Tucker v. Cascade General, Inc. et al

Filing 314

ORDER on OBJECTIONS TO EXHIBITS - Tucker's Final Exhibit List 269 and Defendant's Final (Amended) Exhibit List 279 . IT IS SO ORDERED. DATED this 23rd day of April, 2014, by United States Magistrate Judge John V. Acosta. (see full 8-page order attached to this entry) (peg)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PORTLAND DIVISION

PHILIP TUCKER and TONI ROTTEN,
Plaintiff,

3:09-cv-1491-AC
ORDER ON OBJECTIONS TO EXHIBITS

v.
CASCADE GENERAL, INC., an Oregon
corporation; and UNITED STATES OF
AMERICA,
Defendants.
ACOSTA, Magistrate Judge:
This order addresses the parties' exhibit lists, which appear in the court file as Docket No.
269 (Tucker's Final Exhibit List), and Docket No. 279 (Final (Amended) Exhibit List of Defendant,
United States' of American) This comt issued a separate order containing its rulings on the patties'
motions in limine. To the extent the parties made objections to the proposed exhibits that fall within
the scope of the motions in limine, the patties are directed to consult the court's rulings on those
motions. In the event of a conflict between the court's rulings on the motions in limine and the

I - ORDER: OBJECTIONS TO EXHIBITS

court's ruling on an objection to a proposed exhibit, the cowt's ruling on the motions in limine
controls.

I.

Phillip Tucker's Exhibits 1

A.

Tucker's Exhibit No. 318 (H-1, Page 5-7)

This document is a report issued by Dr. Danielle Erb in response to a request by Tucker's
counsel. The United States objects to this document, and related expe1t testimony, as not properly
disclosed pursuant to Rule 26. Exclusion of Dr. Erb's testimony is detailed in the United States'
Motion in Limine No. 9A.

RULING:

B.

SUSTAINED, in part, and OVERRULED, in part, in accordance with
the court's ruling on the United States' Motion in Limine No. 9A.

Tucker's Exhibit No. 327 (Demonstrative Exhibit)

This is a demonstrative exhibit, a model of the access way in the upper pump room. The
United States objects to this demonstrative exhibit on the grounds it is inelevant, hearsay, lacks
foundation, undue prejudice and potentially confusing or misleading. Counsel for the United States
has not examined the model.

RULING:

II.

DEFERRED. The court will allow Tucker an opportunity at trial to
establish a foundation for this exhibit.

United States' Exhibits

A.

United States' Expert Reports- Exhibits Nos. 547, 551-554, 558, 568-571, 580-583

The United States' Exhibit Nos. 547, 551-554, 558, 568-571, 580-583 are expe1t repmts.
Tucker objects to the admission ofthe United States' expeit witnesses' repmts. Tucker contends the

1

For the purpose of preserving objections, the United States reasserts all objections
previously made with respect to exhibits. Unless expressly noted, all prior rulings by the court to
objections on exhibits remain in effect.
2 - ORDER: OBJECTIONS TO EXHIBITS

enumerated repmts of expe11s are inadmissable because they include hearsay and are cumulative of
the witnesses' live testimony.
Previously, inresponse to Tucker's objections, including unfair prejudice before the jury, the
court excluded the government's expe11 repmts- Exhibits Nos. 527, 528, 529, 530, 531, and 532.
The United States contends with a bench trial unfair prejudice to the jmy is no longer a concem. The
government asse11s, without citation, that expe11 repmts typically are admitted as exhibits in
admiralty bench trials. Further, the United States argues expe11 reports are admissible even injmy
trials, pursuant to FED. R. EVID. 703, for the limited purpose of providing a foundational showing
of the facts and data relied upon by the expert in forming his/her opinion. The reports are not
admissible to prove the truth of the matter asserted. See Paddackv. Dave Christensen, Inc., 745 F.2d
1254, 1262 (9th Cir. 1984) ("the hearsay evidence is to be considered solely as a basis for the expert
opinion and not as substantive evidence").
RULING:

B.

SUSTAINED. While expert reports are admissible under Rule 703, to
be considered solely as a basis for the expert opinion, it seems
unnecessary in this case. Certainly, the United States can elicit testimony
from its experts to explain the foundation for their respective opinions
and conclusions. Alternatively, if the government can cite to legal
authority in support of its contention that expert reports are typically
admitted as exhibits in admiralty trials before the bench, the exhibits
may be received for the limited purpose allowed under Rule 703.

