Mendoza v. United States of America et al

Filing 66

ORDER resetting CMC. Case Management Statement due by 2/4/2016. Further Case Management Conference set for 2/11/2016 10:30 AM in Courtroom 5, 17th Floor, San Francisco.. Signed by Judge Edward M. Chen on 1/8/16. (bpf, COURT STAFF) (Filed on 1/8/2016)

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TONY WEST
Assistant Attorney General
MELINDA L. HAAG
United States Attorney
R. MICHAEL UNDERHILL
Attorney in Charge, West Coast Office
Torts Branch, Civil Division
VICKEY L. QUINN
Trial Attorney
Torts Branch, Civil Division (Admiralty)
U.S. Department of Justice
P.O. Box 36028
450 Golden Gate Avenue, Room 7-5395
San Francisco, California 94102-3463
Telephone:
[phone]
Facsimile:
[phone]
E-mail:
[e-mail]
PETER A. LINDH (061907)
MARKER E. LOVELL, JR. (208659)
CHELSEA D. YUAN (240559)
GIBSON ROBB & LINDH LLP
201 Mission Street, Suite 2700
San Francisco, California 94105
Telephone:
[phone]
Facsimile:
[phone]
Email:
[e-mail]
[e-mail]
[e-mail]
Of Counsel for Defendant
UNITED STATES OF AMERICA

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN FRANCISCO

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TERRY MENDOZA,

)
)
Plaintiff,
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v.
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UNITED STATES OF AMERICA; and
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THE REGENTS OF THE
)
UNIVERSITY OF CALIFORNIA,
)
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Defendants.
)
)
____________________________________)
JOINT CASE MANAGEMENT STATEMENT
Case No. CV-11-02158 EMC; Our File No. 8003.25

Case No. CV-11-02158 EMC
JOINT CASE MANAGEMENT
STATEMENT
Date:
Time:
Place:
Judge:

January 14, 2016
10:30 a.m.
Courtroom 5, 17th Floor
Edward M. Chen

Complaint Filed:
Trial Date:

May 2, 2011
None

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Counsel for Plaintiff:

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Gary Wm. Baun, Esq.
OBRYAN BAUN KARAMANIAN
401 S. Old Woodward, Suite 450
Birmingham, MI 48009
[phone]
[phone] fax
[e-mail]

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Counsel for Defendant:

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Marker E. Lovell, Jr., Esq.
Chelsea D. Yuan, Esq.
GIBSON ROBB & LINDH LLP
201 Missions Street, Suite 2700
San Francisco, CA 94105
[phone]
[phone] fax
[e-mail]
[e-mail]

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1.

JURISDICTION AND SERVICE:
This action is being prosecuted by Plaintiff pursuant to the Jones Act, 46 USC § 30104, et

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seq., the Suits in Admiralty Act, 46 USC § 30903, the Public Vessels Act, 46 USC § 31102, and

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the General Admiralty Law of the United States. This Court obtains original jurisdiction over the

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subject matter and parties to the suit pursuant to 28 USC § 1333(a) in addition to the above-

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statutory provisions. The parties do not contest the jurisdiction of this Court over the subject

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matter and parties to this action or venue.

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2.

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FACTS:
This action is maritime personal injury in nature and arises from an incident of injury

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suffered by Terry Mendoza on June 4, 2010, while he was acting within the scope and course of

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his employment for the University of California aboard the R/P FLIP.

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It is Plaintiff’s claim that while the R/P FLIP was being moored with the assistance of the

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USNS SIOUX, he sustained injury as a result of the negligence of the officers and crewmembers

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of both vessels, the unseaworthiness of both vessels, and failure of Defendant to provide him

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with a safe place to work.

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Defendant denies each of Plaintiff’s allegations in that regard.
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JOINT CASE MANAGEMENT STATEMENT
Case No. CV-11-02158 EMC; Our File No. 8003.25

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2A.

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The manner in which the subject accident occurred and causal connection of the accident

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to Plaintiff’s claimed injuries.

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Factual Issues:

Whether Plaintiff’s claimed injuries, if any, were caused or contributed to by the
negligence attributable to Defendant and/or the unseaworthiness of the vessel.

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Plaintiff’s comparative fault, if any.

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Recoverable damages.

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3.

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LEGAL ISSUES:
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Negligence of Defendant including, but not limited to, the failure to provide a safe
place to work.

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Negligence under the General Admiralty and Maritime Laws of the United States
including failure to use reasonable care under the circumstances including failure
to provide adequate, competent and sufficient manpower, equipment, and work
and safety procedures under the prevailing circumstances then and there present.

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•

The seaworthiness of the R/P FLIP.

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The nature and extent of damages to which Mr. Terry Mendoza is entitled under
the applicable law.

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Plaintiff’s entitlement to pre-judgment interest.

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Plaintiff’s entitlement to attorney fees.

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Defendant’s entitlement to exoneration and/or limitation of liability.

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Whether Plaintiff has mitigated his damages.

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Plaintiff’s comparative fault, if any.

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Whether Plaintiff’s claims are barred by the doctrine of laches, waiver and
estoppel.

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Whether Defendant’s actions as alleged in Plaintiff’s Complaint constitute
exercise of discretion.

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4.

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MOTIONS:
The parties do not currently anticipate any substantive motions at this time but reserve the

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right to file any necessary motions.

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5.

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AMENDMENT OF PLEADINGS:
The parties reserve the right to amend pleadings as may be necessary.

