Somerlott v. McNeilus Truck and Manufacturing, Inc.

Filing 132

PRETRIAL ORDER signed by Judge Marsha J. Pechman. (PM)

Download PDF
Honorable Marsha J. Pechman 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 8 9 10 BENJAMIN SOMERLOTT, Plaintiff, 11 12 13 14 NO. 2:16-cv-00789-MJP PRETRIAL ORDER v. McNEILUS TRUCK AND MANUFACTURING, INC., Defendant. 15 16 17 18 19 Pursuant to LCR 16(i), Defendant McNeilus Truck and Manufacturing, Inc. (“MTM” or “Defendant”) and Plaintiff Benjamin Somerlott (“Somerlott” or “Plaintiff”) jointly offer the following Proposed Pre-Trial Order. I. JURISDICTION 20 21 22 23 24 25 Jurisdiction is vested in this court by virtue of: This Court has original jurisdiction under the provision of 28 U.S.C § 1332. Complete diversity of citizenship exists between the parties: (a) Plaintiff Benjamin Somerlott is a citizen of the State of Washington, U.S.A., (b) Defendant McNeilus Trucking and Manufacturing, Inc. is a corporation incorporated under the laws of Minnesota, with its PRETRIAL ORDER - 1 (2:16-cv-00789-MJP) 1 principal place of business in Dodge Center, Minnesota; Defendant is thus a citizen of a foreign 2 state. The amount in controversy exceeds $75,000.00. 3 4 This Court has personal jurisdiction over the Defendant because it conducted business in the State of Washington, both generally and with regard to the events in question, to create a 5 sufficient nexus between the Defendant’s forum contacts and Plaintiff’s cause of action to 6 7 create jurisdiction. 8 Venue is proper in the United States District Court, Western District of Washington, 9 pursuant to 28 U.S.C. § 1391(b)(2), because a substantial part of the events or omissions giving 10 rise to the claim occurred in this District. 11 The incident made the basis of this suit occurred in King County, WA. As such, 12 13 14 Intradistrict venue is proper in Seattle as the claim arose in King County. WAWD Civ. R. 3(d). II. CLAIMS AND DEFENSES 15 Plaintiff will pursue at trial the following claims: 16 Strict liability based upon defective design and defective marketing and warnings. 17 MTM intends to pursue the following affirmative defenses at trial: 18 FIRST AFFIRMATIVE DEFENSE 19 20 Plaintiff’s claims fail to state facts sufficient to constitute a cause of action against MTM. 21 22 23 24 25 SECOND AFFIRMATIVE DEFENSE Plaintiff’s injuries and damages were caused or contributed to by the negligence or other wrongful conduct of persons, firms, partnerships, corporations, municipalities, or entities other than MTM and that said negligence or other wrongful conduct comparatively reduces the percentage of negligence or other liability, if any, of MTM. PRETRIAL ORDER - 2 (2:16-cv-00789-MJP) 1 THIRD AFFIRMATIVE DEFENSE 2 Plaintiff’s injuries and damages were legally and proximately caused or contributed to 3 by the negligence, fault, assumption of risk, and other culpable conduct of Plaintiff, and that 4 the amount of damages, if any, that Plaintiff may recover against MTM must be diminished in 5 the proportion that such conduct contributed to the alleged injuries, losses or damages of 6 Plaintiff. 7 FORTH AFFIRMATIVE DEFENSE 8 Plaintiff’s injuries and damages were legally and proximately caused by, and arose out 9 of, risks of which Plaintiff had both knowledge and understanding and that Plaintiff voluntarily 10 assumed. 11 FIFTH AFFIRMATIVE DEFENSE 12 13 Plaintiff's injuries and damages were legally and proximately caused by, and arose out of, Plaintiff's primary assumption of the risk. 14 SIXTH AFFIRMATIVE DEFENSE 15 MTM is informed and believes and on that basis alleges that, if there is any 16 comparative fault attributed to individuals or entities other than MTM, then this percentage of 17 fault comparatively reduces the non-economic damages, if any, that Plaintiff can recover from 18 MTM. 19 SEVENTH AFFIRMATIVE DEFENSE 20 Plaintiff is precluded from proceeding against MTM by reason of his negligent or 21 otherwise wrongful failure to preserve or to cause others to preserve evidence relating to the 22 incident that forms the subject matter of this action, including but not limited to the personal 23 protective equipment Plaintiff was wearing on the date of the incident, to the prejudice of 24 MTM. 25 PRETRIAL ORDER - 3 (2:16-cv-00789-MJP) 1 EIGHTH AFFIRMATIVE DEFENSE 2 The subject McNeilus Side Loader Model 2644 commercial refuse vehicle was not in 3 the original condition at the time of Plaintiff’s subject incident as when it left the custody and 4 control of MTM. 5 NINTH AFFIRMATIVE DEFENSE 6 MTM is informed and believes and on that basis alleges that adequate warnings and 7 instructions concerning the Truck were provided to persons in the chain of distribution, and, 8 therefore, any duty to warn was discharged. 9 10 11 TENTH AFFIRMATIVE DEFENSE Plaintiff's claims are barred because the subject McNeilus Side Loader Model 2644, as designed, manufactured, and sold complied with all applicable statutes, rules, and regulations. 12 III. ADMITTED FACTS 13 The following facts are admitted by the parties: 14 1. 15 16 involved was manufactured by the Defendant. 2. 17 18 The subject McNeilus Side Loader Model 2644 commercial refuse vehicle The subject McNeilus Side Loader Model 2644 commercial refuse vehicle was manufactured in 2008 on a 2009 Autocar chassis. 