Davis v. Prison Health Services, Inc. et al

Filing 138

FINAL PRETRIAL SCHEDULING ORDER (SI, COURT STAFF) (Filed on 10/6/2011)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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FREDDIE M. DAVIS,

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United States District Court
For the Northern District of California

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No. C 09-2629 SI

Plaintiff,

FINAL PRETRIAL SCHEDULING
ORDER

v.
JAMES E. AYALA and DARRYL GRIFFITH,

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Defendants.

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On September 28, 2011, the Court held a final pretrial conference in the above captioned matter.
All parties were represented by counsel. The following matters were resolved:

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1.

Date of trial: Jury trial in this matter has been set to commence October 11, 2011.

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However, in light of the anticipated length of this trial and other calendar commitments of the Court and

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counsel, the parties agreed to continue the trial date until November 28, 2011.

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2.

Number of jurors and challenges: There shall be a jury of 8 members. Each side shall

have up to four peremptory challenges.

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3.

Voir dire: The court will conduct general voir dire, and counsel for each side shall have

up to 30 minutes total to question the panel.

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4.

Jury instructions: Counsel have submitted a set of proposed jury instructions, which

reflect that they have agreed on almost none of the necessary instructions. Counsel are ordered to meet

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and confer prior to the now-continued trial date, in an effort to reach consensus on most instructions.

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The Court advises that it prefers unadorned versions of the standard Ninth Circuit instructions, and that

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it will not give argumentative or redundant instructions. The parties’ amended Joint Instruction shall

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be provided to the Court no later than November 21, 2011.

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5.

Trial exhibits: No later than November 21, 2011, the parties shall submit their trial

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exhibits, in binders with numbered tabs separating and identifying each exhibit. The court shall be

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provided with three sets (for the court, the file and the witness) and each side shall provide one set for

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the other side. To the extent that original documents are to be used as exhibits in the case, they should

United States District Court
For the Northern District of California

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be included in the set of exhibits for the court.

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6.

Timing of trial: The parties originally estimated that the trial would take from 20 to 24

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trial days which, with 4-day trial weeks, amounts to 5 to 6 weeks of trial time.1 At the pretrial

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conference, counsel agreed that trial could be completed in 3 weeks (12 days). Based on this revised

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estimate, each side shall have 45 minutes for opening statements; each side shall have 24 hours total

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for presentation of evidence, which includes direct and cross-examination and presentation of all

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exhibits; and each side shall have up to 1 hour for closing argument. In the event a punitive damage

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phase is required, each side shall have up to 15 minutes for opening statement; up to 1 hour to present

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evidence; and up to 30 minutes for closing argument.

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7.

Trial schedule: Jury trials are generally conducted Monday through Thursday; jury

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trials are generally not conducted on Fridays, although deliberating juries are free to deliberate on

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Fridays. The trial day runs from 8:30 a.m. until 3:30 p.m., with a 15 minute break at 10:00 a.m., a 45

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minute break at 12:00 noon and a 15 minute break at 2:00 p.m., all times approximate.

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As the Court noted at the conference, plaintiffs identified 43 potential witnesses, of whom 7
(witnesses 3,4,5,6,7,8 and 9) were to testify to exactly the same thing. In addition, of the 12 witnesses
identified by defendants, 9 were witnesses already identified by plaintiffs. It was clear, therefore, that
elimination of overlap and cumulative testimony could substantially reduce the time needed for trial.
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8.

Motions in limine: The parties filed numerous motions in limine, as follows:

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Plaintiff’s motions:

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No. 1, to bifurcate liability and damages: Plaintiff seeks to bifurcate trial of liability from

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trial of damages, arguing that it will expedite the trial, allow “highly prejudicial” evidence of settlement

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with PHS to be kept from the jury during the liability phase, and reduce the cost of litigation. Defendant

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opposes the motion. The Court does not find that bifurcation would substantially save time, since except

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for the damages experts, most witnesses would have information on both topics. Further, the Court does

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not find that information concerning prior settlement with PHS is unduly prejudicial. The motion to

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bifurcate is DENIED.

