Sidibe v. Sutter Health

Nature of the order

This was a final pretrial order issued under Federal Rule of Civil Procedure 16(e), after pretrial conferences on August 12 and 19, 2021. It prepared the case for trial and ruled on motions in limine, which are requests to admit or exclude evidence before or during trial. It did not decide the remaining claims on their merits.

Claims remaining for trial

The order identifies two groups of remaining claims from the summary-judgment order:

1. Alleged unlawful tying and an unlawful course of conduct under Section 1 of the Sherman Antitrust Act and California’s Cartwright Act. 2. An alleged violation of California’s Unfair Competition Law.

Sutter denies the claims. The order also notes that the court had previously granted Sutter summary judgment on the plaintiffs’ monopolization and attempted-monopolization claims under Section 2 of the Sherman Act.

Trial schedule and procedures

The jury trial was scheduled to begin on October 4, 2021, and to last up to four weeks. Each side was allotted 40 hours for direct and cross-examination, including objections raised during the trial day. Each party could have up to 45 minutes for opening statements and one hour for closing, including the plaintiffs’ rebuttal closing.

The order addressed procedures for exhibits, deposition excerpts, witness examinations, evidentiary stipulations, jury instructions, the verdict form, and the jury questionnaire. If both sides identified the same witnesses, the defendant would examine those witnesses when the plaintiffs called them rather than recalling them. The parties were also directed to call joint witnesses only once, during the plaintiffs’ case.

Plaintiffs’ motions in limine

The court denied the plaintiffs’ motion to exclude evidence about procompetitive benefits. It found that evidence concerning Sutter’s hospital viability, costs, spending, capital investments, employee hiring, quality of care, charity care, and access to medical services could be relevant to Sutter’s defenses and to the challenged contracting practices.

The court denied the plaintiffs’ motion to exclude evidence of Sutter’s nonprofit status, finding that the status could be relevant to Sutter’s financial governance, pricing, and spending.

The court denied the plaintiffs’ motion to exclude evidence about COVID-19 and California wildfires because the evidence could relate to the procompetitive benefits of the contracting practices. The court noted that Sutter had represented that it would not overemphasize those subjects and said the plaintiffs could make an offer of proof if Sutter went too far.

The court denied without prejudice the plaintiffs’ motion to exclude evidence of patients’ personal experiences. The court said the plaintiffs could object to particular evidence at trial and relied on Sutter’s representation that it would not call patients or refer to medical histories, but instead would make illustrative points about patient care.

The court denied the plaintiffs’ motion to exclude evidence about payer mix and cost shifting, finding that the evidence was relevant at least to pricing and potentially to procompetitive benefits such as access to medical care and predictable revenue.

The court denied the plaintiffs’ motion to exclude the class health plans’ financial information. It ruled, however, that evidence of specific executive salaries was not relevant and excluded it. Financial evidence, including executive compensation as a category of overall costs, remained admissible for calculating the pass-through rate.

The court denied the plaintiffs’ motion to exclude evidence predating litigation holds. It found no evidence that relevant evidence had been destroyed, noted that Sutter had produced substantial discovery, and concluded that the plaintiffs had not shown discernible prejudice. The court also noted that the witnesses involved generally were not involved in the challenged contracting practices.

Sutter’s motions in limine

The court granted Sutter’s motion to exclude references to the term “monopoly.” Because the court had previously granted summary judgment on the monopolization claims, it precluded use of that term at trial and stated that “anticompetitive” could be used instead.

The court granted in part Sutter’s motion to exclude evidence about other litigation and investigations. It generally excluded such evidence because its prejudice, potential to confuse the issues, and tendency to waste time substantially outweighed its value. The court allowed the plaintiffs to use admissible evidence from other proceedings, including Sutter’s admissions, subject to evidentiary objections at trial. The court also allowed the plaintiffs to make an offer of proof if particular evidence became relevant to rebut Sutter’s evidence about procompetitive benefits.

The court granted Sutter’s motion to exclude pre-2006 evidence, including pre-2006 evidence involving CALPERS. It allowed the plaintiffs to present evidence from a reasonable period before the class period for context but found that older evidence was minimally relevant, cumulative, confusing, or likely to create collateral disputes.

The court granted Sutter’s motion to exclude strategy-advantage documents. The documents concerned a 2006 marketing task force and statements by Sutter executives about marketing and product strategy. The court found that they were confusing, had no connection to the challenged contracting practices, and had only marginal relevance that was outweighed by the risk of confusion and collateral litigation.

The court granted Sutter’s motion to exclude evidence of alleged spoliation, relying on its separate ruling that there had been no spoliation. Spoliation means the destruction or loss of potentially relevant evidence.

The court granted Sutter’s motion to exclude evidence of the specific compensation amounts paid to individual Sutter executives and employees. It ruled that general executive compensation could be relevant as part of overall costs, but that individual compensation amounts would create a distracting and prejudicial side issue.

Disposition

The order set the procedures for the scheduled trial and ruled on each identified motion in limine as described above. It did not enter judgment on the remaining antitrust or unfair-competition claims.