3. Defendant was aware of the risk of injury from the ejection of objects from the 19 hopper of the truck involved at the time that the McNeilus Side Loader Model 20 2644 commercial refuse vehicle was designed. 21 4. The Plaintiff knew that objects were ejected from the hopper before the injury. 22 5. The Plaintiff never read the operator’s manual for the McNeilus Side Loader 23 24 25 Model 2644 commercial refuse vehicle. 6. Plaintiff was injured on October 29, 2014 during the course of his employment as a residential recycling driver for Waste Management Resources, Inc. while PRETRIAL ORDER - 4 (2:16-cv-00789-MJP) 1 2 operating a McNeilus Side Loader Model 2644 commercial refuse vehicle. 7. 3 4 Model 2644 commercial refuse vehicle prior to October 29, 2014. 8. 5 6 9. 10. 11. Plaintiff returned to full-duty, full-time, as a residential recycling driver for Waste Management Resources, Inc. the week of January 17, 2016. 12. 13 14 Plaintiff’s flexor carpi ulnaris and ring finger flexor digitorum sublimis tendons were surgically repaired on October 30, 2014. 11 12 Plaintiff’s flexor carpi ulnaris and ring finger flexor digitorum sublimis tendons were injured on October 29, 2014. 9 10 Plaintiff was struck by pickle juice which had exited the hopper of the McNeilus Side Loader Model 2644 commercial refuse vehicle prior to October 29, 2014. 7 8 Plaintiff had experienced refuse exiting the hopper of the McNeilus Side Loader Plaintiff worked as a residential recycling driver for Waste Management Resources, Inc. on full-duty, full-time, until the week ending June 10, 2016. 13. Plaintiff voluntarily left his position as a residential recycling driver for Waste 15 Management Resources, Inc. and begin a new position as an assistant driller 16 with National EWP Inc. the week ending June 18, 2016. 17 14. 18 Plaintiff injured his right shoulder on August 8, 2016 while working as a Driller’s Assistant for National EWP Inc. 19 15. Plaintiff had surgery to his right shoulder on May 30, 2017. 20 16. Plaintiff is currently not working for National EWP INC. due to his August 8, 21 2016 right shoulder injury. 22 IV. ISSUES OF LAW 23 Plaintiff asserts the following issues of law to be determined by the Court: 24 Plaintiff’s Issue of Law 1: Whether any evidence of the L&I claim regarding the 25 Plaintiff’s wrist injury is admissible? PRETRIAL ORDER - 5 (2:16-cv-00789-MJP) 1 2 3 4 5 6 Plaintiff’s Issue of Law 2: Whether any evidence of L&I IMES regarding the Plaintiff’s wrist injury are admissible? Plaintiff’s Issue of Law 3: Whether Dr. Sun’s opinions based on his IME are admissible? Plaintiff’s Issue of Law 4: Whether any mention or any other information regarding any L&I claim regarding the Plaintiff’s shoulder injury will be allowed? 7 Plaintiff’s Issue of Law 5: Whether evidence regarding the Defendant’s affirmative 8 defenses of negligence of third parties, intervening superseding acts of third parties, 9 comparative negligence and assumption of the risk, improper use and maintenance and altered 10 11 12 13 14 15 16 17 18 19 20 condition and failure to mitigate are admissible? Plaintiff’s Issue of Law 6: Whether evidence of Defendant’s affirmative defense of negligence of third parties is admissible? Plaintiff’s Issue of Law 7: Whether evidence of Defendant’s affirmative defense of assumption of the risk is admissible? Plaintiff’s Issue of Law 8: Whether evidence of Defendant’s affirmative defense of spoliation is admissible? Plaintiff’s Issue of Law 9: Whether evidence of Defendant’s affirmative defense is admissible? Plaintiff’s Issue of Law 10: Whether evidence that the Defendant has no record of similar injuries is admissible? 21 MTM asserts the following issues of law to be determined by the Court: 22 MTM’s Issue of Law 1: Whether the jury should evaluate Plaintiff’s claim that the 23 McNeilus Side Loader Model 2644 commercial refuse vehicle was not reasonably safe as 24 designed using the risk-utility test only, and not the consumer expectation test. 25 PRETRIAL ORDER - 6 (2:16-cv-00789-MJP) 1 MTM’s Issue of Law 2: Whether the jury should evaluate Plaintiff’s claim that the 2 McNeilus Side Loader Model 2644 commercial refuse vehicle was not reasonably safe as a 3 result of inadequate warnings using the risk-utility test only, and not the consumer expectation 4 test. 5 MTM’s Issue of Law 3: Whether Plaintiff can prevail on his failure-to-warn claim 6 based on the theory that the severity of possible injury from objects ejected from the McNeilus 7 Side Loader Model 2644 commercial refuse vehicle’s hopper opening was not open and 8 obvious even though the risk of such ejection occurring was open and obvious. 9 10 MTM’s Issue of Law 4: Does a manufacturer’s liability for failure to warn extend beyond warning of the risk to include failing to warn for all possible outcomes of a risk. 11 12 13 V. EXPERT WITNESSES The names of the expert witnesses to be used by each party at the time of trial and the issues upon which each will testify are: 14 On behalf of Plaintiff: 15 Witness Name 16 17 18 19 20 21 22 23 Steve Tipton The University of Tulsa Stephenson Hall 2060 Tulsa, OK 74104 Ted Becker 11627 Airport Road Suite H Everett, WA 98204 John Cary 601 SW 152nd St Burien, WA 98166 Elizabeth Joneschild Seattle Hand Surgery Group 600 Broadway, # 440 Seattle, WA 98122 Description of Anticipated Testimony On liability per his report and deposition Testifying? On his FCE testing, per his deposition and report Will Testify On loss of earning capacity per his deposition and report Will Testify To causation and damages per her records and deposition Will Testify (may testify by deposition) 24 25 Will Testify On behalf of Defendant: Witness Name PRETRIAL ORDER - 7 (2:16-cv-00789-MJP) Description of Anticipated Testimony Testifying? 