United States' Exhibit No. 555- Settlement Agreement

The United States' Exhibit No. 555 is the Settlement Agreement between Tucker and
Cascade General, Inc. ("Cascade"). Tucker objects to the admission of this Agreement on the
ground it is not relevant. According to Tucker, Cascade and the United States are jointly and
severally liable for the harm incurred.

3 - ORDER: OBJECTIONS TO EXHIBITS

The United States contends Tucker fundamentally misstates the law regarding the
government's allocation of fault. Relying upon the Supreme Comi's decision in lvfcDermott, Inc.
v. AmClyde, 511 U.S. 202 (1994), the United States asserts a nonsettling party in an admiralty case

may be held liable only for its proportionate share of fault. The United States maintains a settlement
in an admiralty case changes the n01malrules of joint and several liability, whereby a plaintiff
(absent settlement with the settling defendant) could collect I 00% of his damages from the other codefendant found only 10% at fault. See In re Exxon Valdez, 229 F.3d 790, 796-97 (9th Cir. 2000)
("The proportionate share approach is the law in the Ninth Circuit, has been adopted by the Supreme
Court for use in maritime actions, and is the approach recommended by the American Law
Institute."). Accordingly, the United States insists the Settlement Agreement is relevant to the issues
to be resolved through trial and should not be excluded.
In lvfcDermott, Inc., 511 U.S. 202, the Court considered the proper method for calculating
liability for nonsettling defendants in admiralty tort cases. After analyzing three altematives, the
Comi concluded the liability of nonsettling defendants should be calculated with reference to the
allocation of proportionate responsibility rather than giving nonsettling defendants a credit for the
amount of the settlements obtained by plaintiffs. Id. at 204.
Under ivfcDermott, Inc., "no suits for contribution from the settling defendants are petmitted,
nor are they necessary," because nonsettling defendants will pay no more than their share of the
judgment. Id at 209 (as determined by the factfinder). The Couti noted joint and several liability
allows a plaintiff to recover from one of many defendants when a plaintiffs recovery is limited by
factors outside the plaintiffs control, such as a defendant's insolvency, thus making other
defendants, rather than the innocent plaintiff, responsible for the shortfall. !d. at 220-21. When a

4 - ORDER: OBJECTIONS TO EXHIBITS

settlement occurs, however, plaintiffs recovery has not been limited by outside forces, but instead
by plaintiffs own decision to settle. !d. at 221. Thus, the Court found no reason to allocate a
potential shortfall to a nonsettling defendant and allow plaintiff a double recovety. "Just as the other
defendants are not entitled to a reduction in liability when the plaintiff negotiates a generous
settlement ... so they are not required to shoulder disproportionate liability when the plaintiff
negotiates a meager one." !d.
RULING:

C.

SUSTAINED. The United States is correct that under the circumstances
of this case, i.e., Cascade's settlement with Tucker, it cannot be held
jointly and severally liable for the damages arising from the harm to
Tucker. Under the "proportionate share" approach adopted by the
Supreme Court in McDermott, Inc., settling parties are not entitled to
seel{ contribution or indemnity because settling parties assume the
finality and potential benefit and risk oftheir settlement decisions. Here,
the government is liable only for its portion of the harm caused, i.e., the
final judgment of liability against the United States is decreased by the
percentage of fault attributed to Cascade. Nevertheless, the Settlement
Agreement is not relevant to the govemment's apportionment ofliability
as the United States is not entitled to deduct amounts paid by Cascade
from the proportionate amount of the damages owed due to the
government's wrongful conduct. A settlingtortfeasor is presumed to pay
only for his proportionate liability, and the nonsettling defendants get no
credit for the amount paid by a settling tortfeasor. Thus, the United
States' liability in this case will be calculated in reference to this court's
allocation of proportionate liability for the total damages incurred,
without regard to amounts paid by Cascade.

United States' Exhibit No. 556- Dr. Anne Hamburg's List of Work Restrictions

The United States' Exhibit No. 556 is Dr. Anne Hamburg's list of work restrictions. Tucker
objects to the admission of this document for lack of foundation because Dr. Hamburg, one of
Tucker's treating physicians, is not a vocational expeti.
The United States contends physicians determine work restrictions, vocational expetis apply
them. According to the government, in worker injmy cases, doctors commonly prepare a list of work
5 -ORDER: OBJECTIONS TO EXHIBITS

restrictions that are then used by vocational experts to determine suitable employment. Dr.
Hamburg's list of restrictions is a list of the type typically prepared by doctors.
RULING:

D.

