Tracy Yu-Santos v. Ford Motor Company et al, No. 1:2006cv01773 - Document 147 (E.D. Cal. 2010)
Court Description: TENTATIVE ORDER GRANTING Plaintiff's Motion To Amend The Pretrial Order 142 signed by Judge Oliver W. Wanger on 5/25/2010. (Gaumnitz, R)
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Tracy Yu-Santos v. Ford Motor Company et al Doc. 147 1 2 3 4 5 6 7 IN THE UNITED STATES DISTRICT COURT FOR THE 8 EASTERN DISTRICT OF CALIFORNIA 9 10 TRACY YU-SANTOS, 11 12 13 14 15 ) ) Plaintiff, ) v. ) ) TRW VEHICLE SAFETY SYSTEMS ) INC., ROBERT SANTOS and DOES 1) through 10, ) ) Defendants. ) ______________________________) 1:06-CV- 1773 OWW DLB TENTATIVE ORDER GRANTING PLAINTIFF’S MOTION TO AMEND THE PRE-TRIAL ORDER (Document No. 142 ) 16 17 18 On May 24, 2010, plaintiff Tracy Yu-Santos (“Plaintiff”) 19 filed a motion to amend the March 9, 2010 pre-trial order (“Pre- 20 Trial Order”) based on Christopher Miranda’s (“Miranda”)1 new 21 sworn deposition testimony that Keilan Santos (“Keilan”) was 22 seated in the driver’s-side (left) rear seat. 23 Order provides that the action is proceeding on manufacturing 24 defect (negligence) and failure to warn as to the right front 25 seat belt and right rear seat belt claims. 26 amend the Pre-Trial Order to reflect that the action is The Pre-Trial Plaintiff seeks to 27 28 1 Miranda was deposed on May 19, 2010. Dockets.Justia.com 1 proceeding on a negligent manufacturing defect and failure to 2 warn as to the right rear, right front, and left rear seat belts, 3 and that the parties dispute whether Keilan was seated in the 4 left rear or right rear seating positions. 5 stated below, Plaintiff’s motion will be tentatively granted.2 6 For the reasons PLAINTIFF’S MOTION 7 Plaintiff’s Argument 8 Plaintiff argues that she will be manifestly prejudiced if 9 the Pre-Trial Order is not amended to conform to the newly 10 obtained deposition testimony of Miranda, which has created a 11 disputed fact as to whether Keilan was seated in the right rear 12 or left rear seats. 13 suffer prejudice or surprise if the order is amended for three 14 reasons: (1) Defendant had knowledge of Miranda’s statement to 15 his insurance company that Keilan was seated in the left rear 16 seat; (2) Defendant was aware of Plaintiff’s expert’s position 17 that the left rear seat belt contained a webbing manufacturing 18 defect; and (3) Defendant’s experts had ample opportunity to 19 inspect the left rear belt and offer an opinion. 20 Plaintiff argues that Defendant will not Plaintiff asserts that she limited her claims to a defect 21 in the right rear seat belt based on the evidence available to 22 her at the time of the Pre-Trial Order. 23 she was aware of Miranda’s statement to his insurance company 24 that Keilan was seated in the left rear seat and sought to Plaintiff contends that 25 2 26 27 28 Plaintiff’s motion will be granted tentatively in light of Defendant’s notice of intent to file a formal response to Plaintiff’s motion. However, the Defendant did submit an email to the court and Plaintiff’s counsel, which identified the reasons why Plaintiff’s motion should be denied. This email is discussed more fully in the Defendant’s Opposition section. 2 1 resolve the conflict between Miranda’s statement, and the Traffic 2 Collision Report, and Officer Tucker’s deposition testimony, by 3 attempting to depose Miranda on multiple occasions. 4 was not able to locate Miranda until May 3, 2010, when Miranda 5 contacted Plaintiff’s counsel, and informed counsel that he would 6 cooperate in submitting to a deposition and testifying at trial. Plaintiff 7 Defendant’s Opposition 8 On May 24, 2010, Defendant TRW, (“Defendant”) submitted an 9 email to the court and to Plaintiff’s counsel and represented 10 that it would not be able to proceed to trial on June 2, 2010, 11 because they were not prepared to defend against Plaintiff’s 12 theory that Keilan may have been seated in the left rear seat. 13 Defendant argues that it would be unfairly prejudiced and would 14 need to re-inspect the vehicle, conduct additional exemplar 15 testing, conduct further surrogate studies, prepare additional 16 demonstrative exhibits, and re-depose Plaintiff’s experts. 