Jose Madrigal v. United States

Filing 69

ORDER re: Motion for Partial Summary Judgment as to Third Cause of Action 40 ; Motion for Order to Limit Ad Damnum 41 ; Motion for Order Regarding Direct by Declaration & Order of Witnesses 42 by Judge Ronald S.W. Lew: The Court GRANTS the United States Partial MSJ; DENIES the Motion to Limit Ad Damnum; GRANTS the Motion for Direct by Declaration; and GRANTS the Request Regarding Witness Presentation. IT IS SO ORDERED. (shb)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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ORDER re: Motion for
Partial Summary Judgment
as to Third Cause of
Action [40]; Motion for
Order to Limit Ad Damnum
[41]; Motion for Order
Regarding Direct by
Declaration & Order of
Witnesses [42]

Plaintiff,

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CV 19-5041-RSWL-PLA x

JOSE MADRIGAL,

v.
UNITED STATES,
Defendant.

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Plaintiff Jose Madrigal (“Plaintiff”) filed this

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Action [1] on June 10, 2019, against Defendant United

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States, asserting claims of (1) negligence per se, (2)

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negligence, and (3) negligent hiring, retention,

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supervision, or training.

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automobile accident involving Plaintiff and a United

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States Postal Service (“USPS”) delivery truck.

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The Action arises out of an

Presently before the Court are three motions filed
by the United States: (1) Motion for Partial Summary

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Judgment [40] (“Partial MSJ”); Motion for Order to Limit

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

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Motion for Order Regarding Direct by Declaration and

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Order of Witnesses (“Motion for Direct by Declaration”)

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[42].

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Motion for Direct by Declaration a request regarding the

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presentation of witnesses (“Request Regarding Witness

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Presentation”).

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pertaining to this Motion, the Court NOW FINDS AND RULES

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AS FOLLOWS: the Court GRANTS the Partial MSJ, DENIES the

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Motion to Limit Ad Damnum, GRANTS the Motion for Direct

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by Declaration, and GRANTS the Request Regarding Witness

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Presentation.

The United States has also filed alongside its

Having reviewed all papers submitted

I.

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BACKGROUND

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Plaintiff alleges that, on June 16, 2017, he

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sustained personal injuries from a motor vehicle

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accident with a USPS delivery truck.

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ECF No. 1.

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administrative claim with the USPS for damages related

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to the accident, seeking one million dollars for

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personal injuries. 1

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Plaintiff’s personal injury claim.

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Compl. ¶¶ 1, 20,

On July 13, Plaintiff filed an

Id. ¶ 10.

The USPS did not approve
Id. ¶ 12.

Plaintiff initiated [1] this Action on June 10,

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2019.

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administrative claim for personal injuries.

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On October 31, 2019, USPS denied Plaintiff’s
Following

Plaintiff also filed a claim with USPS for property
damages, which he settled in 2017. Id. ¶ 11.
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the parties’ stipulation extending time to answer [17],

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

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2019.

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Since the subject motor vehicle accident, and

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during the pendency of this Action, Plaintiff has

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continued to undergo physical therapy and medical

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treatment, including epidural steroid injections and

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surgery.

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Pl.’s Opp’n (“Conroy Decl.”) Exs. A-E, ECF No. 46-1.

See Decl. of Thomas J. Conroy in Supp. of

On March 29, 2021, the United States filed its

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Partial MSJ [40], Motion to Limit Ad Damnum [41], and

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Motion for Direct by Declaration [42].

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untimely opposed [46, 47] the Motion to Limit Ad Damnum

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and the Motion for Direct by Declaration.

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States’ Partial MSJ stands unopposed.

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set for May 25, 2021.
II.

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A.

Plaintiff
The United

A bench trial is

DISCUSSION

Motion for Partial Summary Judgment

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The United States argues that dismissal of

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Plaintiff’s claim for negligent hiring, retention,

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training, and supervision is proper because “district

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courts lack jurisdiction over discretionary decisions

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made by federal agencies . . . under the discretionary

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function exception to the [Federal Tort Claims Act].”

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Mot. for Partial Summ. J. 2:5-12, ECF No. 40.

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agrees.

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The Court

While the Federal Tort Claims Act (“FTCA”) serves
as a limited waiver of the United States’ sovereign
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immunity, the FTCA’s discretionary function exception

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limits governmental liability.

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States, 228 F.3d 944, 948-50 (9th Cir. 2000).

