In Re Pacific Fertility Center Litigation

Background

The court issued this order after an April 29, 2021 pretrial conference. A jury trial was scheduled to begin on May 20, 2021. The order resolved the listed motions in limine—pretrial motions asking the court to decide whether particular evidence or arguments may be presented at trial—and Chart’s motion to reconsider or clarify an earlier ruling about Dr. Miller’s test evidence.

Chart’s Motions

- Other occurrences: Chart sought to exclude evidence involving complaints about other Chart products, other tank failures, a Chart recall, and other incidents involving the TEC 3000 Controller. The court ruled only on Trial Exhibit 274 because the other exhibits were not specifically identified. Exhibit 274 was an email exchange following the implosion of a cryogenic tank at Rutgers University. The court excluded the exhibit as hearsay because plaintiffs offered an out-of-court statement for its truth. Alternatively, the court excluded it under Evidence Rule 403 because its limited usefulness was outweighed by the prejudice created by speculation about the distributor’s thinking. Plaintiffs must first raise the issue with the court if they seek to use the statement for impeachment. - “Reptile theory”: Chart’s motion was denied. The court would not categorically prohibit that trial strategy. - “Insurance policy” references in the egg or embryo banking context: Chart’s motion was denied. Plaintiffs may testify about how they viewed their stored eggs and embryos, and their emotional-distress damages expert may recount and discuss that testimony. - G.H.’s lost-chance damages: Chart’s motion was granted to the limited extent that G.H. could not offer evidence, testimony, or argument about emotional distress resulting from a reduced possibility of achieving a live birth. The court stated that G.H. could still seek compensation for damage to her eggs and that the ruling was without prejudice to later rulings concerning jury instructions.

Plaintiffs’ Motions

- The plaintiffs’ motion to extend the reasoning of the court’s earlier expert-evidence rulings to lay-witness testimony was granted in part. The reasoning applied to testimony about low liquid-nitrogen levels at Pacific Fertility Center in 2013 and 2014, the use of buckets to fill tanks, alleged destruction of evidence by spraying Tank 4 with powder, Tank 4’s warranty status, possible manufacturing or design defects, and possible malingering or symptom exaggeration. The ruling did not prevent Chart from eliciting testimony about what actually happened or cross-examining plaintiffs about emotional distress. - The plaintiffs’ motion to exclude evidence of Pacific Fertility Center’s later remedial efforts was denied. The court held that Evidence Rule 407 did not bar Chart from offering relevant evidence of remedial measures taken by a nonparty. - The plaintiffs’ motion concerning evidence of Pacific Fertility Center’s alleged bad acts was denied in part. Chart could use a January 2017 inspection report to show Pacific Fertility Center’s knowledge of deficiencies in its laboratory procedures and to support Chart’s argument about reliance on employees to monitor Tank 4 after the controller failed. Chart could not argue that the report alone proved negligence during the March 2018 incident. The plaintiffs’ request to prevent Ms. Balassone from testifying was granted because her proposed testimony was cumulative and created unnecessary privilege issues. - The plaintiffs’ motion to exclude informed-consent forms was denied. Before Pacific Fertility Center could refer to portions not identified in its opposition, it had to give plaintiffs notice and an opportunity to object. The parties were directed to discuss any limiting instruction for the exhibits. - The plaintiffs’ motion to exclude evidence that Pacific Fertility Center offered affected patients free fertility-related medical services was granted. Several identified trial exhibits were excluded without prejudice to Chart’s meeting and conferring with plaintiffs about portions relevant to other issues and otherwise admissible. - The plaintiffs’ motion to exclude evidence of Prelude Fertility’s finances and ownership was granted. Chart could not offer that evidence without first obtaining the court’s permission outside the jury’s presence. - The plaintiffs’ motion to exclude evidence of nonparty insurance coverage and indemnification agreements between Pacific Fertility Center entities was granted. Chart likewise needed the court’s permission outside the jury’s presence before offering that evidence. - Regarding remote testimony by Chart witnesses, Chart was ordered to provide additional information by May 6, 2021. The parties were then directed to meet and confer and contact the court by May 13 if a dispute remained. - The plaintiffs sought to continue using only their first names at trial and to redact identifying information. Rather than allow anonymous proceedings, the court ordered that the courtroom and transcript would be sealed when evidence concerned abortion, sexual history or practices, or other particularly private information brought to the court’s attention in advance.

Reconsideration and Clarification

Chart’s motion to reconsider and clarify the earlier ruling excluding Dr. Miller’s test evidence as unreliable was denied. The court also clarified that Dr. Miller’s visual observations during the test were excluded for the same reliability reasons. Dr. Miller could testify based on his experience about what would be expected on the outside of a cryogenic tank after a vacuum failure. The parties were directed to discuss whether video taken by Dr. Miller could be used as a demonstrative aid, but not as admissible evidence.

Additional Trial Procedures

The court set 25 hours of trial time for each side, excluding opening and closing statements. Each side received 1.25 hours for opening statements and two hours for closing arguments. The court also ordered the parties to prepare a witness-exclusion stipulation, set another pretrial conference for May 18, 2021, and established deadlines for statements about jury instructions, verdict forms, and demonstrative exhibits.

Effect of the Order

This was a pretrial evidence and trial-management order. It did not resolve the underlying claims on their merits. The order disposed of docket entries 728 and 742 through 754.