McCalla v. Nord

Nature of the order

This was a tentative pretrial-conference ruling. It addressed motions in limine, which are requests to decide before trial whether particular evidence or arguments may be presented, along with witness testimony, exhibits, jury instructions, the verdict form, and courthouse precautions. The order did not decide the parties' underlying claims.

Motions in limine

The court ruled as follows:

- Defendant's motion P1 to exclude the defendant's liability expert was granted in part. The court found that Mr. Tate was qualified to testify about trust administration but not about construction issues. - Defendant's motion D1 to exclude property-appraisal evidence was denied. The court stated that the appraisals were admissible under the business-records exception to Federal Rule of Evidence 803(6) and that the appraisers did not need to be designated as experts because they were percipient witnesses, meaning witnesses with personal knowledge of events. - Defendant's motion D2 to preclude the plaintiff from arguing or testifying that the Oregon property was part of the McCalla Family Trust was denied. The court stated that Thomas and Shirly's interest in the Oregon property could make it relevant to the trust assets. - Defendant's motion D3 to exclude the opinions and testimony of Plaintiff's Expert Varee Wycoff was denied. The court found her qualified in trust administration and stated that her experience and review of documents supported her opinion. It treated the defendant's concerns as matters of credibility for cross-examination rather than reasons to exclude the testimony. - Defendant's motion D4 to exclude evidence that had not been previously disclosed or timely produced was granted in part. The new Napa property photographs were excluded from the plaintiff's case-in-chief, but could be used for impeachment. The motion was denied as to all other evidence, and the defendant was permitted to reopen the plaintiff's deposition regarding the 2021 closing-disclosure paperwork.

Bifurcation and remote testimony

Although the parties had not filed a formal bifurcation motion, the court stated that it was not inclined to separate any possible punitive-damages phase from the liability phase. The parties were therefore told to expect an amended verdict form including the amount of punitive damages.

The court found that the plaintiff had not provided enough reason to allow third-party witnesses to testify remotely. In-state witnesses could not testify remotely. If a suitable courtroom was available, the court might allow the two out-of-state witnesses, Frank Cuffe and John Nelson, to testify remotely, provided that each witness's direct examination lasted less than one hour.

Objections to plaintiff's exhibits

The court stated that it intended to overrule the defendant's objections to Plaintiff's Trial Exhibits 4, 5, 6, 7, 10, 20, 37, 39, 40, 49, 113, 117, 120, 121, 123, 124, 125, 126, and 127. Some of those rulings were expressly subject to the defendant's motions in limine, including the rulings on the deeds, Oregon-property sales data, Pacific Gas and Electric bills, appraisals, the closing disclosure, repair invoices, certain financial records, and the expert report and curriculum vitae for Varee Wycoff.

The court sustained in part the objection to Exhibit 122, photographs of the Napa property. Only photographs produced on or after September 26, 2023, were excluded. The court overruled the objection to the remaining photographs.

The objections generally raised relevance, unfair prejudice, hearsay, lack of foundation or authentication, improper lay-witness expert testimony, incomplete records, and late production. The order also directed the parties to meet and confer about stipulating to the admission of exhibits that were not disputed.

Jury instructions and verdict form

The parties were ordered to submit amended jury instructions identifying any facts to which they stipulated or that they asked the court to recognize without proof. If there were no such facts, they were to tell the court that those instructions were unnecessary. The proposed joint verdict form was also expected to be amended because it assumed a separate punitive-damages phase.

COVID-19 and respiratory-virus precautions

The court stated that masking inside the courthouse would depend on the level of community transmission in the relevant county. The court could impose a mask requirement if transmission levels rose or public-health guidance changed. People experiencing symptoms of COVID-19 or other respiratory viruses were not permitted to enter the courthouse, and the parties were directed to notify the courtroom deputy if that occurred.