Carson v. Robotkay

1 The Honorable Marsha J. Pechman [6] 7 UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON 8 AT TACOMA [9] ROBERT CARSON, Case No. 3:18-cv-05858-MJP [10] Plaintiff, AGREED PRETRIAL ORDER [11] v. [12] UNITED STATES OF AMERICA, [13] Defendant. [14] 15 I. JURISDICTION 16 Jurisdiction in this matter is premised upon the Federal Tort Claims Act (“FTCA”), [17] 28 U.S.C. §§ 1346 (b) and 2679(b)(1). The United States has waived sovereign immunity for the 18 negligent or wrongful acts or omissions of any federal employee acting within the scope of 19 employment, under circumstances where the United States, if a private person, would be liable 20 to the plaintiff in accordance with the law of the place where the act or omission occurred. [21] 28 U.S.C. §§ 1346 (b). The parties agree that Washington state law substantively governs the 22 claim to be adjudicated at trial in this matter. 23 // 24 // 1 II. CLAIMS AND DEFENSES 2 Plaintiff will pursue the following claims for relief: 3 Monetary damages for the property damages to his car; monetary damages for medical 4 specials; and monetary damages for his general damages of past, present and future pain and 5 suffering, disability, loss of enjoyment of life. 6 The United States will pursue the following affirmative defenses/claims for relief: 7 1. Plaintiff’s injuries and damages were not proximately caused by the negligent or 8 wrongful act of an employee of the United States. Specifically, Plaintiff’s current lumbar and 9 cervical pain is caused by a pre-existing degenerative joint disease and ossification of posterior 10 longitudinal ligament (“OPLL”), unrelated to the motor vehicle collision, but symptomatic at the 11 time. 12 2. To the extent this Court finds that the current spinal pain is causally related to the 13 collision, Plaintiff has failed to mitigate his damages with respect to the same. Specifically, 14 Plaintiff has repeatedly declined both diagnostic and therapeutic treatment options targeted at 15 relieving his cervical and lumbar pain. Such declinations are unreasonable and have more likely 16 than not adversely affected his recovery. See Fox v. Evans, 127 Wash. App. 300, 306 (2005). 17 3. Plaintiff is not entitled to $2,220.01 for property damage to his 1993 Geo Metro 18 because the only repair estimate disclosed sets forth repairs beyond those caused by the subject 19 collision and, further, Plaintiff voluntarily salvaged the vehicle for parts in 2018. 20 4. Plaintiff’s total damages must be limited to no more than $164,964.44, the only 21 damage computation previously disclosed during discovery. See FRCP 26(a)(1)(A)(iii), 22 26(e)(1)(A), and 37(c)(1). 23 // 24 // 1 III. ADMITTED FACTS 2 1. Plaintiff was involved in a motor vehicle collision with a United States Postal 3 Service (“USPS”) employee on January 15, 2017, at approximately 1:11PM. 4 2. The collision occurred at the intersection of E. Washington Street and N. Rhodefer 5 Road in Sequim, Washington. 6 3. The USPS employee was executing a right-hand turn from a stop sign on N. 7 Rhodefer Road when he collided with Plaintiff. 8 4. Plaintiff was traveling east on E. Washington Street. 9 5. The USPS employee collided with Plaintiff’s rear passenger’s side door. 10 6. The USPS employee was traveling approximately 2-5 MPH. 11 7. Plaintiff was traveling approximately 30 MPH. 12 8. Both drivers declined medical treatment at the scene. 13 9. The United States admits that the employee failed to yield the right-of-way and 14 thus caused the collision, but disputes the nature and extent of Plaintiff’s damages. 