United States District Court,

1. Nevada.

MELISSA ANN WRIGHT, Court Appointed Guardian of BROGAN ZANE WRIGHT, KAREN REIGER, and MIKE REIGER, Plaintiff,

v.

WATKINS AND SHEPARD TRUCKING, INC., a Montana Corporation; GREGORY ANDREW BRITT, an individual, Does 1 through 5, and Roes 1 through 5, Defendants.

2:11-CV-01575-LRH-GWF

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Filed 01/13/2016

 

 

ORDER

LARRY R. HICKS UNITED STATES DISTRICT JUDGE

*1 This is a motor vehicle negligence case. Before the court is defendants Watkins and Shepard Trucking, Inc. (“Watkins”) and Gregory Britt’s (collectively “Defendants “) Limited Objection to Magistrate Judge’s September 18, 2015 Order addressing replacement expert testimony. Doc. #139.1 Plaintiffs Melissa Ann Wright, Court Appointed Guardian of Brogan Zane Wright, Karen Reiger, and Mike Reiger (collectively “Plaintiffs”) filed a response (Doc. #140), to which Defendants replied (Doc. #141).

 

 

1. Factual and Procedural Background

After the death of Dr. John Siegler, one of Plaintiffs’ expert witnesses, who died unexpectantly in July 2014, Plaintiffs sought and received permission in October 2014 to designate a replacement expert to provide similar opinions premised on a similar foundation as those rendered by the deceased expert. The new expert, Dr. Armando Miciano, was designated in late 2014, completed his work in December and January, and was deposed on February 18, 2015. On August 12, 2015, Defendants filed a motion to strike the new expert’s testimony because his opinions were substantially different from those offered by the deceased expert. Doc. #116. On September 18, 2015, Magistrate Judge Foley held a hearing on the motion to strike. Doc. #136. Judge Foley granted the motion, subject to the condition that Plaintiffs may seek an alternative opinion from the replacement witness regarding Brogan Wright’s mental and/or physical condition and future care needs in accordance with those previously rendered by Plaintiffs’ deceased expert. Doc. #136. On October 2, 2015, Defendants filed their limited objection to the condition placed by Judge Foley on the granting of the motion to strike. Doc. #139. On October 19, 2015, Plaintiffs filed their response (Doc. #140), and on October 28, 2015, Defendants filed their reply (Doc. #141).

 

 

1. Discussion

Local Rule IB 3-1 authorizes a district judge to reconsider any pretrial matter referred to a magistrate judge pursuant to LR IB 1-3 where it has been shown that the magistrate judge’s order is clearly erroneous or contrary to law. This standard of review is significantly deferential to the initial ruling. “A finding is clearly erroneous when although there is evidence to support it, the reviewing body on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” United States v. Ressam, 593 F.3d 1095, 1118 (9th Cir.2010) (quotation omitted). The order “is afforded broad discretion, which will be overruled only if abused.” Columbia Pictures, Inc. v. Bunnell, 245 F.R.D. 443, 446 (C.D.Cal.2007). The Court “may not simply substitute its judgment for that of the deciding court.” Grimes v. City & Cnty. of San Francisco, 951 F.2d 236, 241 (9th Cir.1991). “A decision is ‘contrary to law’ if it applies an incorrect legal standard or fails to consider an element of the applicable standard.” Conant v. McCoffey, C 97–0139, 1998 WL 164946, at *2 (N.D.Cal. Mar. 16, 1998).

 

*2 In their objection, Defendants argue that the Magistrate Judge’s Order allowing Plaintiffs to seek an alternative opinion from Dr. Miciano regarding Wright’s mental and/or physical condition and future care needs in accordance with those previously rendered by Dr. Siegler permits Plaintiffs to seek a wholesale substitution of new opinions neither contained in Dr. Miciano’s report nor addressed in his deposition. Defendants contend there is no legal basis for the relief afforded to the Plaintiffs, the relief afforded is contrary to the law, and the Plaintiffs have been afforded relief they never sought.

 

The court has reviewed the documents and pleadings on file in this matter, as well as the transcripts of the hearings before Judge Foley, and finds that Defendants have failed to show that the condition placed in his order is either contrary to law or clearly erroneous. It also appears likely that Dr. Miciano was redeposed following Judge Foley’s order and neither the subject matter of his testimony nor his testimony has met with further objection by the Defendants. In ruling on the motion to strike, it is clear that Magistrate Judge Foley carefully considered the positions of all parties, the late timing of Defendants’ motion, and fashioned relief that was fair and reasonable to both sides. It was within Judge Foley’s discretion to grant such relief, and it was neither contrary to law nor clearly erroneous.