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statutory discretionary function exception is

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inapplicable to:
[a]ny claim based upon an act or omission of an
employee of the [United States], exercising due
care, in the execution of a statute or
regulation . . . or based upon the exercise or
performance or the failure to exercise or
perform a discretionary function or duty on the
part of a federal agency or an employee of the
[United States], whether or not the discretion
be abused.

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28 U.S.C. § 2680(a).

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“decisions relating to the hiring, training, and

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supervision of employees usually involve policy

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judgments of the type Congress intended the

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discretionary function exception to shield.”

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United States, 228 F.3d 944, 950 (9th Cir. 2000); see

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also Gager v. United States, 149 F.3d 918, 921-22 (9th

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Cir. 1998) (applying the discretionary function

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exception because “[t]he decision not to provide

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universal training and supervision . . . involved

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judgment or choice grounded in social, economic, and

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political policy”).

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See Vickers v. United
The

The Ninth Circuit has held that

Vickers v.

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Because Plaintiff’s claim falls squarely within the

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discretionary function exception to the FTCA, the Court

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GRANTS the United States’ Partial MSJ. 2

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See, e.g., A.M.

Plaintiff filed a Proposed Pretrial Conference Order [55]
and Memorandum of Contentions of Fact and Law [50]. While
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v. United States, No. 19-CV-1108 TWR (AGS), 2020 WL

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

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that plaintiff’s claim for negligent retention,

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supervision, and hiring was barred by the discretionary

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function exception to the FTCA); Vardiman v. United

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States, No. 4:17CV2358 RLW, 2020 WL 109464, at *6 (E.D.

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Mo. Jan. 9, 2020) (same); Smith v. United States, No.

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1:17-CV-00085-GNS-HBB, 2018 WL 6308736, at *4 (W.D. Ky.

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Dec. 3, 2018) (same); White v. Soc. Sec. Admin., 111 F.

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Supp. 3d 1041, 1051 (N.D. Cal. 2015) (same); West v.

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United States, No. EDCV 15-01243-JLS (PLAx), 2016 WL

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1576382, at *3-5 (C.D. Cal. Apr. 11, 2016) (same).

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B.

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Motion for Order to Limit Ad Damnum
28 U.S.C. § 2675(b) provides that, after an

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administrative claim is denied, or six months pass since

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the administrative claim was presented, a claimant may

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file an action against the United States for an amount

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not to exceed the amount of the administrative claim.

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There are two exceptions to the

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damages: “(1) where the plaintiff proves ‘newly

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discovered evidence not reasonably discoverable at the

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time of presenting the claim to the federal agency,’ or

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(2) where the plaintiff identifies and proves

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‘intervening facts’ justifying a higher award.’”

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v. United States Postal Serv. Inc, No. 8:17-cv-00224-

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Plaintiff states in those documents his intention to proceed at
trial with his two other causes of action, he makes no mention of
the claim for negligent hiring, retention, training, and
supervision.

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statutory limit on

Wilcox

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JLS-KES, 2019 WL 4138007, at *3 (C.D. Cal. May 3, 2019)

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

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2d 1240, 1243 (S.D. Cal. 2001)).

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is whether ‘the full extent of [Plaintiff’s] injuries

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[was] reasonably foreseeable’ when the administrative

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claim was filed.”

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States, 841 F.2d 993, 999 (9th Cir. 1988)).

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“The ultimate question

Id. (quoting Richardson v. United

The subject automobile accident occurred on June
16, 2017.

Compl. ¶ 20.

Plaintiff was thereafter

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treated at Long Beach Memorial and was diagnosed with a

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head injury, cervical strain, and contusion of his left

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thigh.

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He was instructed to follow up with his primary care

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doctor.

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his administrative claim with the USPS for one million

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dollars for “bodily injury to his head, neck, back and

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legs.”

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No. 41-1.

See Conroy Decl. Ex. A, at 7-8, ECF No. 46-2.
Id. at 13.

On July 13, 2017, Plaintiff filed

Decl. of Fatimargentina Lacayo Ex. B, at 13, ECF

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After filing his administrative claim with the

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USPS, Plaintiff began physical therapy in August 2017.

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See Conroy Decl. Ex. D, ECF No. 46-5.

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series of doctors over the next two years and was given

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epidural steroid injections.

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Following a medical visit on September 11, 2018, Dr.

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Binder recommended a lumbar epidural steroid injection

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and additional physical therapy.

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He opined that “there is no need for spine surgery at

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this time.”