United States District Court
For the Northern District of California

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No. 2, to exclude evidence of “irrelevant and stale complaints, grievances and

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discipline:” Plaintiff seeks to exclude evidence of complaints against her and discipline imposed on her

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which are either irrelevant or “stale.” The Court finds that in general plaintiff’s conduct on the job will

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be relevant to the claims in the case. However, the Court will consider any objections at time of trial

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to questions which would elicit irrelevant or unduly prejudicial information. DENIED without prejudice

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to specific objections to specific questions at time of trial.

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No. 3, to exclude evidence of settlement with PHS: Plaintiff withdrew this motion at the
pretrial conference.

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No. 4, to exclude Dr. Lipian and “improperly disclosed expert witnesses”: To the extent

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this is a Daubert motion to exclude testimony by Dr. Lipian, it is DENIED as unsupported. To the

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extent this is a motion to exclude inadmissible opinion testimony from non-retained experts, the motion

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is DENIED without prejudice to specific objections to specific questions at time of trial.

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No. 5, to exclude references to discovery disputes: DENIED as framed. All parties and
all counsel are ordered to act respectfully toward one another during the course of the trial.

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No. 6, to exclude prior litigation by plaintiff: Unopposed; GRANTED.

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No. 7, to exclude surprise witnesses and use of undisclosed documents: DENIED as

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framed, because premature and unsupported; but without prejudice to specific objections to specific

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questions or documents at time of trial.

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No. 8, to exclude lay opinion re defendants’ discriminatory intent: DENIED as framed,
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because premature and unsupported; but without prejudice to specific objections to specific questions

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or documents at time of trial.

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No. 9, to exclude inadmissible character evidence: Although framed as a motion to

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exclude “character” evidence, this motion seeks to exclude “false and unsubstantiated allegations that

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[plaintiff] was threatening or physically aggressive in the workplace.” Plaintiff’s conduct on the job will

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be relevant to the claims in this case, and admissible evidence concerning that conduct will be received.

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DENIED as framed, without prejudice to specific objections to specific questions

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Defendants’ motions:

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For the Northern District of California

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No. A, to exclude plaintiff’s testimony about Dr. Rivoire’s comments: Dr. Rivoire, a

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psychologist who previously treated plaintiff, is dead. Defendants seeks to prevent plaintiff from

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testifying about “what he told her.” Without more context, the Court cannot determine whether such

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testimony would be admissible. DENIED as framed, without prejudice to specific objections to specific

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questions at trial.

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No. B, to exclude NLRB charges against PHS: This motion will be addressed in a
separate order.

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No. C, to exclude statements from inmates at Santa Rita Jail: Defendants seek to exclude

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as hearsay plaintiff’s statements about what inmates at Santa Rita Jail told her about what defendant

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Griffith had said. The Court agrees that such testimony would be inadmissible hearsay; even if offered

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not for the truth but for plaintiff’s state of mind, the statement would only be relevant to these

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defendants if true. Inmates may provide such testimony; plaintiff may not. GRANTED.

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No. D, to exclude statements from sheriff’s deputies at Santa Rita Jail: Defendants seek

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to exclude as hearsay plaintiff’s statements about what non-defendant sheriff’s deputies said to her.

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Without more context, the Court cannot determine what such statements might be or why they might

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be offered. DENIED as framed, without prejudice to specific objections to specific questions at trial.

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No. E, to exclude “speculation” about motives: No witnesses may speculate about other

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persons’ motives. To that extent the motion is GRANTED.
No. F, to exclude plaintiff from “blaming” these defendants for acts of PHS: DENIED
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as framed, without prejudice to specific objections to specific questions at trial.

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No. G, to exclude complaints by nurses against Sharon Gober: Information about

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plaintiff’s petition activity concerning Sharon Gober is relevant to the claims in this case. DENIED as

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framed, without prejudice to specific objections to specific questions at trial.

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IT IS SO ORDERED.

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Dated: October 6, 2011
____________________________
SUSAN ILLSTON
United States District Judge

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United States District Court
For the Northern District of California

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