JOINT CASE MANAGEMENT STATEMENT
Case No. CV-11-02158 EMC; Our File No. 8003.25

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DISCLOSURES:
The parties have completed Rule 26 initial disclosures.

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DISCOVERY:
Plaintiff’s deposition is partially complete and he has still not yet reached maximum

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medical improvement. He has been treating for neck and shoulder problems, including dystonia,

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that he alleges are related to the incident. Given the ongoing treatment for orthopaedic injuries,

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Plaintiff had an orthopaedic IME with Dr. Richard Greenfield in September 2014, and his report

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was completed on November 2, 2014. Plaintiff desires to depose a Person Most Knowledgeable

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from the University of California regarding benefits paid to Mr. Mendoza which is being

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scheduled in the next few weeks; the Person Most Knowledgeable from the Military SeaLift

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Command regarding application and operation of ISM to the USNS SIOUX; and the USNS

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SIOUX helmsman. Plaintiff has deposed six people employed by the University of California as

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well as the master of the USNS SIOUX, Captain Brad Smith. Plaintiff has also has expressed an

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interest in deposing the defense neurologist Dr. Michael Lobatz. Plaintiff has deposed seven of

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Plaintiff’s evaluating and treating medical providers including: Alicjia Steiner, M.D.; Robert

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Warren, M.D.; Ian Purcell, M.D.; Philip Azer, M.D.; Sarah Ray, Psy. D.; Edward Brantz, M.D.;

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and William Tontz, Jr., M.D. Plaintiff also recently deposed Dr. Louis Fontana, Dr. Shams

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Sheikh, Dr. Manuel Tobias, and Captain Chris Troupe. Defendant scheduled the deposition of

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Dr. Barbara Schrock in July 2015, but due to unforeseen reasons the deposition was cancelled.

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Psychological IME testing of Plaintiff is scheduled for October 5, 2015, with Dr. Dean Delis. An

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earlier appointment was cancelled because Plaintiff’s significant other had an unforseen medical

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emergency. Defendant also wishes to schedule a neuropsychiatric IME of Plaintiff. The parties

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do not propose any limitations or modifications of the discovery rules. Further discovery is

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needed regarding Plaintiff’s allegations of negligence on the part of Defendant, and General

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Maritime Law of the United States; the unseaworthiness of the R/P FLIP and/or USNS SIOUX;

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the nature and extent of Terry Mendoza’s injuries, disability, and damages; and Defendant’s

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claims of comparative negligence on the part of Mr. Mendoza.

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JOINT CASE MANAGEMENT STATEMENT
Case No. CV-11-02158 EMC; Our File No. 8003.25

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Defendant does not wish to complete Plaintiff’s deposition until he has reached

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maximum medical improvement status. Defendant also anticipates deposing several former

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employers and associates of plaintiff who are located in Washington and Alaska.

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RELIEF:

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Plaintiff seeks monetary damages as follows:

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Pecuniary damages: Plaintiff would seek loss of wages and destruction or diminishment

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of wage earning capacity should be calculated considering the wages paid by University of

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California, San Diego, to crew members of vessels which it operated at the time of the subject

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incident June 4, 2010, with adjustments for pay increases and promotions.

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Medical expenses: The costs of ongoing medical evaluation, treatment and maintenance

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pursuant to recommendations of Mr. Mendoza’s treating and evaluating medical providers and a

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life care plan.

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Non-pecuniary damages in the nature of loss of social pleasures, fright and shock, and
pain and suffering past, present and future.

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Pre-judgment interest.
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SETTLEMENT AND ADR:
The parties reached a conditional settlement at mediation on December 17, 2015. The

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parties will finalize the settlement and file a dismissal. The parties request that the Case

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Management Conference set for January 14, 2016, be taken off calendar.

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10.

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CONSENT TO MAGISTRATE JUDGE FOR ALL PURPOSES:
At this time the parties do not consent to a Magistrate Judge.

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JOINT CASE MANAGEMENT STATEMENT
Case No. CV-11-02158 EMC; Our File No. 8003.25

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Undersigned counsel for Defendant UNITED STATES OF AMERICA, Marker E.

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Lovell, Jr., certifies that all electronic signatures below have been duly authorized by signatory

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counsel per Civil Local Rule 5.1. Marker E. Lovell, Jr., attests to have on file all holographic

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signatures corresponding to any signatures indicated by a conformed signature (/S/) within this e-

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filed document.

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Dated: January 7, 2016

Dated: January 7, 2016

OBRYAN BAUN KARAMANIAN

GIBSON ROBB & LINDH LLP

By: /S/ GARY WM. BAUN
Gary Wm. Baun
[e-mail]
Attorney for Plaintiff
TERRY MENDOZA

By: /S/ MARKER E. LOVELL, JR.
Marker E. Lovell, Jr.
[e-mail]
Attorney for Defendant
UNITED STATES OF AMERICA

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U. S. District Judge

ERED
O ORD D
IT IS S
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Judge E

. Chen

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UNIT
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NO

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IT IS SO ORDERED that the Further CMC
is reset from 1/14/16 to 2/11/16 at
10:30 a.m. An updated joint CMC statement
shall be filed by 2/4/16. The 2/11/16
CMC will be vacated once a stipulation for
dismissal is filed.
IST
___________________________________ RICT
ES D
C
AT
T
Edward M. Chen

S

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F
D IS T IC T O
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JOINT CASE MANAGEMENT STATEMENT
Case No. CV-11-02158 EMC; Our File No. 8003.25

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