Id.

He visited a

See Conroy Decl. Exs. B-D.

Conroy Decl. Ex. D.

Approximately one year later, on
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September 24, 2019, Dr. Binder performed a laminectomy,

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discectomy, and fusion at Plaintiff’s lower back.

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see also Pl.’s Opp’n to Def.’s Mot. to Limit Ad Damnum

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(“Opp’n to Ad Damnum”) 2:3-6, ECF No. 46.

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avers that he continues to experience pain in his neck

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and lower back.

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Id.;

Plaintiff

Conroy Decl. ¶ 9.

The United States argues that, because Plaintiff’s

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need for surgery was reasonably discoverable at the time

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he filed his administrative claim for one million

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dollars, Plaintiff cannot seek more than one million

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dollars.

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41; see also 28 U.S.C. § 2675(b) (generally limiting a

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plaintiff’s recovery to “the amount of the claim

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presented to the federal agency”).

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States contends that all of Plaintiff’s medical

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diagnoses and treatment occurred before the USPS denied

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his administrative claim on October 31, 2019, meaning

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that Plaintiff could have amended his claim when he

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learned of the ongoing treatment.

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Damnum 6:27-7:7.

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that his medical treatment and surgery constitute

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evidence not reasonably discoverable at the time of

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presenting his administrative claim.

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5:27-6:4.

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of his injuries was not foreseeable, so he should be

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Plaintiff’s opposition was untimely. While the Court may
consider the failure to file a timely opposition consent to the
granting of the motion, see Local Rule 7-12, the Court
nonetheless proceeds to the merits.

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See generally Mot. to Limit Ad Damnum, ECF No.

Further, the United

Mot. to Limit Ad

On the other hand, Plaintiff argues 3

Opp’n to Ad Damnum

He argues that the considerable development

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permitted to seek an amount in excess of his

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administrative claim.

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

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Thus, the United States’ Motion to Limit Ad Damnum

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presents two issues: whether the extent of Plaintiff’s

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injuries was reasonably foreseeable at the time he filed

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his administrative claim, and whether Plaintiff’s

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failure to amend his administrative claim prior to final

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agency action precludes a damages award in excess of his

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administrative claim.

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The Court addresses these issues

in turn.

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1.

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Courts in the Ninth Circuit have employed the

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“reasonably foreseeable” test in determining whether a

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claimant may initiate an action for a sum in excess of

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the amount of the administrative claim.

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Wilcox, 2019 WL 4138007, at *3; Resnansky v. United

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States, No. 13-cv-05133-DMR, 2015 WL 1968606, at *3-4

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(N.D. Cal. May 1, 2015); Richardson, 841 F.2d at 999.

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That is, “a plaintiff cannot seek damages beyond the

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amount set forth in the administrative claim if the

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injuries were ‘reasonably foreseeable’ at the time the

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claim was filed.”

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(citing Richardson, 841 F.2d at 999).

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Foreseeability of Plaintiff’s Medical Expenses

See, e.g.,

Resnansky, 2015 WL 1968606, at *3

“[W]hile courts do not charge a claimant with

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knowing what the physicians could not tell him, the

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information must not have been discoverable through the

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exercise of reasonable diligence.”

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4138007, at *3 (internal citation omitted) (quoting Low
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Wilcox, 2019 WL

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v. United States, 795 F.2d 466, 470 (5th Cir. 1986)).

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claimant need not know the precise extent of his injury

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upon filing an administrative claim, but “[d]iagnoses

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which are no more than cumulative and confirmatory of

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earlier diagnoses are neither ‘newly discovered

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evidence’ nor ‘intervening facts.’”

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4138007, at *3 (quoting Reilly v. United States, 863

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F.2d 149, 171 (1st Cir. 1988)).

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inherently fact-specific.”

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A

Wilcox, 2019 WL

This inquiry “is

Wilcox, 2019 WL 4138007, at

*3 (quoting Resnansky, 2015 WL 1968606, at *4).

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The Court concludes that the extent of Plaintiff’s

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injuries was not reasonably foreseeable at the time he

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filed his administrative claim.

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diagnosis consisted of a head injury, cervical strain,

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and contusion of his left thigh. 4

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at 7-8.

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procedures Plaintiff would eventually undergo—namely, a

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laminectomy, a discectomy, and fusion at levels L4-L5

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and L5-S1.

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in August 2017—one month after filing his administrative

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claim—that the extent of his injuries came to light.