17 Legal Standard 18 Federal Rule of Civil Procedure 16(e) mandates that the 19 pretrial order “shall control the subsequent course of the action 20 . . . [and] shall be modified only to prevent manifest 21 injustice.” 22 however, that a pretrial order is a legal “strait-jacket” that 23 unwaveringly binds the parties and the court, rather, the court 24 retains a “certain amount of latitude to deviate from a pre-trial 25 order,” Manley v. AmBase Corp., 337 F.3d 237, 249 (2d Cir. 2003); 26 see also Castlegate, Inc. v. National Tea Co., 34 F.R.D. 221, 226 27 (D. Col. 1963), so as to prevent manifest injustice. 28 Fed. R. Civ. Pro. 16(e). 3 This does not mean, See Fed. R. 1 Civ. Pro. 16(e). 2 trial order has the burden of showing that an amendment is 3 necessary to prevent manifest injustice. 4 F.3d 1015, 1020 (9th Cir. 2005); Byrd v. Guess, 137 F.3d 1126, 5 1132 (9th Cir. 1998). 6 “manifest injustice” that warrants amendment, courts consider 7 four factors: (1) the degree of prejudice or surprise to the 8 [non-moving party] if the order is modified; (2) the ability of 9 the [non-moving party] to cure the prejudice; (3) any impact of 10 modification on the orderly and efficient conduct of the trial; 11 and (4) any willfulness or bad faith by the party seeking 12 modification. 13 1131. The party moving for a modification of a pre- Galdamez v. Potter, 415 In evaluating whether a party has shown Galdamez, 415 F.3d at 1020; Byrd, 137 F.3d at 14 Discussion 15 Considering the factors identified in Galdamez and Byrd 16 there is good cause for modification of the Pre-Trial Order to 17 prevent manifest injustice on the condition that Plaintiff make 18 her experts immediately available for re-deposition on the 19 limited issues of the left rear seatbelt. 20 to Defendant does not exist as Plaintiff pointed out, Defendant 21 was aware of Miranda’s prior statement at the time of the 22 accident to an insurance investigator and because Plaintiff 23 served Defendant with supplemental discovery and produced the 24 statement to Defendant on February 19, 2008. 25 for over two years that Miranda, the driver and sole survivor of 26 the accident has given conflicting statements whether Keilan was 27 in the right rear or left rear seat. 28 4 Prejudice or surprise Defendant has known Plaintiff has attempted to 1 locate Miranda for purposes of deposing him. 2 at page 19. 3 on their trial witness list and mutually agreed to inform the 4 other if they located Miranda prior to trial. 5 Defendant was free to devote the same efforts and resources to 6 locate Miranda and there is no showing of a lack of diligence on 7 Plaintiff’s part. 8 9 See Pre-Trial Order In fact, Plaintiff and Defendant both listed Miranda Id. at page 19. Defendant has actually known that Plaintiff’s experts opined that the left rear seat belt contained a webbing manufacturing 10 defect, similar to the right rear seat belt defect since 11 Plaintiff produced her seat belt expert’s Rule 26 report on March 12 25, 2008. 13 was at issue in this case. 14 attempted to narrow the issues at pretrial, approximately one 15 month ago, this is eminently curable. 16 experts immediately available for re-deposition, Defendants 17 experts shall have immediate access to inspect the left rear seat 18 belt,seat, and assembly.3 19 potential prejudice. 20 allowing Plaintiff to amend is minimal if Plaintiff makes her 21 experts immediately available for re-deposition. 22 not present evidence until conclusion of Plaintiff’s case. 23 Defendant was on actual notice that the left rear seat To the extent that the parties Plaintiff shall make her This opportunity will cure any The impact on the conduct of trial from There is no willfulness or bad faith. Defendant will Plaintiff has 24 25 26 27 28 3 On May 20, 2010, Plaintiff submitted a letter to Defense counsel and indicated that Plaintiff is willing to allow Defendant’s experts to inspect the left rear seat belt assembly provided they submit supplemental expert reports detailing their opinions regarding the seat belt assembly. 5 1 represented that she limited her defect claims to the right rear 2 seat belt based on the evidence available to her at the time of 3 the Pretrial Order. 4 efforts to locate Miranda but was not able to locate him until 5 May 3, 2010. 6 Defendant. 