Guardant Health, Inc. v. Natera, Inc.

Background

This final pretrial conference order governed the parties’ upcoming jury trial. The court scheduled jury selection for November 5, 2024, and estimated that trial would take six to seven court days. Each party initially received 18 hours for opening statements, evidence, examinations, and closing arguments. Because of Natera’s excessive deposition designations and objections, the court deducted one hour from Natera’s allotment, leaving Natera with 17 hours.

The order listed the witnesses each party intended to call or might call, including fact witnesses and expert witnesses. It also set procedures for giving notice of exhibits and demonstratives, resolving objections, and filing joint statements when objections could not be resolved. The court warned that unreasonable objections could result in sanctions, including deductions from trial time.

Deposition Testimony and Motion for Leave

Natera argued that it could present deposition testimony from adverse corporate-designated witnesses even when those witnesses appeared live. After briefing, the court ruled that using such testimony was within the court’s discretion to manage the trial. The court would not allow deposition testimony for live adverse witnesses without a stipulation, except for impeachment. The court expected witnesses to be prepared to testify about the topics for which they had been designated.

Guardant sought leave to file an additional motion in limine concerning Natera’s chief executive officer, Matthew Rabinowitz. The court denied leave. It warned Natera not to exceed the scope of Rabinowitz’s previously permitted testimony as a late-disclosed witness.

Jury Instructions

The court finalized instructions concerning the burden of proof, false advertising under the Lanham Act, California common-law unfair competition, damages, disgorgement of profits, punitive damages, and willful false advertising.

Among other rulings, the court kept the clear-and-convincing-evidence instruction as written; rejected Natera’s renewed objections to the proposed comparative-advertising and establishment-claim instruction; and accepted Natera’s proposed wording for part of the instruction concerning advertisements based on peer-reviewed, published studies. The court also kept the instruction stating that California common-law unfair-competition claims are substantially congruent with Lanham Act claims.

For damages instructions, the court accepted Guardant’s request to include the word “allowable” when describing expenses used to calculate lost profits. It also accepted the parties’ deletion of language concerning future corrective-advertising costs because the court had excluded COBRA. For disgorgement of profits, the court replaced references to “infringement” and “sale of its product” with “false advertising,” but rejected Guardant’s additional proposed language about deducting expenses and overhead.

The parties stipulated to an instruction requiring the jury to decide whether false advertising was willful. The court did not issue an adverse credibility instruction concerning Dr. Hochster because Natera withdrew Dr. Hochster as a witness.

Verdict Form and Other Pretrial Matters

The court overruled or otherwise rejected Natera’s renewed objections concerning separate questions about misleading statements, sample advertisements attached to the verdict form, burden-of-proof language, and punitive damages, except that it revised Question 2 to include the burden of proof. The court also addressed certain deposition-designation objections, declined to rule on Dr. Parikh’s deposition designations because she was expected to appear live, and stated that it would address objections to revised “must use” exhibits by trial.

This order set procedures and resolved pretrial disputes. It did not report a jury verdict or decide the parties’ underlying false-advertising or unfair-competition claims.