I. EXHIBITS, SCHEDULES AND SUMMARIES 16 The following is a list of documents or other exhibits that the parties expect to offer at trial. 17 NO EXHIBIT, OTHER THAN THOSE LISTED IN THIS SECTION, MAY BE ADMITTED 18 UNLESS THE PARTIES STIPULATE OR UPON A SHOWING THAT THIS ORDER SHOULD 19 BE MODIFIED TO PREVENT “MANIFEST INJUSTICE.” Fed. R. Civ. P. 16(e); Local Rule 20 281(b)(11). 21 1. For a party to use an undisclosed exhibit for any purpose, they must meet the 22 following criteria: 23 a. The party proffering the exhibit demonstrates that the exhibit is for the purpose of 24 rebutting evidence that could not have been reasonably anticipated, or 25 b. The exhibit was discovered after the issuance of this order and the proffering party 26 makes the showing required in paragraph 2, below. 27 2. Upon the discovery of exhibits after the discovery cutoff, a party shall promptly inform 28 the court and opposing parties of the existence of such exhibits so that the court may consider their 1 admissibility at trial. The exhibits will not be received unless the proffering party demonstrates: 2 a. The exhibits could not reasonably have been discovered earlier; 3 b. The court and the opposing parties were promptly informed of their existence; and 4 c. The proffering party forwarded a copy of the exhibits (if physically possible) to the 5 opposing party. If the exhibits may not be copied the proffering party must show 6 that it has made the exhibits reasonably available for inspection by the opposing 7 parties. 8 Joint Exhibits 9 1. Defendant Knight Transportation, Inc.’s Driver Training Manual; 10 2. Dashcam video from the day of the collision; 11 3. Maps of location; 12 4. Photos of Plaintiff; 13 5. Photos of the vehicles involved in the collision; 14 6. Photos of Defendant; 15 7. SmartDrive video from the day of the collision; 16 8. SmartDrive Coaching Policy (Defendants dispute the use of this); 17 9. Maintenance Records produced by Defendant Knight Transportation, Inc. for the CMV 18 being operated by Defendant Thomas Gossard at the time of the collision; 19 10. All depositions and Exhibits attached thereto; 20 11. Medical records of Plaintiff Sorya Johnson; 21 12. Imaging of injuries for Plaintiff Sorya Johnson; 22 13. Anatomical and medical illustrations, including digital illustrations; 23 14. Excerpts from Defendants’ expert files; 24 15. Excerpts from Plaintiff’s expert files. 25 On or before March 27, 2020 counsel SHALL meet and confer to discuss any disputes related 26 to the above listed exhibits and to pre-mark and examining each other’s exhibits. Any exhibits not 27 previously disclosed in discovery SHALL be provided via e-mail or overnight delivery so that it is 28 received by March 20, 2020. 1 1. At the exhibit conference, counsel will determine whether there are objections to the 2 admission of each of the exhibits and will prepare separate indexes; one listing joint exhibits, one 3 listing Plaintiffs’ exhibits and one listing Defendant’s exhibits. In advance of the conference, counsel 4 must have a complete set of their proposed exhibits in order to be able to fully discuss whether 5 evidentiary objections exist. Thus, any exhibit not previously provided in discovery SHALL be 6 provided at least five court days in advance of the exhibit conference. 7 2. At the conference, counsel shall identify any duplicate exhibits, i.e., any document 8 which both sides desire to introduce into evidence. These exhibits SHALL be marked as a joint 9 exhibit and numbered as directed above. Joint exhibits SHALL be admitted into without further 10 foundation. 11 All Joint exhibits will be pre-marked with numbers preceded by the designation “JT” (e.g. 12 JT/1, JT/2, etc.). Plaintiffs’ exhibits will be pre-marked with numbers beginning with 1 by the 13 designation PX (e.g. PX1, PX2, etc.). Defendant’s exhibits will be pre-marked with numbers 14 beginning with 501 preceded by the designation DX (e.g. DX501, DX502, etc.). The parties SHALL 15 number each page of any exhibit exceeding one page in length (e.g. PX1-1, PX1-2, PX1-3, etc.). 16 If originals of exhibits are unavailable, the parties may substitute legible copies. If any 17 document is offered that is not fully legible, the Court may exclude it from evidence. 18 Each joint exhibit binder shall contain an index which is placed in the binder before the 19 exhibits. The index shall consist of a column for the exhibit number, one for a description of the 20 exhibit and one column entitled “Admitted in Evidence” (as shown in the example below). 