OVERRULED.

United States' Exhibit No. 571 - Thomas Dyer's Report

The United States Exhibit No. 571 is Thomas Dyer's Report. Tucker objects to the
admission of this document on the ground Dyer is Tucker's expett, not the government's.
additionally, Tucker challenges the report as cumulative and containing hearsay. The United States
renews its objections set forth in its Reply to Tucker's Objections to the Witnesses.
RULING:

E.

SUSTAINED in accordance with the court's ruling above regarding
admission of expert reports.

Code ofFederal Regulations- United States' Exhibits Nos. 572 and 573

The United States' Exhibit No. 572 and 573 are copies of the Code of Federal Regulations
("C.F.R."), 29 C.F.R. § 1918.43(h) and 46 C.F.R. § 90.05, respectively. Tucker objects to the
admission of these two documents on relevance grounds.
The United States contends the C.F .R.s establish the standards applicable to issues
concerning alleged design defects of the vessel. The United States also notes the relevant C.F.R.s
may be judicially noticed by the coutt, without regard to admissibility.
RULINGS:

F.

SUSTAINED. Both parties may rely upon and argue all applicable law,
and it is unnecessary to have that law admitted as an exhibit.

United States' Exhibit Nos. 574-577- Deposition Testimony ofLay Witnesses

The United States' Exhibit Nos. 574-577 are the deposition testimony of certain enumerated
lay witnesses. Tucker objects to the admission of the enumerated deposition testimony on the
ground it is cumulative.
6 - ORDER: OBJECTIONS TO EXHIBITS

The United States explains the proposed deposition testimony is of Cascade's percipient
witness and were used in the govemment's examination of Tucker's expett, Douglas Wolff.
RULING:

G.

SUSTAINED in accordance with the court's ruling on Tucker's
objection to the admission of Wolff's deposition/video testimony. While
the United States is permitted to offer the proposed deposition/video
testimony of Wolff, it is not necessary for the court to receive as exhibits
the deposition testimony of the percipient witnesses relied upon by the
government during Wolff's cross examination.

United States Exhibit No. 578- Supplemental Report of Thomas Welford

The United States' Exhibit No. 578 is Thomas Weiford's supplemental report dated March
3, 2014. Tucker objects to the admission of this report on the ground the government failed to
provide him with a copy of the repot1. Further, Tucker contends the supplemental rep011 should be
excluded as untimely and, in any event, Tucker argues the report is hearsay and cumulative.
The United States explains that in his report September 20, 2013, Weiford noted the
minimum wage rate in Oregon would increase to $9.10/hour, beginning in January 2014; and
Washington would announce its new minimum wage rate by the end of2013. As this trial was
continued from the fall of2013, until the spring of2014, the increased minimum wage rates make
a slight difference in calculated losses. In the supplemental report, Weiford notes the new minimum
wage rate in Washington is now $9.32/hour. The government warrants the substantive analysis of
Weiford' s previous rep otis has not been altered.
RULING:

H

OVERRULED, although the United States is ordered to provide Tucker
a copy of the supplemental report.

United States Exhibit No. 579- Supplemental Report ofLaura Taylor

The Unites States' Exhibit No. 579 is Laura Taylor's supplemental report dated March 13,
2014. Tucker objects to the admission of this report on the ground the government failed to provide
7 - ORDER: OBJECTIONS TO EXHIBITS

him with a copy of the report. Further, Tucker contends the supplemental repmi should be excluded
as untimely and, in any event, Tucker argues the report is hearsay and cumulative.
The United States explains this supplemental report by economist, Laura Taylor, simply notes
a change to the minimum wage rate in Washington, as repotied by Weiford, and the effect of that
rate on calculations of lost wages. Once again the government warrants the substantive analysis of
Taylor's previous reports has not been altered.
RULING:

OVERRULED, although the United States is ordered to provide Tucker
a copy of the supplemental report.

IT IS SO ORDERED

~1J!11f

DATED thiVj-ttay of April2014

~
~~2~

Uniteld States Magistrate Judge

8 - ORDER: OBJECTIONS TO EXHIBITS