7 Miranda’s prior statements had placed Keilan in both seats. 8 Defendant also knew that Plaintiff’s seat belt expert looked at 9 both left and right rear seats. 10 Plaintiff represents that she made diligent Miranda was equally available to be located by Until the Pretrial Order, both parties knew that This conduct does not show Plaintiff acted willfully or in bad faith. 11 CONCLUSION 12 The Galdamez and Byrd considerations collectively weigh in 13 favor of granting Plaintiff’s motion. 14 because of Miranda’s new and recent testimony that Keilan was 15 seated in the left rear seating position, which contradicts the 16 Traffic Collision Report and Officer Tucker’s deposition 17 testimony as to Miranda’s prior statement that Keilan was seated 18 in the right rear seat. 19 seat Keilan occupied in the subject vehicle. 20 prejudiced as Plaintiff did not take the position that Keilan was 21 only in the right rear seat at the time of the Pretrial. 22 disruption to the proceedings will occur if Plaintiff makes its 23 experts immediately available for re-deposition and allows 24 Defendant’s experts to immediately examine the left rear seat This creates a disputed fact as to which 25 26 27 28 This motion was filed was 6 Defendant is not No 1 belt assembly.4 2 3 IT IS ORDERED: 4 1. 5 6 tentatively GRANTED; and 2. 7 8 9 10 Plaintiff’s Motion to Amend the Pre-Trial Order is The Pre-Trial Order is amended as of this date to conform to the following: At p. 1, line 21: (1) Manufacturing defects as to the right front seat belt, left rear seatbelt, and right rear seat belt; At p. 1, lines 23-24: (3) Failure to warn (whether Defendant 11 failed to adequately warn of any known or knowable risk relating 12 to the right front, left rear, and right rear seating positions); 13 At p. 3, line 11, add: c. The parties dispute whether a 14 manufacturing defect exists in the left rear seat belt webbing of 15 the Ford Explorer that proximately caused damages to Plaintiff; 16 17 18 At p. 3, line 16, add: The parties dispute whether Keilan Santos was seated in the left rear or right rear seat; At p. 3, line 18, add: The parties dispute the type of 19 injuries Keilan Santos would have sustained if the webbing in the 20 left rear seat belt assembly of the Ford Explorer did not 21 separate; 22 23 At p. 3, line 18, change No. 4 to read: The parties dispute whether, if Keilan Santos was seated in the right rear seat, he 24 25 4 27 Defendant indicated in its May 24, 2010 email that it would need to conduct additional exemplar testing, conduct further surrogate studies, and prepare additional demonstrative exhibits in preparation for trial. Defendant may conduct these tests and prepare exhibits up until trial and during trial. 28 7 26 1 was wearing his seat belt at the time of the accident; 2 At p. 4, line 6, change No. 11 to read: The parties dispute 3 whether Defendant failed to adequately warn of any known or 4 knowable risk relating to the right front, left rear, and the 5 right rear seating positions of the Ford Explorer; 6 7 At p.4, lines 22-25, change Nos. 18 and 19 to include: left rear passenger seating position; 8 At p. 7, line 18, change “nephew Daniel Torres-Santos” to 9 “the left rear seat belt,” ... and change “that of Plaintiff’s 10 son Keilan Santos,” to “the right rear,”. 11 3. Plaintiff shall immediately make her experts available 12 to Defendant for re-deposition on the sole issue of the 13 left rear seat belt and seat; 14 4. Plaintiff shall immediately allow Defendant’s experts 15 to inspect the seat belt assembly and seat in the left 16 rear seating position; 17 5. If Defendant’s experts will offer testimony at trial 18 about the left rear seat belt and seat, Defendant’s 19 experts shall provide a supplemental report of their 20 opinions and reasons therefor and shall be made 21 available for deposition before they testify at trial; 22 6. 23 2010; and 24 /// 25 /// 26 /// 27 /// 28 This order does not affect the trial date of June 2, 8 1 2 7. A telephonic conference will be held on these issues on May 26, 2010 at 12:30 p.m. See Document # 146. 3 4 IT IS SO ORDERED. 5 Dated: May 25, 2010 emm0d6 /s/ Oliver W. Wanger UNITED STATES DISTRICT JUDGE 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9
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