In Re Pacific Fertility Center Litigation

Background

This order confirmed the court’s rulings at the third pretrial conference held on May 18, 2021. The order addressed Docket Nos. 783, 785, 799, 800, and 802, covering proposed trial exhibits, expert testimony, demonstrative exhibits, jury instructions, and trial scheduling.

Chart’s objections to Plaintiffs’ exhibits

Chart objected to 74 of Plaintiffs’ exhibits as improper evidence of other occurrences, an issue connected to Chart’s first motion in limine. The court ruled only on the exhibits Plaintiffs then intended to offer and stated that it could address additional exhibits at later morning conferences if Plaintiffs decided to use them.

The court overruled Chart’s objections to:

- Trial Exhibits 219 and 201, finding the emails relevant to Chart’s knowledge of a defect with the controller. - Trial Exhibits 217, 239, 223, 280, and 287, finding the emails relevant to Chart’s knowledge of the defect and, when offered for their truth, admissible as statements by an employee of a party opponent. - Trial Exhibit 206, finding the emails relevant to show Chart’s knowledge of potential damage to tank contents from low-level liquid nitrogen. The court also found the emails were not being offered as evidence of a substantially similar incident and were not hearsay because they were statements of a party opponent.

Chart also objected to seven exhibits as a basis for “state of mind” testimony by Plaintiffs’ expert, Dr. Anand Kasbekar. To the extent Chart sought to limit Kasbekar’s expert testimony, including opinion No. 6, the court denied the request as untimely and unexplained. The court stated that Chart could cross-examine Kasbekar about his opinion.

For the specific exhibits, the court overruled the objection to Exhibit 2 but limited Kasbekar’s testimony. He could testify about his understanding of Chart’s statement that the bend was manufactured and what he was told as context for testing, but he could not characterize Chart’s statement as “misleading.” The court overruled the objections to Exhibits 5, 192, and 208 for the reasons stated on the record, and sustained the objections to Exhibits 234, 275, and 276 for the reasons stated on the record.

Plaintiffs’ objection to Chart’s exhibits

Plaintiffs made an authenticity objection to Chart’s Exhibit 360. The court sustained the objection unless and until Chart met and conferred with Plaintiffs and made a proper showing of authenticity and relevance.

Trial procedures and demonstrative exhibits

The court directed the parties to move into evidence, at the beginning of each witness’s testimony, all exhibits they expected to use with that witness.

The parties had raised disputes about each side’s proposed demonstrative exhibits. Chart was required to tell Plaintiffs by noon on May 19 which demonstratives Chart planned to use in its opening statement. Chart could not refer to the tank’s “warranty” in its opening statement or on its demonstratives.

The court sustained Plaintiffs’ objections to the “snowball” photograph, use of a video of Dr. Miller’s test, and any reference to Elizabeth Balassone. It overruled Plaintiffs’ objections concerning the multiple-alarm listing, the back-dating reference, the statement that Dr. Conaghan instituted a manual-monitoring policy for Tank 4 against his own laboratory’s protocols, and the blank “digital evidence” column. The court also overruled Chart’s objections to Plaintiffs’ demonstrative exhibit.

Jury instructions and trial schedule

The court made preliminary rulings concerning jury instructions 14, 15, 16, 19, 24, and 25, while stating that the parties would discuss the instructions fully during the charging conference at trial. The parties had agreed to use Ninth Circuit Model Jury Instruction No. 1.5 at the beginning of trial and were required to meet and confer and jointly file a proposed instruction by noon on May 21, 2021.

Opening statements were scheduled to begin at 8:30 a.m. on Monday, May 24, 2021. Each side was limited to one hour, and Plaintiffs were required to have their first witness or witnesses ready to testify immediately afterward.

Disposition and classification

The order disposed of Docket Nos. 783, 785, 799, 800, and 802. It was a pretrial evidentiary and scheduling order rather than a decision on the merits of the underlying litigation.