1 2 3 Steven D. Sun, M.D. • Advanced Medical Group – 700 NW Gilman Blvd., #147, • Issaquah, WA 98027 4 5 6 7 8 Stephen P. Andrew, • P.E. Exponent, Inc. – 149 • Commonwealth Drive, Menlo Park, CA 94025 9 • 10 11 12 • 13 14 • 15 • 16 17 18 19 • 20 21 22 23 24 25 William Partin • Washington Federal Center • 400 108th Avenue N.E., Suite 615 Bellevue, WA 98004 Aleksandar Curcin, • M.D. MES Solutions PRETRIAL ORDER - 8 (2:16-cv-00789-MJP) The nature and extent, history, and prognosis of Plaintiff’s October 29, 2014 injury to his right wrist. His findings and opinions regarding Plaintiff’s medical status and prognosis; Plaintiff’s 9/26/17 Independent Medical Exam, including overall restrictions and limitations. The standards of the commercial refuse vehicle industry. The reasonableness and adequacy of the subject commercial refuse vehicle’s design, including the hopper and compaction system and the design intention for this and other refuse vehicles. Risk analysis regarding the design of the subject commercial refuse vehicle, including industry data and injury reporting and related risk analysis of alternate designs. Compliance with industry standards and application of industry standards relative to employees for PPE. The reasonableness and adequacy of suggested alternative designs. The open and obvious nature of the claimed risk of refuse ejection, the lack of need for a warning regarding known risks or instructions especially when viewed in the risk hierarchy and against injury and incident data. Rebuttal testimony to the opinions offered by Plaintiff’s retained expert Steven M. Tipton. Will Testify Will Testify Plaintiff’s economic damages at the time of Will Testify incident and into the future, or lack thereof. Rebuttal to the economic opinions offered by Plaintiff’s retained expert John R. Cary. His findings and opinions arising from the Possible 12/5/15 and 8/10/16 independent medical Witness 1 2 3 4 5 6 7 8 9 505 S. 336th Street, Suite 150 Federal Way, WA 98003 Roman L. Kutsy, • M.D. MES Solutions 505 S. 336th Street, Suite 150 Federal Way, WA 98003 Stephen Forgas • c/o counsel for Defendant 10 11 12 13 14 15 16 William Skilling 4311 – 55th Ave. NE Seattle, WA 98105 17 • • 18 19 exams of Plaintiff requested by Gallagher Bassett in connection with Plaintiff’s worker’s compensation claim related to his October 29, 2014 injury underlying this action. His findings and opinions arising from the 12/5/15 independent medical exam of Plaintiff requested by Gallagher Bassett in connection with Plaintiff’s worker’s compensation claim related to his October 29, 2014 injury underlying this action. Only (may testify by deposition.) Possible Witness Only The reasonableness of the design and manufacture of the subject truck including compliance with applicable standards, warnings and instructions for the subject truck, the field performance and claims and injury history for the truck relative to the claimed risks, the risk analysis and hierarchy of risk related to the design of and warnings for the truck, the industry understanding regarding refuse ejection and risk and other related topics. Rebuttal to the vocational assessment offered by Plaintiff’s retained experts John R. Cary and Theodore Becker. Opinions and conclusions reached regarding the vocational rehabilitation needs of Plaintiff, his ability to work, and the effect of injuries on vocational options. Will Testify Will Testify 20 21 22 23 24 25 St. Elmo Newton, III, • M.D. 3005 112th Avenue NE, Suite 200, Bellevue, WA 98004 Zachary Hall, PT, • DPT South Sound PRETRIAL ORDER - 9 (2:16-cv-00789-MJP) Plaintiff’s claimed injuries, medical treatment, Possible and assessment of limitations and restrictions. Witness Only Plaintiff’s right shoulder injury, its Possible corresponding medical treatment, and Witness assessment of limitations and restrictions Only resulting therefrom. 1 2 3 4 5 6 7 Physical & Hand • Therapy 5210 Corporate Ctr. Ct. SE, Ste. D Lacey, WA 98503 Elizabeth Joneschild, • M.D. Seattle Hand 600 Broadway #440 Seattle, WA 98122 10 11 12 13 The following lay witnesses expected to be used by each party at the time of trial and the general nature of the testimony of each are: On behalf of Plaintiff: Witness Name Benjamin Sommerlott, Plaintiff • 14 15 Plaintiff’s claimed injuries, medical treatment, Possible and assessment of limitations and restrictions. Witness Only VI. OTHER WITNESSES 8 9 Plaintiff’s report of injury. Description of Anticipated Testimony Testifying? Knowledge of the incident, his guard and use Will of his guard, and damages, will testify per his Testify deposition and discovery responses Jennifer Sommerlott, • wife of Plaintiff Knowledge of damages; will testify per her Will Testify deposition Justin Austin • 253.691.9465 25519 86th Ave East Graham, WA 98338 Knowledge of damages, Plaintiff’s