 

Accordingly, Defendants’ objection to the Magistrate Judge’s September Order (Doc. #139) is DENIED.

 

IT IS SO ORDERED.

Court of Appeals of Indiana.

HOKER TRUCKING, LLC and Linda L. Phillips, Appellants–Defendants,

v.

Pamela K. ROBBINS, as Administratrix of the Estate of Mike Douglas Robbins, Deceased, Appellee–Plaintiff.

No. 89A01–1411–CT–468.

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Dec. 31, 2015.

Appeal from the Wayne Superior Court; The Honorable Charles K. Todd, Jr., Judge; Trial Court Cause No. 89D01–1212–CT–56.

Attorneys and Law Firms

Michael T. Terwilliger, Whitten Law Office, Valparaiso, IN, Attorney for Appellant.

Frederick W. Crow, Young & Young, Indianapolis, IN, Attorney for Appellee.

 

 

OPINION ON REHEARING

RILEY, Judge.

*1 [1] In our original opinion, we concluded that based on SCI Propane v. Frederick, 39 N.E.3d 675 (Ind.2015), “Robbins, as the surviving spouse, was not entitled to recover attorneys’ fees and prejudgment interest as compensable damages under the GWDS.” See Hoker Trucking, LLC v. Robbins, –––N.E.3d –––– (Ind.Ct.App. Sept. 15, 2015). Robbins has now filed a petition for rehearing in which she contends that the prejudgment interest was not awarded on the attorneys’ fees, as we alluded to in our opinion, but on the $6,000,000.00 jury verdict. As such, she asserts SCI Propane is not applicable, and instead we should have followed the directives of the prejudgment interest statute, I.C. Ch. 34–51–4, which notes in section 1 that prejudgment interest “applies to any civil action arising out of tortious conduct.” We agree. Thus, we grant rehearing for the limited purpose of addressing the prejudgment interest award; in all other respects, we affirm our original opinion.

 

[2] Our review of the record indicates that the trial court ordered prejudgment interest on the jury verdict only and not on the award of attorneys’ fees. Applying the prejudgment interest statute, the trial court noted that although Hoker Trucking’s offer met the requirements of I.C. § 34–51–4–6, it did not meet the requirements of I.C. § 34–51–4–5 [the amount of the offer was less than 2/3 of the amount of the judgment award] and thus Hoker Trucking was responsible for the payment of prejudgment interest on the jury verdict. Accordingly, the trial court awarded prejudgment interest at a rate of 8% on the jury award from June 21, 2013 through October 5, 2014, for a total amount of $622,028.11.

 

[3] The prejudgment interest statute permits the trial court to grant prejudgment interest, but does not require an award of prejudgment interest. See I.C. 34–51–4–7; Alsheik v. Guerrero, 979 N.E.2d 151, 155 (Ind.2012) (in which Guerrero sought prejudgment interest in a medical malpractice suit). We review a trial court’s ruling on a motion for prejudgment interest under the prejudgment interest statute for an abuse of discretion. Id. Thus, the prejudgment interest statute grants the trial court broad discretion to determine when an award of prejudgment interest is warranted. Id. Accordingly, the trial court abuses its discretion if it misinterprets the law, or if it does not “support its determination with findings consistent with the statute.” Id. (citing Kosarko v. Padula, 979 N.E.2d 144, 150 (Ind.2012)).

 

[4] Here, the trial court awarded prejudgment interest in accordance with the prejudgment interest statute and supported its decision as follows:

In this cause, [Robbins] provided settlement demand letters on March 22, 2013 and December 19, 2013, which demanded payment of Six Million Dollars ($6,000,000.00), which was the amount of the ultimate jury verdict. Further, said demand letters met other relevant portions related to I.C. § 34–51–4–6. Additionally, [Hoker Trucking] made no offer that met the requirements related to I.C. § 34–51–4–5. Additionally, [Hoker Trucking] ultimately conceded full liability in this cause, and the trial held in this cause was only on the issue of damages. The [c]ourt, having considered the evidence submitted in this cause and properly before the [c]ourt, which includes [Robbins’] settlement demand letters, copies of which were admitted as Plaintiff’s exhibits 4 and 5[ ] and having reviewed applicable statutory sections and cases, and considering the objectives of the statute as herein above set forth, the [c]ourt finds that prejudgment interest is appropriate[.]

*2 (Appellant’s App. p. 78).

 

[5] We affirm the trial court’s award of prejudgment interest.

 

[6] BAILEY, J. and BARNES, J. concur.