15 IV. ISSUES OF LAW 16 The following issues of law must be determined by the Court: 17 1. Has Plaintiff proved by a preponderance of the evidence that he is entitled to the 18 full repair estimate of $2,220.01 for his 1993 Geo Metro? 19 2. Has Plaintiff proved by a preponderance of the evidence that his claimed past 20 medical expenses were reasonable, necessary, and related to the subject collision? 21 3. Has Plaintiff proved by a preponderance of the evidence that he requires future 22 medical care and that any such care is reasonable, necessary, and related to the subject collision? 23 // 24 // 1 4. Has Plaintiff proved by a preponderance of the evidence that he experienced pain, 2 disability, and suffering as a result of the collision and/or will with reasonable probability, 3 continue to experience pain, disability, and suffering in the future? 4 5. Has the United States proved by a preponderance of the evidence that Plaintiff 5 failed to mitigate his damages? 6 V. EXPERT WITNESSES 7 The following expert witnesses may be called by Plaintiff at trial: 8 Donna Moore, M.D. – Will Testify Medical Consulting Associates, PLLC 9 9226 Bay Shore Drive NW, Suite 230 Silverdale, WA 98383 10 Tel. (360) 692-6202 11 Dr. Moore is a Physical Medicine and Rehabilitation physician who conducted an 12 Independent Medical Examination on Plaintiff on October 22, 2018, at the request of Plaintiff’s 13 attorney, Greg S. Memovich. She will testify regarding Plaintiff’s medical specials and 14 Plaintiff’s treatment, injuries, pain, suffering, disabilities and possible future treatment, pain, 15 suffering, and disabilities. 16 The following expert witnesses may be called by the United States at trial: 17 Joshua Shatsky, M.D. – Will Testify WestSound Orthopaedics - Silverdale 18 4409 NW Anderson Hill Road Silverdale, WA 98383 19 Tel. (360) 698-6630 20 Dr. Shatsky is an orthopedic surgeon employed by WestSound Orthopaedics, and is 21 among Plaintiff’s treating physicians. Dr. Shatsky may be called by the United States to testify 22 as to his multiple examinations, observations, interactions, and Plaintiff’s prognosis as of January 23 2018, including recommendations made regarding future care and treatment, which Plaintiff [24] 1 declined. He may also be asked to interpret the MRI of Plaintiff’s spine from May 2017 and 2 testify regarding its significance from an orthopedic perspective. 3 Wilson Chang, M.D. – Will Testify Swedish Pain Services 4 601 Broadway, Suite 530 Seattle, WA 98122 5 Tel. (206) 386-2013 6 Dr. Chang is a Physical Medicine and Rehabilitation Specialist employed by Swedish 7 Pain Services, and was among Plaintiff’s treating physicians. Dr. Chang may be called by the 8 United States to testify as to his multiple examinations, observations, interactions, and Plaintiff’s 9 prognosis as of October 2021. Dr. Chang will discuss the various diagnostic and therapeutic 10 treatment options recommended but rejected by Plaintiff during his treatment of him. Dr. Chang 11 will discuss Plaintiff’s continued nonadherence to pain medications and belligerent behavior with 12 his staff that ultimately lead to Plaintiff’s dismissal from his services. 13 VI. OTHER WITNESSES 14 The following lay witnesses may be called by Plaintiff at trial: 15 1. Robert Carson c/o Greg Memovich, Counsel for Plaintiff [16] Will testify regarding liability and damages. [17] The following lay witnesses may be called by the United States at trial: [18] 2. Jason Robotkay – Possible Witness Only 19 c/o Erin K. Hoar, Assistant United States Attorney, Counsel for United States 20 Mr. Robotkay was the driver of the U.S. Postal Service vehicle that collided with Mr. 21 Carson’s vehicle on January 15, 2017. Mr. Robotkay may be called by the United States to rebut 22 any claims by Plaintiff regarding the mechanism of the collision and Plaintiff’s presentation at 23 the scene. 