Stuppin v. Gambling Artists Colors Co.

Filing 102

ORDER - FINAL PRETRIAL CONFERENCE ORDER. Signed by Judge Edward M. Chen on March 1, 2013. (emcsec, COURT STAFF) (Filed on 3/1/2013)

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1 2 3 4 5 UNITED STATES DISTRICT COURT 6 NORTHERN DISTRICT OF CALIFORNIA 7 8 JACK STUPPIN, 9 10 Case No. C-10-4114 EMC Plaintiff, v. FINAL PRETRIAL CONFERENCE ORDER 11 GAMBLING ARTISTS COLORS CO., 12 Defendant. _________________________________/ 13 14 15 16 I. TRIAL DATE & LENGTH OF TRIAL The jury trial shall begin on March 8, 2013, at 8:30 a.m., with jury selection, opening 17 statements, and presentation of evidence (time permitting). Evidence presentation and closing 18 arguments shall be completed by March 22, 2013. Generally, trial days shall last from 8:30 a.m. to 19 4:30 p.m., except on Wednesdays when trial adjourns at 2:00 p.m. Thursdays are dark. In addition, 20 there shall be no trial day on March 15, 2013. 21 Mr. Stuppin shall have twenty (20) hours to present his case (direct and cross-examination 22 but excluding the opening statement and closing argument which may be subject to separate time 23 limits). Gamblin shall have twelve (12) hours to present its case (with the same provisos). 24 25 II. AGREED-UPON MOTIONS IN LIMINE The parties have submitted agreed-upon motions in limine regarding three subject areas: (1) 26 exclusion of witnesses, (2) Gamblin’s insurance, and (3) settlement efforts. See Docket No. 62 27 (stipulations). The Court hereby adopts these stipulations. 28 1 1 2 3 III. A. DEFENDANT’S MOTIONS IN LIMINE Motion in Limine No. 1 (Docket No. 67) Gamblin’s first motion in limine to exclude testimony from and reference to Pauline 4 Mohr is GRANTED in part and DEFERRED in part. The motion is granted to the extent Ms. 5 Mohr shall not be allowed to testify about her conversations with Mr. Stuppin’s conservator 6 expert or himself, nor shall other witnesses be allowed to reference those conversations. The 7 motion is deferred to the extent Mr. Stuppin seeks to have Ms. Mohr testify about her 8 conversations with Mr. Pernicone or Mr. Stavroudis. Mr. Stuppin is not permitted to call Ms. 9 Mohr as a witness in his opening case but the Court reserves ruling as to whether she may be 10 able to testify as part of his rebuttal case. If neither Mr. Pernicone nor Mr. Stavroudis relies 11 on information communicated to him by Ms. Mohr, then there will be no basis for Ms. Mohr 12 to testify as part of Mr. Stuppin’s rebuttal case. 13 Gamblin’s first motion concerns Ms. Mohr, an individual that Mr. Stuppin has identified on 14 his witness list. Ms. Mohr, an art conservator, was initially hired by Gamblin to be a testifying 15 expert, including on the issue of whether Galkyd could be removed from the paintings at issue. In 16 November 2012, Gamblin withdrew Ms. Mohr as a testifying expert and replaced her with Chris 17 Stavroudis. See Docket No. 67 (Mot., Ex. 1). According to Gamblin, Ms. Mohr continues to be one 18 of its consultants or nontestifying experts. Gamblin contends that, because she is a nontestifying 19 expert, Mr. Stuppin should be barred from calling her as a witness or otherwise making any 20 reference to her. 21 22 23 The starting point for the Court’s analysis is Federal Rule of Civil Procedure 26(b)(4)(D). That rule provides that 25 [o]rdinarily, a party may not, by interrogatories or deposition, discover facts known or opinions held by an expert who has been retained or specially employed by another party in anticipation of litigation or to prepare for trial and who is not expected to be called as a witness at trial. But a party may do so only: 26 (i) 24 as provided in Rule 35(b) [addressing physical and mental examinations]; or 27 28 2 1 (ii) 2 on showing exceptional circumstances under which it is impracticable for the party to obtain facts or opinions on the same subject by other means. 3 Fed. R. Civ. P. 26(b)(4)(D). Exceptional circumstances might exist where, e.g.: 4 C 5 6 § 23.3; C 7 8 9 “the opponent has retained all available qualified experts,” 32-23P Moore’s Fed. Prac. – Civ. the nontestifying “‘expert has unique expertise which may not be readily available,’” FMC Corp. v. Vendo Co., 196 F. Supp. 2d 1023, 1046 (E.D. Cal. 2002); or C “the object or condition at issue is destroyed or has deteriorated after the non-testifying expert observes it but before the moving party’s expert has an opportunity to observe it,” 10 United States Inspection Servs. v. NL Engineered Solutions, LLC, 268 F.R.D. 614, 623 (N.D. 11 Cal. 2010); see also FMC, 196 F. Supp. 2d at 1046 (noting that “‘exceptional circumstances 12 might exist . . . where the [nontestifying] expert participated in tests which cannot be 13 replicated by new experts’”). 14 Mr. Stuppin, however, contends that the exceptional circumstances standard should be 15 applied only where a person has been designated as a nontestifying expert from the outset – not in a 16 situation in which a person has been designated a testifying expert and then “clawed back” and 17 designated a nontestifying expert. As Mr. Stuppin points out, at least one court has concluded as 18 much. See House v. Combined Ins. Co. of Am., 168 F.R.D. 236, 245 (N.D. Iowa 1996). 