In Re Pacific Fertility Center Litigation

Background

This Order No. 1 addressed the parties’ written submissions about deposition designations and exhibits to be shown with those designations. The order concerned the plaintiffs’ and Chart’s proposed use of deposition testimony and related exhibits.

The court allowed the plaintiffs to play excerpts from Ramon Gonzalez’s deposition. Chart had decided not to call live two employees it had previously identified as witnesses. The court found that these changed circumstances justified allowing the plaintiffs to use Gonzalez’s deposition even though he was not originally on their witness list. The court also noted that using deposition testimony would not prejudice Chart because Chart would not need to prepare for an additional live witness and Gonzalez appeared on Chart’s witness list.

Governing standards

The court discussed Federal Rule of Civil Procedure 32(a)(4)(B), which permits a party to use deposition testimony against another party when specified conditions are met, including the witness’s unavailability because the witness is more than 100 miles from the place of trial. The court also applied Rule 32(b)(6) and Federal Rule of Evidence 106. Together, these provisions reflect the rule of completeness: when one side introduces part of a deposition, writing, or recording, the other side may seek to introduce additional portions that fairness requires to be considered at the same time. The party seeking a counter-designation bears the burden of showing that the rule applies.

The court stated that if Chart-designated testimony did not come into evidence during the plaintiffs’ presentation as a matter of fairness, Chart could offer that testimony during its own case-in-chief. The court also stated that it might need to address additional objections at the next morning’s proceedings if the plaintiffs continued to object to portions of Chart’s counter-designations that had not been marked as objected to.

Rulings on deposition designations

For Seth Adams, the order directed the plaintiffs to play one specified portion of Chart’s counter-designation to which the plaintiffs had objected. The court sustained one of Chart’s objections under Rules 401 and 403 because the testimony provided too little information about an occurrence to make it relevant to the incident at issue. The court overruled another objection because the plaintiffs intended to use Exhibit 192 concerning portions that Chart admitted existed before the incident.

For Jeff Brooks, the court granted all of the plaintiffs’ objections to Chart’s counter-designations, without prejudice to revisiting them if Chart later chose to play excerpts during its presentation of evidence. The court sustained Chart’s objection to one excerpt because it provided too little information to be relevant and overruled Chart’s objection to another because the testimony was based on Brooks’s own observations.

For Kyle Eubanks, the court again granted all of the plaintiffs’ objections to Chart’s counter-designations, without prejudice to revisiting them if Chart later used excerpts. The court sustained some of Chart’s objections based on Federal Rule of Evidence 601, insufficient information about a 2020 incident, and other stated grounds. It overruled an objection to testimony it found relevant to the claim concerning failure to recall the controller.

For Justin Junnier, the court granted the plaintiffs’ objections to Chart’s counter-designations, without prejudice to revisiting them during Chart’s case-in-chief, except for several specified excerpts that the plaintiffs should play. The court overruled Chart’s objections to numerous portions of the plaintiffs’ designations, finding portions relevant to the controller issue, the failure-to-recall claim, Chart’s knowledge and response to a controller issue, and an engineer’s understanding of alarm-malfunction risks. Other listed objections were also overruled.

For Gregory Mueller, the court granted the plaintiffs’ objections to Chart’s counter-designations and overruled Chart’s objection to a specified excerpt, stating that Exhibit 284 was admissible.

For Brandon Wade, the court granted the plaintiffs’ objections to Chart’s counter-designations, without prejudice to revisiting them if Chart used excerpts during its presentation of evidence. The court overruled Chart’s objections to the listed portions of the plaintiffs’ designations, including portions it found relevant to the failure-to-recall claim.

Exhibits and disposition

The court overruled Chart’s objections to Exhibits 192, 208, 216, 284, 200, 197, 225, 266, 220, and 263, relying on reasons previously stated where applicable and on the reasons in the plaintiffs’ filing at Docket No. 814. The order concluded: “IT IS SO ORDERED.”