Faulkner v. Lucille Packard Salter Children's Hospital

Background

The court held a final pretrial conference on January 17, 2023. The case was scheduled for a jury trial beginning February 1, 2023, and all parties were represented by counsel.

Trial procedures

The court ordered that the jury would have eight members, with four peremptory challenges for each side. The court would conduct general questioning of prospective jurors, and each side’s counsel could question the panel for up to 20 minutes. The parties had to work together on a neutral statement of the case for use during jury questioning.

The court reviewed the parties’ proposed jury instructions and stated that it would tell counsel before closing arguments which substantive instructions would be given. The parties had to submit organized trial exhibits by January 27, 2023.

The parties agreed to divide the trial into a liability-and-damages phase and a punitive-damages phase. The court set an eight-day trial schedule. Each side could have up to 30 minutes for opening statements, 11 hours to present evidence during the liability-and-damages phase, and one hour for closing argument. If punitive damages were at issue, each side would receive one additional hour for opening statement, evidence, and argument.

Motions in limine

A motion in limine is a request to decide before trial whether particular evidence or arguments may be presented to the jury.

The court deferred ruling on the defendant’s Motions in Limine Nos. 1 and 5. Motion No. 1 concerned undisclosed witnesses and documents. Motion No. 5 concerned James W. Potts, JD. The court would reconsider those motions after the parties submitted a revised witness list and defense counsel filed a declaration about human-resources policies that plaintiff said were wrongfully withheld during discovery.

The court ruled on the remaining motions as follows:

- Plaintiff’s Motion No. 1, seeking to limit opening statements to evidence in the record, was granted. Both sides could refer in opening statements only to evidence they were certain would be admitted. Demonstrative materials required prior review and approval by opposing counsel or the court. - Plaintiff’s Motion No. 2, seeking to prevent David Kuo from testifying, was denied. The court found that Kuo had firsthand knowledge relevant to one of the defendant’s main stated reasons for terminating plaintiff. - Plaintiff’s Motion No. 3, seeking to strike an expert report and prevent David Rosenberg, M.D., from testifying, was denied, with limits. Dr. Rosenberg could testify only to contradict or rebut evidence on the same subject matter addressed by plaintiff’s three non-retained experts. His report could not be admitted because it contained affirmative opinions beyond proper rebuttal evidence, and he could not offer advocacy in the form of opinions. - Plaintiff’s Motion No. 4, seeking to prevent references to collateral sources, was granted as to payments plaintiff received from insurance or other collateral sources. The existence of health insurance could still be raised as a line of questioning if the defendant first obtained permission from the court outside the jury’s presence. - Defendant’s Motion No. 2, seeking to exclude references to Joseph Wilson’s State Bar reproval, was granted. Plaintiff could question Wilson about relevant events during that period of his life, but could not mention the reproval or State Bar disciplinary proceedings. - Defendant’s Motion No. 3, seeking to exclude references to dismissed or unpleaded claims, was denied as to the Lucile Salter Packard Children’s Hospital Harassment, Discrimination, and Retaliation Policy, which could provide context for plaintiff’s claims. It was denied, without prejudice to specific objections at trial, as to plaintiff’s use of the word harassment. The court deferred ruling on plaintiff’s proposed jury instructions. Plaintiff’s counsel confirmed that dismissed claims under the Fair Employment and Housing Act and the Family and Medical Leave Act would not be raised at trial. - Defendant’s Motion No. 4, seeking to exclude Victoria McLaughlin and her one-page handwritten summary, was denied as to McLaughlin’s testimony, subject to limits. She could testify only about opinions formed during treatment and could not testify about statements for which she lacked firsthand knowledge. The motion was granted as to the handwritten summary, although plaintiff could use it to refresh McLaughlin’s recollection. - Defendant’s Motion No. 6, seeking to exclude evidence or argument about unrelated lawsuits involving the defendant, post-litigation settlement discussions, and pending lawsuits against the defendant, was granted, without prejudice to plaintiff making an offer of proof at trial outside the jury’s presence. - Defendant’s Motion No. 7, seeking to exclude references to prior neonatal intensive-care-unit patient-care managers, was granted, without prejudice to plaintiff making an offer of proof at trial outside the jury’s presence. Plaintiff could describe the general type of job she was taking on but could not discuss why other patient-care managers were terminated without the court’s permission.

Additional orders and disposition

The parties had to submit a reduced and realistic witness list by January 20, 2023, including a brief description of each witness’s expected testimony. Defense counsel also had to file a declaration explaining which human-resources policies plaintiff requested, which policies were produced, and why other referenced policies were not produced.

This was a final pretrial scheduling order addressing trial management and the admission or exclusion of evidence. It did not decide the merits of plaintiff’s claims. Judge Susan Illston entered the order on January 18, 2023.