reputation for hard work and honesty; customary loading of manual side loaders by Waste Management drivers in Seattle, that the risk is open and obvious Knowledge of damages and Plaintiff’s reputation for hard work and honesty 16 17 18 19 20 21 22 23 24 25 Drew Beeching • 509.928.0758 4505 N. Evergreen Rd. Spokane, WA 99216 Loren Denison, • 406.579.8722 411W. Commercial Ave. Anaconda MT 59711 Zac McGovern, • PRETRIAL ORDER - 10 (2:16-cv-00789-MJP) Will Testify Possible Witness Only Knowledge of damages and Plaintiff’s Will Testify reputation for hard work and honesty Knowledge of damages and Plaintiff’s Possible 1 2 3 4 5 6 7 8 9 10 11 12 13 509.435.1433, 19221 E. Buckeye Ave,#11 Spokane Valley, WA 99027 Ricky Pen 206.915.0543 295 Aladdin Rd Colville WA 99124, Travis Ries, 509.251.3912, 2922 N. Meyers Rd. Otis Orchards, WA 99027 Colin Maxson, 360.393.0125, 820 E. 9th Ave. Spokane, WA 99202 Toby Crane, 503.936.8618, 1500 SW Pleasant View Dr. Apt. #R140 Gresham, OR 97080 Steve Forgas, c/o Counsel for Defendant. reputation for hard work and honesty Witness Only • Knowledge of damages and Plaintiff’s Possible Witness reputation for hard work and honesty Only • Knowledge of damages and Plaintiff’s Possible Witness reputation for hard work and honesty Only • Knowledge of damages and Plaintiff’s Will Testify reputation for hard work and honesty • Knowledge of damages and Plaintiff’s Possible Witness reputation for hard work and honesty Only • Knowledge of design, manufacture and Will marketing of the garbage truck per his Testify deposition 14 15 16 17 18 19 20 21 22 Kimberly Adair and • other unknown employees of Gallagher Bassett Services Inc. 4000 Kruse Way Place Lake Oswego, OR 97035 Knowledge of the L&I claim related to the Possible injury made the basis of this suit and Witness Only subrogation Alex Lemeshev • 720 4th Avenue, Suite 400 Kirkland, WA 98033 Regarding his knowledge of the injury, Will training, proper operation of the truck, how Testify the truck was used, that the risk at issue is not open and obvious, knowledge of the risk of ejection of objects form McNeilus manual side loaders and the customary method of loading manual side loaders by Waste Management employees in Seattle and other matters per his deposition Per his deposition, that the risk was not open Will 23 24 25 Casey Desmond • 720 4th Avenue, PRETRIAL ORDER - 11 (2:16-cv-00789-MJP) 1 Suite 400 Kirkland, WA 98033 Testify • and obvious, knowledge of the risk of ejection of objects form McNeilus manual side loaders and the customary method of loading manual side loaders by Waste Management employees in Seattle and other matters per his deposition Regarding training, proper operation of the truck, how the truck was used, that the risk at issue is not open and obvious, knowledge of the risk of ejection of objects form McNeilus manual side loaders and the customary method of loading manual side loaders by Waste Management employees in Seattle and other matters per his deposition Possible Witness Only • Possible Witness Only Possible Witness Only • Possible Witness Only Possible Witness Only • Possible Witness Only Possible Witness Only • Possible Witness Only Possible Witness Only Chuck Davis • 720 4th Avenue, Suite 400 Kirkland, WA 98033 425-698-8917 Possible Witness Only Possible Witness Only 2 3 4 5 6 Gary Ginter • 720 4th Avenue, Suite 400 Kirkland, WA 98033 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 Troy Baxter 720 4th Avenue, Suite 400 Kirkland, WA 98033 Travis Helms 720 4th Avenue, Suite 400 Kirkland, WA 98033 Erik Navarro 720 4th Avenue, Suite 400 Kirkland, WA 98033 Brent Bliven 720 4th Avenue, Suite 400 Kirkland, WA 98033 Shawn Harris 720 4th Avenue, Suite 400 Kirkland, WA 98033 Will Testify Possible Witness Only 22 On behalf of Defendant: 23 24 25 Witness Name Plaintiff Benjamin • Somerlott PRETRIAL ORDER - 12 (2:16-cv-00789-MJP) Description of Anticipated Testimony Testifying? Details concerning the subject incident and Will alleged injuries and damages claimed as a Testify result of the incident. 1 /// 2 3 4 5 6 7 Jerry Ginter • c/o counsel for Waste Management –Eric • Gillett 901 5th Ave., Ste 3400 Seattle, WA 98164 • 8 9 • 10 11 • 12 13 • 14 15 16 17 18 Casey Desmond • 1520 Sturgis Avenue South, Unit B, Seattle, • WA 98144 19 20 21 22 23 Alex Lemeshev • 4674 Court Q Tacoma, WA 98404- • 4532 • 24 25 PRETRIAL ORDER - 13 (2:16-cv-00789-MJP) Prior incidents and injuries related to commercial refuse side-loader vehicles. Waste Management’s knowledge of the possibility of refuse ejection from the side loaders during compaction. Training provided by Waste Management to refuse workers, including Plaintiff, generally and in regard to open and obvious hazards including refuse ejection. Whether Plaintiff was given training and what measures he and others similarly situated were told to undertake in order to address hazards. Waste Management’s position regarding training and providing manufacturer operator’s manuals to refuse workers. Waste Management’s position regarding Proper Protective Equipment provided to its employees. Plaintiff’s overall performance, safety record, and responsiveness to safety issues. Training Plaintiff received and discussions regarding precautions, if any, taken with respect to the open and obvious hazard of refuse exiting the