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See Conroy Decl. Ex. B, at 2.

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2017 visit to Dr. Le that the prospect of surgery

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emerged.

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Plaintiff’s initial
Conroy Decl. Ex. A,

But none of these diagnoses implicate the

It was not until Plaintiff underwent an MRI

It was also at the August

See id.

Because the increased amount that Plaintiff seeks
was not reasonably discoverable at the time of
Plaintiff was prescribed Motrin and Flexeril and
instructed to return four weeks later. Id. at 33.
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presenting his administrative claim, Plaintiff may seek

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damages in excess of one million dollars.

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§ 2675(b).

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2.

Plaintiff’s Election Not to Amend the
Administrative Claim

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See 28 U.S.C.

The United States advances the argument that

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Plaintiff should not be able to seek more than the

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amount sought in his administrative claim because

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Plaintiff could have amended his claim at any time

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before it was denied by the USPS in October 2019.

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Mot. to Limit Ad Damnum 6:26-7:7; Reply of Def. United

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States in Supp. of Mot. to Limit Ad Damnum 3:5-8, ECF

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No. 53.

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See

The Court finds this argument unavailing.

First, although USPS’s failure to issue a decision

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was not considered a final denial of Plaintiff’s

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administrative claim until Plaintiff filed this Action,

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§ 2675(c) directs district courts to evaluate the

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existence of new facts from the time the claim was

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presented, not the time of final agency action.

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U.S.C. § 2675(b).

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a sum in excess of the amount sought in his

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administrative claim if “the increased amount is based

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upon newly discovered evidence not reasonably

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discoverable at the time of presenting the claim to the

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federal agency.”

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As discussed above, since the time Plaintiff presented

See 28

That is, Plaintiff may properly seek

28 U.S.C. § 2675(b) (emphasis added).

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his claim 5 in July 2017, new facts arose permitting

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

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administrative claim.

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Second, 28 C.F.R. § 14.2(c) provides that an

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administrative claim under Section 2675 “may be amended

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by the claimant at any time prior to final agency action

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or prior to the exercise of the claimant’s option under

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28 U.S.C. § 2675(a).”

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couched in permissive terms.

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claimant to amend his claim.

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Section 14.2(c) is notably
It does not require a

Finally, to require a claimant to amend his claim

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at any time prior to final agency action would

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contravene the claimant’s option under 28 U.S.C. §

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2675(b) to initiate an action after six months based on

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the agency’s failure to issue a final denial.

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sure, some district courts have reached a contrary

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result by holding that a plaintiff must amend an

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administrative claim prior to final agency action to

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recover more than the amount sought in the initial

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claim.

To be

See, e.g., Beal v. United States, No. CV 05-

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A claim shall be deemed to have been presented when a
Federal agency receives from a claimant . . . an
executed Standard Form 95 . . . accompanied by a claim
for money damages in a sum certain for . . . personal
injury . . . alleged to have occurred by reason of the
incident; and the title or legal capacity of the person
signing, and is accompanied by evidence of his authority
to present a claim on behalf of the claimant as agent,
executor, administrator, parent, guardian, or other
representative.
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28 C.F.R. § 14.2(a).
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1278-AHM(AJWx), 2007 WL 9706707, at *3 (C.D. Cal. Mar.

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

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contention that he can sue in federal court for more

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than the amount sought in the administrative claim “must

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fail inasmuch as the plaintiff had the right at any time

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prior to final agency action to amend the claim”);

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Indus. Indem. Co. v. United States, 504 F. Supp. 394,

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399 (E.D. Cal. 1980) (same).

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yield a different result, the Court finds them

To the extent those cases

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unpersuasive and contrary to the plain language of 28

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U.S.C. § 2675 and 28 C.F.R. § 14.2(c).

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United States, No. 18-3520, 2020 WL 1151162, at *3 (E.D.

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Pa. Mar. 9, 2020) (holding that the plaintiff, although

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she could have amended her claim, “had no duty to amend

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her claim prior to the USPS issuing its final

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decision”); see also Robison v. United States, 746 F.

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Supp. 1059, 1063 (D. Kan. 1990) (stating that the

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relevant date under § 2675(b) is the time at which

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plaintiff submitted his administrative claim, not the

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date of final agency action).

See Diawara v.

For these reasons, the Court DENIES the United

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States’ Motion to Limit Ad Damnum.

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C.