24 // 1 3. Detective Rick Larsen, Sequim Police Department – Possible Witness Only c/o Sequim Police Department, 152 W. Cedar Street, Sequim, WA 98382 [2] Detective Larsen was the investigating officer for the Sequim Police Department who [3] was dispatched to the collision on January 15, 2017. Detective Larsen may be called by the [4] United States to testify to his observations of the vehicles, the condition of the vehicles, and [5] Plaintiff’s presentation at the scene. [6] VII. EXHIBITS [7] Plaintiff may offer the following exhibits at trial: [8] No. Description Authenticity Admissibility Objection Admitted [9] 1 Police Report Stipulated Stipulated [10] Auto Body Damage FRE 602, 2 Disputed Disputed 11 Estimate 901, 802 Medical Expense Summary 3 Stipulated Disputed FRE 802 12 FRE 1006 InHealth Imaging 4 Stipulated Stipulated 13 05.01.2017 MRI Report 5 Jefferson Health Care Stipulated Stipulated 14 05.01.2017 Medical Bill Jefferson Health Care 15 6 Physical Therapy Bills Stipulated Stipulated 07.07.17 thru 08.11.2017 16 Peninsula Community Health 7 Services Bills 01.19.2017 thru Stipulated Stipulated 17 01.25.2018 Kitsap Physical Therapy 18 8 Medical Bills 01.26.2017 thru Stipulated Stipulated 04.06.2017 19 InHealth Imaging 05.01.2017 9 Stipulated Stipulated MRI Medical Bill 20 WestSound Orthopaedics 10 Medical Bills 06.21.2017 thru Stipulated Stipulated 21 01.29.2018 22 Swedish Medical Center 11 Medical Bills 11.19.2018 thru Stipulated Stipulated 23 current [24] 1 The United States may offer the following exhibits at trial, in addition to any exhibits 2 identified by Plaintiff: [3] No. Description Authenticity Admissibility Objection Admitted 4 Pertinent Portions of Jefferson Healthcare 5 200 Records Dated 4/4/14 Stipulated Stipulated (Carson_MedRecs_0004066 000413) Pertinent Portions of 7 Jefferson Healthcare 201 Records Dated 4/9/14 Stipulated Stipulated 8 (Carson_MedRecs_000425000431) 9 Pertinent Portions of Pulmonary & Sleep FRE 401, 10 202 Medicine Records Dated Stipulated Subject to 403, 602, 7/7/14 foundation [802] 11 (Carson_MedRecs_000300000303) 12 Pertinent Portions of Jefferson Healthcare 13 203 Hospital ER Records Dated Stipulated Stipulated 1/15/17 14 (Carson_MedRecs_000459000467) 15 Kitsap PT Records Dated 204 1/26/17 to 4/6/17 Stipulated Stipulated 16 (Carson_MedRecs_000085000093) 17 WestSound Orthopaedics Records Dated 6/21/17 to 18 205 1/29/18 Stipulated Stipulated (Carson_MedRecs_00000319 000024) Jefferson Community 20 Healthcare PT Discharge 206 Summary Dated 8/11/17 Stipulated Stipulated 21 (Carson_MedRecs_000603000605) 22 Olympic Medical Center PT Discharge Summary 23 207 Dated 5/9/18 Stipulated Stipulated (Carson_MedRecs_000757) [24] 1 No. Description Authenticity Admissibility Objection Admitted 2 Pertinent Portions of Peak Performance PT Records FRE 401, Subject to 3 208 Dated 10/15/18 to 1/16/19 Stipulated 403, 602, foundation (Carson_MedRecs_000123- 802 4 000159) Swedish Pain Management 5 Records Dated 11/19/18 209 Stipulated Stipulated (Carson_MedRecs_0003386 000344) Swedish Pain Management 7 Records Dated 3/13/19 210 Stipulated Stipulated (Carson_MedRecs_0003568 000361) Swedish Pain Management 9 Records Dated 4/15/19 211 Stipulated Stipulated (Carson_MedRecs_00037210 000377) Swedish Pain Management 11 Records Dated 5/15/19 212 Stipulated Stipulated (Carson_MedRecs_00037212 000377) Swedish Pain Management 13 Records Dated 6/11/19 213 Stipulated Stipulated (Carson_MedRecs_00088614 000890) Swedish Pain Management 15 Records Dated 7/17/19 214 Stipulated Stipulated (Carson_MedRecs_00086316 000866) Swedish Spine, Sports & 17 Musculoskeletal Medicine 215 Records Dated 9/4/19 Stipulated Stipulated 18 (Carson_MedRecs_001148001150) 19 Swedish Pain Management Records Dated 11/15/19 20 216 (Carson_MedRecs_000847- Stipulated Stipulated 000850) 21 Swedish Pain Management Records Dated 1/7/20 22 217 (Carson_MedRecs_000828- Stipulated Stipulated 000831) [24] 1 No. Description Authenticity Admissibility Objection Admitted 2 Swedish Pain Management Records Dated 4/6/20 218 Stipulated Stipulated 3 (Carson_MedRecs_000823000824) 4 Swedish Pain Management 219 Records Dated 10/28/20 Stipulated Stipulated 5 (Carson_MedRecs_000809) Sound Pain Alliance 6 Records Dated 12/10/20 220 Stipulated Stipulated (Carson_MedRecs_0011197 001122) Anesis Spine & Pain Care 8 Records Dated 2/18/21 221 Stipulated Stipulated (Carson_MedRecs_0011019 001104) Anesis Spine & Pain Care 10 Records Dated 3/22/21 222 Stipulated Stipulated (Carson_MedRecs_00109511 001099) 12 VIII. DEPOSITION TRANSCRIPTS 13 Drs. Moore and Chang gave perpetuation depositions, in part because of the COVID crisis 14 and uncertainties regarding live court proceedings. The parties prefer that Drs. Moore and Chang 15 testify live, via Zoom, rather then relying on their perpetuation depositions. However, Plaintiff 16 may seek admission of either or both transcripts in the event either witness is unavailable to 17 testify. The United States intends to subpoena Dr. Chang for live testimony and maintains that 18 deposition testimony should only be proffered in the event either witness is truly unavailable 19 within the meaning of Fed. R. Civ. P. 32(a)(4). 20 Plaintiff may use portions of Dr. Chang’s deposition transcripts to refresh his recollection 21 or for impeachment purposes. 22 The United States may offer portions of the deposition transcripts of Plaintiff and/or 23 Donna Moore, M.D., for impeachment purposes per Fed. R. Civ. P. 32(a)(2). Furthermore, the 24 United States may use the deposition of Dr. Chang to refresh his recollection. 1 ACTION BY THE COURT 2 (a) This case is schedule for trial without a jury on July 15, 2021, at 9:00AM. 3 (b) Trial briefs shall be submitted to the Court on or before July 12, 2021. 4 (c) Proposed Findings of Fact and Conclusions of Law must be submitted to the Court 5 on or before July 12, 2021. 6 (d) This order has been approved by the parties as evidenced by the signatures of their 7 counsel. This order shall control the subsequent course of the action unless modified 8 by subsequent order. This order shall not be amended except by order of the court 9 pursuant to agreement of the parties or to prevent manifest injustice. [10] 11 DATED this 30th day of June, 2021. [12] A [13] 14 Marsha J. Pechman United States Senior District Judge [16] APPROVED AS TO FORM [17] TESSA M. GORMAN 18 Acting United States Attorney [19] s/ Greg S. Memovich s/ Erin K. Hoar GREG S. MEMOVICH, WSBA #13588 ERIN K. HOAR, CA No. 311332 [20] Law Offices of Greg Memovich, PLLC Assistant United States Attorney 9301 Linder Way, Suite 201 Western District of Washington [21] Silverdale, WA 98383 United States Attorney’s Office Phone: (360) 692-1347 700 Stewart Street, Suite 5220 [22] Fax: (360) 692-3893 Seattle, Washington 98101 Email: memovichlaw@gmail.com Phone: (206) 553-7970 [23] Email: erin.hoar@usdoj.gov Attorney for Plaintiff [24] Attorneys for the United States