hopper during compaction. Will Testify (may testify by deposition) Possible Witness Only (may testify by deposition) Knowledge of incident and Plaintiff’s Possible Witness damages. Knowledge and utilization of McNeilus Only manual side loaders. Knowledge of hazard of refuse ejection, (may positioning of operators and lack of testify by deposition) retraining in response to incident. /// 1 2 3 4 • John Kellander c/o counsel Defendant for 5 • 6 • • 7 8 • 9 Design and manufacture of 2008 McNeilus Possible Model MSL 2644 truck, including risk Witness assessments, scientific analysis, and field Only performance reviews. Warnings, instructions, training, reported incident history regarding side loader vehicles. Industry standards applicable to side loaders. Industry hazard recognition regarding refuse ejection. Design and risk/hazard analysis considerations regarding alternative designs. 10 11 VII. EXHIBITS A. PLAINTIFF’S EXHIBIT LIST 12 13 Ex. No. Document Admissibility Stipulated. 14 15 Authenticity Stipulated; Admissibility Disputed Authenticity and Admissibility Disputed 1. Wrist photos 2. Photo of model truck 1 X 3. Photo of model truck 2 X 4. Photo of model truck 3 X 5. Photo of model truck 4 X X 16 17 18 19 20 21 22 23 24 25 PRETRIAL ORDER - 14 (2:16-cv-00789-MJP) 1 Ex. No. Document Admissibility Stipulated. 6. Photo of model truck 5 Authenticity and Admissibility Disputed X 7. Photo of model truck 6 X 8. Photo of model truck 7 X 9. Photo of model truck 8 X 10. Photo of model truck 9 X 11. Green Plaintiff’s guard photo X 12. Report of injury X 13. National EWP paystubs X 14. Green Plaintiff’s guard photo X 15. Orange Plaintiff’s guard photo X 2 3 Authenticity Stipulated; Admissibility Disputed 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 PRETRIAL ORDER - 15 (2:16-cv-00789-MJP) 1 Ex. No. Document Admissibility Stipulated. 2 3 16. Orange Plaintiff’s guard removed photo X 17. Orange Plaintiff’s guard multiple photo X 18. Orange Plaintiff’s guard photo X 19. Plaintiff’s guard patent drawings 20. Photo of Subject truck front X 21. Photo of Subject truck closed hopper door X 22. Photo of Subject truck cab controls closed door X 23. Photo of Subject truck hopper controls cab closed door X 24. Photo of Subject truck hopper controls open door X 25. Video of packer and tipper insp EHM 4 5 Authenticity Stipulated; Admissibility Disputed 6 7 8 9 10 X 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 PRETRIAL ORDER - 16 (2:16-cv-00789-MJP) X Authenticity and Admissibility Disputed 1 Ex. No. Document Admissibility Stipulated. 2 3 26. Photo of Subject truck hopper trash closeup 27. Photo of Subject truck hopper controls X 28. Photo of Subject truck hopper warning pinch points X 29. Photo of Subject truck hopper warning punch points left X 30. Various Photos of model trucks and guards Plaintiff 31. Photo of Subject truck shelf X 32. Photo of Subject controls X 33. Waste Management paystubs X 34. Life tables 35. Kouri patent Authenticity and Admissibility Disputed X 4 5 Authenticity Stipulated; Admissibility Disputed 6 7 8 9 10 11 12 13 X 14 15 16 17 18 19 20 21 22 X 23 24 25 PRETRIAL ORDER - 17 (2:16-cv-00789-MJP) X 1 Ex. No. Document Admissibility Stipulated. 2 3 36. Occupational health records 37. Plaintiff’s out of pocket expense documents 38. MTM 1-18 att to initial disclosures sales X 39. MTM 00019-170 2011 MMA Operator’s Manual X 40. MTM 00173 199x AMSL Side Loader ManualAutomated brochure X 41. MTM 00177 1996 MSL Side Loader Manual brochure X 42. MTM 00179 2000 MSL 2 brochure X 43. MTM 00185 2012 McNeilus Refuse brochure X 44. MTM 00209 ANSI Z245.1-1999 X 45. MTM 001667 2007 Street Force M MA Operator’s Manual X 4 5 6 X 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Authenticity Stipulated; Admissibility Disputed PRETRIAL ORDER - 18 (2:16-cv-00789-MJP) Authenticity and Admissibility Disputed X 1 Ex. No. Document Admissibility Stipulated. 2 3 46. MTM 002045 Warranty and Pre-sale service file 47. MTM 002071 Service Pre-Invoice file 48. MTM 002085 WM Seattle, WA quote and sales documents X 49. MTM 002137 Final Inspection documents X 50. MTM 002215 Manufacturing Special Order Detail X 51. MTM 002221 Ontario Standard X 52. MTM 002347 Operator’s Manual Side Loader Model 1 X 53. MTM 002540 – 2556 – NWRA Waste Collection Safety Guide X 54. MTM 2557 – 2560 SSP Cart Tipper Brochure X 55. MTM 2561-2628 127 Cart tipper parts service manual X 4 5 Authenticity Stipulated; Admissibility Disputed X 6 X 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 PRETRIAL ORDER - 19 (2:16-cv-00789-MJP) Authenticity and Admissibility Disputed 1 Ex. No. Document Admissibility Stipulated. 2 3 56. MTM 2629 Cart tipper schematic X 57. MTM 2630 Cart tipper schematic X 58. MTM 2632-2635 131 – CDC – NIOSH Solid Waste Industry Fact Sheet X 59. MTM 2647-2713 ANSI B11.19-2003 R2009 X 60. MTM 2714-2774 17ANSI Z245.1 X 61. Photo of Subject truck sill SA mt X 62. Photo of Subject truck controls SA mt X 63. Photo of Subject truck sill SA mt X 64. Photo of Subject truck sill guard SA mt X 65. Photo of Subject truck hopper SA X 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 PRETRIAL ORDER - 20 (2:16-cv-00789-MJP) Authenticity Stipulated; Admissibility Disputed Authenticity and Admissibility Disputed 1 Ex. No. Document Admissibility Stipulated. 