21 INDEX OF EXHIBITS 22 ADMITTED 23 EXHIBIT# DESCRIPTION IN EVIDENCE 24 3. As to any exhibit which is not a joint exhibit but to which there is no objection to its 25 introduction, the exhibit will likewise be appropriately marked, i.e., as PX1, or as DX501 and will be 26 indexed as such on the index of the offering party. Such exhibits will be admitted upon introduction 27 and motion of the party, without further foundation. 28 4. Each exhibit binder shall contain an index which is placed in the binder before the 1 exhibits. Each index shall consist of the exhibit number, the description of the exhibit and the three 2 columns as shown in the example below. 3 INDEX OF EXHIBITS 4 ADMITTED OBJECTION OTHER 5 EXHIBIT# DESCRIPTION IN EVIDENCE FOUNDATION OBJECTION 6 5. On the index, as to exhibits to which the only objection is a lack of foundation, counsel 7 will place a mark under the column heading entitled “Admissible but for Foundation.” 8 6. On the index, as to exhibits to which there are objections to admissibility that are not 9 based solely on a lack of foundation, counsel will place a mark under the column heading entitled 10 “Other Objections.” 11 After the exhibit conference, Plaintiff and counsel for the defendants SHALL develop four 12 complete, legible sets of exhibits. The parties SHALL deliver three sets of their exhibit binders to the 13 Courtroom Clerk and provide one set to their opponent, no later than 4:00 p.m., on May 8, 2020. 14 Counsel SHALL determine which of them will also provide three sets of the joint exhibits to the 15 Courtroom Clerk. 16 7. The Parties SHALL number each page of any exhibit exceeding one page in length. 17 J. POST-TRIAL EXHIBIT RETENTION 18 Counsel who introduced exhibits at trial SHALL retrieve the original exhibits from the 19 courtroom deputy following the verdict in the case. The parties’ counsel SHALL retain possession of 20 and keep safe all exhibits until final judgment and all appeals are exhausted. 21 K. DISCOVERY DOCUMENTS 22 The following is a list of discovery documents – portions of depositions, answers to 23 interrogatories, and responses to requests for admissions – that the parties expect to offer at trial. 24 NO DISCOVERY DOCUMENT, OTHER THAN THOSE LISTED IN THIS SECTION, MAY BE 25 ADMITTED UNLESS THE PARTIES STIPULATE OR UPON A SHOWING THAT THIS ORDER 26 SHOULD BE MODIFIED TO PREVENT “MANIFEST INJUSTICE.” Fed. R. Civ. P. 16(e); Local 27 Rule 281(b)(12). 28 1. Responses to requests for production by any party; 1 2. Documents produced by persons most knowledgeable; 2 3. Amended and/or supplemental responses to request for production by any party; 3 4. Any and all Responses to Interrogatories by any party; 4 5. Documents produced in response to initial and/or supplemental disclosures; and 5 6. Any and all Deposition transcripts and accompanying exhibits. 6 L. MOTIONS IN LIMINE 7 Any party may file motions in limine. The purpose of a motion in limine is to establish in 8 advance of the trial that certain evidence should not be offered at trial. “Although the Federal Rules of 9 Evidence do not explicitly authorize in limine rulings, the practice has developed pursuant to the 10 district court’s inherent authority to manage the course of trials.” Luce v. United States, 469 U.S. 38, 11 40 n. 2 (1984); Jonasson v. Lutheran Child and Family Services, 115 F.3d 436, 440 (7th Cir. 1997). 12 The Court will grant a motion in limine, and thereby bar use of the evidence in question, only if the 13 moving party establishes that the evidence clearly is not admissible for any valid purpose. Id. 14 In advance of filing any motion in limine, counsel SHALL meet and confer to determine 15 whether they can resolve any disputes and avoid filing motions in limine. The conference should 16 be in person but, if this is not possible, SHALL, at a minimum, be telephonic. Written meet- 17 and-confer conferences are unacceptable. Along with their motions in limine, the parties 18 SHALL file a certification detailing the conference such to demonstrate counsel have in good 19 faith met and conferred and attempted to resolve the dispute. Failure to provide the 20 certification may result in the Court refusing to entertain the motion. 