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Motion for Direct by Declaration
Federal Rule of Civil Procedure 43(a) requires that

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witnesses’ testimony be “taken in open court unless a

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federal statute, the Federal Rules of Evidence, these

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rules, or other rules adopted by the Supreme Court

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provide otherwise.”

Local Rule 43-1 further provides
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that “the judge may order that the direct testimony of a

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witness be presented by written narrative statement

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subject to the witness’ cross-examination at the trial.”

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Consistent with the mandate of Federal Rule of Civil

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Procedure 43(a) that the testimony be taken in open

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court, Local Rule 43-1 states that any “written, direct

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testimony shall be adopted by the witness orally in open

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court, unless such requirement is waived.”

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The United States requests that the Court order

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direct testimony to be occasioned by written

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declarations in lieu of oral testimony.

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Mot. Regarding Direct by Decl., ECF No. 42.

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States insists that “[t]rial by direct declaration will

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substantially shorten the length of the bench trial,

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encourage the parties to eliminate cumulative and non-

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essential witnesses, reduce the cost and time expense of

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bring lay and expert witnesses to trial, and assist the

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Court in examining the medical issues related to

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Plaintiff’s damages claims.”

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See generally
The United

Id. at 2:24-28.

In opposition, Plaintiff argues 6 that, because the

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United States opposes both liability and damages, it is

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critical that witnesses provide live oral testimony.

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Pl.’s Opp’n to Def.’s Mot. Regarding Direct 1:26-2:3,

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ECF No. 47.

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is necessary for the Court to assess witness

He further argues that live oral testimony

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The Court may properly deem Plaintiff’s untimely
Opposition [47] consent to granting of the motion. See Local
Rule 7-12.
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credibility.

Id. at 1:19-25.

The Court concludes that direct testimony by

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written narrative statement is appropriate in this case.

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Local Rule 43-1 expressly allows this, and the Court is

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not convinced that the factual questions at issue are

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“not readily ascertainable from the declarations of

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witnesses.”

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Corp., 962 F.2d 853, 858 (9th Cir. 1992).

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Court can adequately assess witness credibility through

United Com. Ins. Serv., Inc. v. Paymaster
Moreover, the

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written declarations as well as during live cross-

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examination and redirect examination.

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965 F.2d 777, 780 (9th Cir. 1992) (upholding the

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bankruptcy court’s standard procedure requiring direct

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testimony by written declaration where “[w]itness

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credibility initially was established through factual

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consistency in the declarations” and the judge “had the

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opportunity to observe the declarants’ demeanor and to

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gauge their credibility during oral cross-examination

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and redirect examination”); see also Kuntz v. Sea Eagle

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Diving Adventures Corp., 199 F.R.D. 665, 667 (D. Haw.

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2001) (stating that “[t]he accuracy of each witness

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statement is assured by the declarant’s review and

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signing of the statement on penalty of perjury”).

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See In re Adair,

The use of written testimony in this case is

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compelled by Federal Rule of Evidence 611(a), which

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provides that “[t]he [C]ourt should exercise reasonable

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control over the mode and order of examining witnesses

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and presenting evidence so as to (1) make those
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procedures effective for determining the truth; [and]

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(2) avoid wasting time . . . .”

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Circuit has touted “[t]he use of written testimony ‘[a]s

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an accepted and encouraged technique for shortening

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bench trials.’”

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Cir. 1992) (citation omitted).

Further, the Ninth

In re Adair, 965 F.2d 777, 779 (9th

Accordingly, the Court GRANTS the United States’

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Motion for Order Regarding Direct by Declaration.

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D.

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Request Regarding Witness Presentation
The United States proposes that the parties

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“jointly file a witness list indicating (i) the order in

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which their witnesses will be called to testify and (ii)

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time estimates for cross-examination and re-direct of

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each witness.”

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Plaintiff does not oppose.

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The Court therefore GRANTS the United States’ Request

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Regarding Witness Presentation.

Mot. to Limit Ad Damnum 4:7-13.

III.

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Opp’n to Ad Damnum 3:8-9.

CONCLUSION

Based on the foregoing, the Court GRANTS the United

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States’ Partial MSJ; DENIES the Motion to Limit Ad

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Damnum; GRANTS the Motion for Direct by Declaration; and

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GRANTS the Request Regarding Witness Presentation.

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IT IS SO ORDERED.

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DATED: April 27, 2021

/s/ Ronald S.W. Lew
_____________________________
HONORABLE RONALD S.W. LEW
Senior U.S. District Judge

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