2 3 66. Photo of Subject truck hopper 2 SA X 67. Photo of Subject truck controls SA mt X 68. Photo of Subject truck controls 2 SA mt X 69. Photo of Subject truck driver side SA X 70. Photo of Subject truck driver side cover SA X 71. Photo of Subject truck driver side view SA X 72. Photo of Subject truck driver side cover SA mt X 73. Photo of Subject truck driver side sill SA mt X 74. Photo of Subject truck driver side cover 2 SA X 75. Photo of Subject truck driver side cab hopper SA X 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 PRETRIAL ORDER - 21 (2:16-cv-00789-MJP) Authenticity Stipulated; Admissibility Disputed Authenticity and Admissibility Disputed 1 Ex. No. Document Admissibility Stipulated. 76. MTM 2949-2953 Andrew Inspection notes measurements X 77. MTM 2993 WHITE TRUCK HOPPER IMG_7534 X 78. MTM002998 – CN 10084 Refuse ma wm Canada 2006 op and estop required Andrew insp video IMG_3158 X 2 3 4 5 6 Authenticity Stipulated; Admissibility Disputed Authenticity and Admissibility Disputed 7 8 9 10 79. X 11 12 80. New Brunswick SafeWaste Collection Workers Guide s1 81. Video of 20 Gallon Carts with A McNeilus AMSL X 82. Video of 1989 WhiteGmc Amrep MSL – ‘The Rolls Royce” X 83. Video of Able Body Sales MSL & Old Style Amrep MSL X 84. Video of Amrep MSL’s of Portland Oregon X 85. Video of CCC Amrep MSL with Recycle Bucket – YouTube X 13 X 14 15 16 17 18 19 20 21 22 23 24 25 PRETRIAL ORDER - 22 (2:16-cv-00789-MJP) 1 Ex. No. Document Admissibility Stipulated. 2 3 Authenticity and Admissibility Disputed X 86. Video of Classic WhiteGMC Amrep Side Loader, CR&R 87. Video of Old Carts on an MSL Part 1 – Copy X 88. Video of Republic MSL Action X 89. Video of Republic Services Labrie Freightliner Mini MSL’s X 90. Video of Side-Loading Garbage Truck McNeilus X 91. Video of WXLL CNG McNeilus MSL X 92. Photo of Shred-tec shredder truck X 93. Photo of whitegmc amrep side loader X 94. Photo of amrep msl q X 95. Becker Benjamin Somerlott Pictures 4 5 Authenticity Stipulated; Admissibility Disputed 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 PRETRIAL ORDER - 23 (2:16-cv-00789-MJP) X 1 Ex. No. Document Admissibility Stipulated. 2 3 96. Becker Benjamin Somerlott Graphs 97. Cary wastewater documents 98. Photo of exemplar glove X 99. Photo of Plaintiff wearing exemplar glove X 100. 2011 Tax Return R X 101. 2012 Tax Return R X 102. 2013 Tax Return R X 103. 2014 Tax Return R X 104. 2015 Tax Return R X 105. 2016 Tax Return R X 4 5 Authenticity Stipulated; Admissibility Disputed 6 X X 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 PRETRIAL ORDER - 24 (2:16-cv-00789-MJP) Authenticity and Admissibility Disputed 1 Ex. No. Document Admissibility Stipulated. 2 3 106. Meridian Physical Therapy 107. Peoples Injury Network X 108. Providence Records from D X 109. Seattle Hand Surgery X 110. South Sound Physical Therapy X 111. US Healthworks X 112. McNeilus Cost and Price info X 113. WM policy re carts X 114. WM job description X 115. Cary education costs documents Authenticity and Admissibility Disputed X 4 5 Authenticity Stipulated; Admissibility Disputed 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 PRETRIAL ORDER - 25 (2:16-cv-00789-MJP) X 1 Ex. No. Document Admissibility Stipulated. 2 3 Authenticity and Admissibility Disputed X 116. Cary household and yard replacement documents 117. Seattle hand Occu from WM excerpts 118. PINN from WM excerpts 119. Summary of Effort in meds X 120. Summary of Grip Strength in meds X 121. Summary of Pain in meds X 122. McNeilus Full-Line Brochure 123. MTM Answers to Pl First Admissions 124. MTM’s Resps to P RFPS, Set One X 125. Tipton Report X 4 5 Authenticity Stipulated; Admissibility Disputed 6 X 7 8 X 9 10 11 12 13 14 15 16 17 X 18 19 20 X (to the extent it was an admission) 21 22 23 24 25 PRETRIAL ORDER - 26 (2:16-cv-00789-MJP) 1 Ex. No. Document Admissibility Stipulated. 2 3 Authenticity Stipulated; Admissibility Disputed 126. Tipton CV 127. Cary Report 128. Cary CV 129. Cary addendum report X 130. Def answers to 1st Rogs X 131. Def Supplemental answers to 1st Rogs X 132. Def Consolidated answers to Rogs X 133. Def Further sup answers to 1st and 2nd Rogs X 134. Def answers to 2nd Rogs X 135. McNeilus side loader video X X 4 5 X 6 7 8 X 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 PRETRIAL ORDER - 27 (2:16-cv-00789-MJP) Authenticity and Admissibility Disputed Ex. No. 1 Document Admissibility Stipulated. 2 3 136. 4 Seattle Hand from WM excerpts Authenticity Stipulated; Admissibility Disputed Authenticity and Admissibility Disputed X 5 6 7 B. Ex. No. Defendant’s Proffered Exhibits Bates No. Document 8 9 200. 10 11 12 201. 13 14 202. 15 16 203. 17 18 204. 19 MTM’s Requests for Production of Documents (“RFPS”) and Interrogatories (“ROGS”), Set One, and Plaintiff’s Responses Thereto Plaintiff’s Second Amended Responses to MTM’s RFPS & ROGS, Set 1 Plaintiff’s paystubs, attached as Exhibit 1 to his Supplemental Responses to MTM’s RFPS, Set 1 MTM’s RFPS, Set 2 and Plaintiff’s Responses thereto Plaintiff’s Amended Responses to MTM’s RFPS, Set 2 Admissibil ity Stipulated Auth. stip., admiss. disp. X X X X X 20 21 205. 22 206. 23 24 207. 25 PRETRIAL ORDER - 28 (2:16-cv-00789-MJP) MTM’s RFPS, Set 3 and Plaintiff’s Responses thereto Plaintiff’s Amended Responses to MTM’s RFPS, Set 3 Plaintiff’s Amended Responses to MTM’s RFPS, Set 4 X X X Auth. & admiss. disp. 1 2 208. 