21 Any motions in limine must be filed with the Court by April 10, 2020. The motion must 22 clearly identify the nature of the evidence that the moving party seeks to prohibit the other side from 23 offering at trial. Any opposition to the motion must be served on the other party and filed with the 24 Court by April 27, 2020. The Court sets a hearing on the motions in limine on May 5, 2020, at 3:00 25 p.m. Counsel may appear via teleconference by dialing (888) 557-8511 and entering Access Code 26 1652736, provided the Magistrate Judge's Courtroom Deputy Clerk receives a written notice of the 27 intent to appear telephonically no later than five court days before the noticed hearing date. 28 The parties are reminded they may still object to the introduction of evidence during trial. 1 M. FURTHER DISCOVERY OR MOTIONS 2 None. 3 N. STIPULATIONS 4 The parties entered into two Stipulated Protective Orders pertaining to certain documents, 5 photographs, and/or videos produced by Defendants. 6 O. AMENDMENTS/ DISMISSALS 7 None. 8 P. SETTLEMENT NEGOTIATIONS 9 The parties recently engaged in a settlement conference, but the matter has not settled. 10 Q. AGREED STATEMENT 11 None. 12 R. SEPARATE TRIAL OF ISSUES 13 None. 14 S. APPOINTMENT OF IMPARTIAL EXPERTS 15 None. 16 T. ATTORNEYS’ FEES 17 None sought. 18 U. TRIAL DATE/ ESTIMATED LENGTH OF TRIAL 19 A jury trial is set for May 11, 2020 at 8:30 a.m. before the Honorable Jennifer L. Thurston at 20 the United States Courthouse, 510 19th Street, Bakersfield, California. Trial is expected to last 5 days. 21 V. TRIAL PREPARATION AND SUBMISSIONS 22 1. Trial Briefs 23 The parties are relieved of their obligation under Local Rule 285 to file trial briefs. If any party 24 wishes to file a trial brief, they must do so in accordance with Local Rule 285 and be filed on or before 25 May 1, 2020. 26 2. Jury Voir Dire 27 The parties are required to file their proposed voir dire questions, in accordance with Local 28 Rule 162.1, on or before May 1, 2020. 1 3. Jury Instructions & Verdict Form 2 The parties shall serve, via e-mail or fax, their proposed jury instructions in accordance with 3 Local Rule 163 and their proposed verdict form on one another no later than April 3, 2020. The 4 parties shall conduct a conference to address their proposed jury instructions and verdict form no later 5 than April 20, 2019. At the conference, the parties SHALL attempt to reach agreement on jury 6 instructions and verdict form for use at trial. The parties shall file all agreed-upon jury instructions and 7 verdict form no later than April 24, 2020 and identify such as the agreed-upon jury instructions and 8 verdict forms. At the same time, the parties SHALL lodge via e-mail a copy of the joint jury 9 instructions and joint verdict form (in Word format) to JLTOrders@caed.uscourts.gov. 10 If and only if, the parties after a genuine, reasonable and good faith effort, cannot agree upon 11 certain specific jury instructions and verdict form, the parties shall file their respective proposed 12 (disputed) jury instructions and proposed (disputed) verdict form no later than April 24, 2020 and 13 identify such as the disputed jury instructions and verdict forms. At the same time, the parties SHALL 14 lodge via e-mail, a copy of his/their own (disputed) jury instructions and proposed (disputed) verdict 15 form (in Word format) to JLTOrders@caed.uscourts.gov. 16 In selecting proposed instructions, the parties shall use Ninth Circuit Model Civil Jury 17 Instructions or California’s CACI instructions to the extent possible. All jury instructions and verdict 18 forms shall indicate the party submitting the instruction or verdict form (i.e., joint, plaintiff’s, 19 defendant’s, etc.), the number of the proposed instruction in sequence, a brief title for the instruction 20 describing the subject matter, the complete text of the instruction, and the legal authority supporting 21 the instruction. Each instruction SHALL be numbered. 22 W. OBJECTIONS TO PRETRIAL ORDER 23 Any party may, within 10 days after the date of service of this order, file and serve written 24 objections to any of the provisions set forth in this order. Such objections shall clearly specify the 25 requested modifications, corrections, additions or deletions. 26 X. MISCELLANEOUS MATTERS 27 None. 28 Y. COMPLIANCE 1 Strict compliance with this order and its requirements is mandatory. All parties and their 2 counsel are subject to sanctions, including dismissal or entry of default, for failure to fully comply 3 with this order and its requirements. 4 5 IT IS SO ORDERED. 6 Dated: February 24, 2020 /s/ Jennifer L. Thurston 7 UNITED STATES MAGISTRATE JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28