209. 3 4 5 210. 6 211. 7 8 212. 9 10 213. 11 214. 12 13 215. 14 216. 15 16 217. 17 18 MTM 000175 000176 MTM 000181 000182 MTM 000421 000720 MTM 001816 MTM 001817 001820 MTM 002167 MTM 002168 002169 MTM 002170 002214 Plaintiff’s Third Amended Responses to MTM’s ROGS, Set 1 MTM’s Requests for Admissions (“RFAS”), Set 1 and Plaintiff’s Responses thereto 1994 Manual Side Loader Specifications 2001 Streetforce Manual/Automated Side Loader Brochure 2006 Street Force MA Service Manual Design Drawing 1106683 Assembly-Final 31 YD Design Drawing 1559982 Body, Sub WLDT 29/21YD M/MA FMVSS Certification Plate 19 X X X X X X X Pre-Delivery quality checklist X Manufacturing Work Order File Records from Seattle Radiology 218. X X X /// 20 21 219. 22 23 BL 226345, 348, 356-61, 489-490, & 523-524 Records from Boart Longyear X 24 /// 25 220. GB 1, 55- PRETRIAL ORDER - 29 (2:16-cv-00789-MJP) Records from Gallagher X 1 2 3 4 5 221. 6 7 8 9 222. 10 66, 68-71, 74-78, 8083, 89-98, 100-105, 107-116, 118-122, 124-134 WMRFP 269-298, 321-325, 375, 386388, 493, 498, 525526, 534536 MTM 002631 11 12 13 223. 224. 14 15 16 MTM 002636 002639 MTM 002640 002646 225. MTM 002775 002807 226. MTM 002808 002948 MTM 002949 002953 17 18 19 20 227. 21 22 23 228. 229. MTM 002961 230. MTM 24 Bassett Records from Waste Management 5 to Stay Alive: Safety Tips for Collection Employees, Solid Waste Association of North America Slow Down to Get Around, National Waste & Recycling Association Garbage Truck Safety, Begin with the Bin Program, National Waste & Recycling Association Safety First – Reducing Accidents & Injuries, Washington Refuse & Recycling Association Presentation Inspection photographs of the subject vehicle X X X X X X Inspection measurements of the subject vehicle X Inspection videotape of the subject vehicle; Refuse Products Brochure X Design Drawing 1424306 X X 25 PRETRIAL ORDER - 30 (2:16-cv-00789-MJP) 002983 002984 1 2 231. 3 232. 4 233. 5 6 234. 7 8 9 235. 236. 10 11 237. 12 238. 13 239. 14 15 16 240. 241. 17 18 242. 19 20 243. 21 22 244. 23 24 245. 25 246. PRETRIAL ORDER - 31 (2:16-cv-00789-MJP) 35D-Instr, Split Door, HPR Dr. Steven D. Sun’s Curriculum Vitae Dr. Steven D. Sun’s Expert Report dated 7/20/17 Dr. Steven Sun’s independent medical examination report dated 10/11/17 Professional Resume for Stephen P. Andrew, P.E. Stephen P. Andrew’s expert report dated 7/17 Stephen P. Andrew’s expert rebuttal report dated 8/21/17 William E. Partin’s Curriculum Vitae William E. Partin’ expert report dated 7/20/17 William E. Partin’s expert rebuttal report dated 8/18/17 William B. Skilling’s Curriculum Vitae William B. Skilling’s expert rebuttal report dated 8/21/17 Deposition of Jerry Ginter – Rule 30(b)(6) Witness for Waste Management and all exhibits thereto Deposition of Stephen Forgas – Rule 30(b)(6) Witness for MTM and all exhibits thereto Deposition of Theodore Becker and all exhibits thereto Deposition of John R. Cary and all exhibits thereto Deposition of Steven Tipton and all exhibits X X X X X X X X X X X X X X X X 1 247. 2 thereto Deposition of Aleksandar Curcin, M.D. and all exhibits thereto X 3 4 5 248. 249. 6 7 8 250. 251. 9 10 252. 11 253. 12 13 254. 14 15 255. 16 17 256. 18 19 20 257. 21 22 23 24 258. 25 PRETRIAL ORDER - 32 (2:16-cv-00789-MJP) Deposition of Casey Desmond and all exhibits thereto Deposition of Elizabeth Joneschild, M.D. and all exhibits thereto Deposition of Aleksandr Lemeshev Deposition of Benjamin Somerlott and all exhibits thereto Deposition of Jennifer Somerlott “Disposing Household Hazardous Waste, Begin with the Bin Program” from the NWRA Rocky Mountain Medical Clinic Record (Single Page) Medical Records concerning Plaintiff from RET Physical Therapy Group Medical Evaluation of Mr. Somerlott performed by Dr. St. Elmo Newton III, M.D. and Dr. James Haynes, M.D., dated April 30, 2015 Medical Evaluation of Mr. Somerlott performed by Dr. Aleksandar Curcin, M.D. and Dr. Roman L. Kutsy, M.D., dated 12/5/15 and Addendum dated 12/23/15 /// Medical Evaluation of Mr. Somerlott performed by Dr. Ali Samii, M.D. and Dr. X X X X X X X X X X X 1 2 259. 3 4 5 260. 261. 6 262. 7 8 263. 9 264. 10 265. 11 266. 12 267. 13 268. 14 15 269. 16 270. 17 271. 18 19 272. 20 273. 21 22 MTM 001815 MTM 0018171820 MTM 002276 MTM 002277 MTM 002279 MTM 002280 MTM 002289 MTM 002290 MTM 002291 MTM 002296 MTM 002303 MTM 002320 2321 MTM 0029832984 PINN 000001 – 109 X X X X X X X X X X X X X Design Drawing 1424306 – Doors X Medical Records concerning Plaintiff from People’s Injury Network X /// 23 24 Aleksandar Curcin, M.D., dated 8/10/16 Addendum report prepared by Dr. Ali Samii, M.D., dated 10/26/16 Design Drawing 1107492 Mounting Body Design Drawing 1559982 – Body, Sub WLDT 2921YD MMA Design Drawing 1105810 – Scraper Design Drawing 1105850 – Packer Assist Design Drawing 1106606 – Gussett Design Drawing 1106614 – Guard Hopper Design Drawing – 1130027 – Wall Body Design Drawing 1130028 – Wall Body Design Drawing 1130029 – Roof Design Drawing 1149387 – Hopper Door Design Drawing 1182837 – Hopper Door Design Drawing 1456333 Floor 274. 25 275. MERIDIAN 000001 101 SS 000001 PRETRIAL ORDER - 33 (2:16-cv-00789-MJP) Medical Records concerning Plaintiff from Meridian Physical Therapy Medical Records X X – 74 1 2 276. 3 4 5 6 7 8 277. 9 10 11 12 13 278. 14 15 16 17 279. 18 19 20 280. 21 22 23 281. 24 25 PRETRIAL ORDER - 34 (2:16-cv-00789-MJP) concerning Plaintiff from South Sound Physical Therapy Exhibit 5 to the Deposition of Jerry Ginter – Rule 30(b)(6) Witness for Waste Management Entitled “MODULE 7A: Residential: Rear End, Automated Side Load, Manual Side Load, and Dual Drive Systems, Hopper Loading” Exhibit 6 to the Deposition of Jerry Ginter – Rule 30(b)(6) Witness for Waste Management, which is a page from “Chapter 15.0 Manual Side Loaders” from the “WM Operations and Safety Rules Book” Exhibit 8 to the Deposition of Jerry Ginter – Rule 30(b)(6) Witness for Waste Management entitled “Job Description” for the “Driver Residential Recycling” job title. Footnote 19 to Stephen Andrew Expert Report dated July 20, 2017 – OSHA Accident Search Results Screenshots Footnote 20 – Detail reports concerning OSHA Accident Nos. 202252078, 200371649, 202340485, and 648535 Attachment 1 to William Partin’s Expert Report dated July 20, 2017 – Summary of Plaintiff’s Economic Loss X X X X X X 1 282. 2 3 4 283. 5 6 7 8 284. 9 10 11 12 285. 13 14 15 286. 16 17 287. 18 19 20 21 Attachment 2 to William Partin’s Expert Report dated July 20, 2017 – Plaintiff’s Projected Earnings Loss Attachment 3 to William Partin’s Expert Report dated July 20, 2017 – Plaintiff’s Payroll Summary (Based on WM Payroll Records from 3/22/14 through 6/11/16) Attachment 4 to William Partin’s Expert Report dated July 20, 2017 – Plaintiff’s Payroll Summary (Based on National EWP, Inc. Payroll Records from 6/18/16 through 10/8/16) Attachment 5 to William Partin’s Expert Report dated July 20, 2017 – Plaintiff’s Historical Income Summary Attachment 6 to William Partin’s Expert Report dated July 20, 2017 – Plaintiff’s Work life Expectancy Attachment 1 to William Partin’s Rebuttal Expert Report dated August 18, 2017 – United States Historical Unemployment Rate for Males Over Age 25 with Some College, No Degree (2007-2016) X X X X X X 22 23 288. 24 25 PRETRIAL ORDER - 35 (2:16-cv-00789-MJP) Attachment 2 to William Partin’s Rebuttal Expert Report dated August 18, 2017 – Hourly Rates/Job Description – Maids and Housekeeping Cleaners, X Cleaners of Vehicles, and Food Preparation Workers Attachment 3 to William Partin’s Rebuttal Expert Report dated August 18, 2017 – Expectancy Data, The Dollar Value of a Day, 2015 – Table 229: National to Area Wage Adjustment Percentages, May 2015 Attachment 4 to William Partin’s Rebuttal Expert Report dated August 18, 2017 – Hourly Rates/Job Description – Landscaping and Grounds keeping Workers Attachment 5 to William Partin’s Rebuttal Expert Report dated August 18, 2017 – Washington State Civil Pattern Jury Instruction 34.02: Future Economic Damages – Present Cash Value Attachment 6 to William Partin’s Rebuttal Expert Report dated August 18, 2017 – Washington State Civil Pattern Jury Instruction 34.04 – Mortality Table – Limitation on Use Attachment 7: Life Expectancy Tables from the Washington State Office of the Insurance Commissioner Website 1 2 289. 3 4 5 6 290. 7 8 9 10 291. 11 12 13 14 15 292. 16 17 18 19 20 293. 21 22 X X X X X 23 VIII. DEPOSITIONS 24 Except for deposition testimony offered solely for impeachment, Plaintiff plans to offer 25 portions of deposition testimony of the following witnesses if they are not available to testify: PRETRIAL ORDER - 36 (2:16-cv-00789-MJP) 1 1) Elizabeth Joneschild, M.D.; 2 Except for deposition testimony offered solely for impeachment, MTM plans to offer 3 portions of deposition testimony of the following witnesses if they are not available to testify: 4 1) Aleksandar Curcin, M.D. 5 2) Casey Desmond 6 3) Aleksandr Lemeshev, M.D.; and 7 4) Jerry Ginter – Waste Management’s 30(b) (6). 8 Deposition transcripts with designations highlighted and objections noted in the 9 margins are concurrently filed herewith pursuant to LR 32(e). 10 This order has been approved by the parties as evidenced by the signatures of their 11 counsel. Tis order shall control the subsequent course of the action unless modified by a 12 subsequent order. This order shall not be amended except by order of the court pursuant to 13 agreement of the parties or to prevent manifest injustice. 14 Dated this 9th day of January, 2018 15 A 16 17 Marsha J. Pechman United States District Judge 18 19 FORM APPROVED 20 21 22 23 24 By: /s/ Edward H. Moore Edward H. Moore, Esq. 3600 15th Avenue West. Suite 300 Seattle, WA 98119 Phone: 206.826.8214 Fax: 206.826.8221 Emoore@ehmpc.com Attorney for Plaintiff 25 PRETRIAL ORDER - 37 (2:16-cv-00789-MJP) 1 2 3 4 5 FORM APPROVED By: /s/ Anne M. Loucks___________________ Anne M. Loucks, WSBA No. 32739 WILLIAMS, KASTNER & GIBBS PLLC Two Union Square 601 Union Street, Suite 4100 Seattle, WA 98101-2380 Phone: 206.628.6600 Fax: 206.628.6611 Email: aloucks@williamskastner.com 6 10 By: /s/ Elizabeth V. McNulty_______________ Elizabeth V. McNulty, CA Bar No. 192455, Admitted Pro Hac Vice TAYLOR ANDERSON LLP. 19100 Von Karman Avenue, Suite 820 Irvine, California 92612 Phone: 949.390.6500 Fax: 949.390.6510 Email: emcnulty@talawfirm.com 11 Attorneys for Defendant 7 8 9 12 13 14 15 16 17 18 19 20 21 22 23 24 25 PRETRIAL ORDER - 38 (2:16-cv-00789-MJP)

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.


Why Is My Information Online?