19 In House, the plaintiff sued, inter alia, her former employer for sexual harassment, a hostile 20 work environment, and retaliation. On the issue of emotional distress damages, she designated a 21 testifying expert, a social worker. Subsequently, the defendant designated its own testifying expert 22 on the issue, a psychiatrist. The psychiatrist examined the plaintiff more than a month after he had 23 been designated as a testifying expert. However, when the plaintiff noticed the psychiatrist for a 24 deposition and moved to compel his report on the examination, the defendant moved to quash the 25 deposition and sought a protective order precluding any discovery from him on the ground that the 26 company had decided not to call the psychiatrist as a witness at trial. See id. at 238. A magistrate 27 judge held that the plaintiff was entitled to the report under Federal Rule of Civil Procedure 35 but 28 concluded that, under Rule 26(b)(4)(B) (i.e., the predecessor to Rule 26(b)(4)(D)), the psychiatrist 3 1 could only be deposed upon a showing of exceptional circumstances, which had not been 2 demonstrated. See id. at 238-39. 3 Subsequently, the defendant filed a motion in limine asking the district court to bar the 4 plaintiff from calling the psychiatrist at trial. The court noted that the precise question before it was 5 what standard to apply when (1) a party had designated a person as a testifying expert but then (2) 6 withdrew that designation even though (3) the expert had already performed a Rule 35 medical 7 examination. See id. at 246. Unlike the magistrate judge, the court rejected application of the 8 exceptional circumstances standard, stating that that standard should apply only when a person was 9 designated as a nontestifying expert at the outset, and not in a situation where a person was first 10 designated as a testifying expert and then “clawed back.” See id. at 245. Instead of the exceptional 11 circumstances standard, the court applied what it called “[a] ‘discretionary’ standard, where the trial 12 court’s discretion is guided by a balancing of probative value against prejudice under Fed. R. Evid. 13 403.” Id. at 246. 14 Applying that standard, the court concluded that it would not exclude the psychiatrist as a 15 witness. The court noted first that the plaintiff had a legitimate interest in presenting the psychiatrist 16 as a witness 17 18 19 because he now has relevant information probative of plaintiff’s alleged emotional distress, . . . and there is a difference between the nature of [the psychiatrist’s] psychiatric evaluation and [the plaintiff’s] own expert’s methods, where [her] own expert [was] a social worker, not a physician, such that [the psychiatrist’s] testimony [was] not merely cumulative of [her] own expert’s opinion. 20 21 Id. at 247. The court also noted that the plaintiff seemed to have relied on the defendant’s 22 designation of the psychiatrist as a testifying witness before submitting to the medical examination: 23 “[The plaintiff] was only asked to consent to an examination after [the psychiatrist] had been 24 designated, and that consent may have been based, at least in part, on the expectation that [the 25 psychiatrist] would testify at trial.” Id. 26 27 28 The court, however, recognized that there was tremendous potential for prejudice to [the defendant] simply in the revelation to the jury that [the defendant] originally hired, designated, then dropped [the psychiatrist] as an expert after his examination of 4 1 2 3 4 the plaintiff once [his] opinions were actually known. [The defendant] should not suffer the obvious prejudice disclosure of its prior contact with [the psychiatrist] would likely have where that prejudice can be avoided. The proper evidentiary issue remains [the psychiatrist’s] opinion, not how he became involved in the case, as only his opinion serves the plaintiff’s proper interests in discovering the truth of the plaintiff’s claims. 5 Id. at 248. The court thus concluded that, although it would allow the plaintiff to call the 6 psychiatrist as a witness, it would not permit evidence as to “how he became involved in the case.” 7 Id.; see also Brigham Young Univ. v. Pfizer, Inc., No. 2:12-mc-143 TS BCW, 2012 U.S. Dist. 8 LEXIS 42051, at *16 (D. Utah Mar. 26, 2012) (following the approach taken in House). 9 Not all courts, however, have followed the approach taken by the court in House. For 10 example, unlike the House court, some courts have not automatically foreclosed application of the 11 exceptional circumstances standard simply because a party has changed a designation of an expert 12 from testifying to nontestifying. Instead, in deciding whether to apply the exceptional circumstances 13 standard, those courts have considered factors such as: (1) whether the expert has already issued an 14 expert report; (2) whether the designating party relied on the expert’s report or other testimony; or 15 (3) whether the expert’s designation was changed after the deadline to disclose experts or witness 16 lists had already passed. See, e.g., Hartford Fire Ins. Co., Inc. v. Transgroup Express, Inc., No. 09 17 C 3473, 2009 U.S. Dist. LEXIS 78982, at *8-9 (N.D. Ill. Sept. 1, 2009) (holding that “an expert does 18 not fall within the protection of Rule 26(b)(4)(B) [i.e., the predecessor to Rule 26(b)(4)(D)] once 19 that expert’s report is produced to the opposing party”); Plymovent Corp. v. Air Tech. Solns., Inc., 20 243 F.R.D. 139, 144 (D.N.J. 2007) (concluding that, “under the particular circumstances of this case, 21 [the plaintiff’s] reliance (or attempted reliance) on the videotape and [expert] report at the 22 preliminary injunction hearing did not effect a waiver of Rule 26(b)(4)(B)’s protection”); Estate of 23 Manship v. United States, 240 F.R.D. 229, 237 (M.D. La. 2006) (considering whether experts had 24 ever issued expert reports “or otherwise disclosed their opinions in this case”); In re Shell Oil 25 Refinery, 132 F.R.D. 437, 440 (E.D. La. 1990) (stating that, “[p]rior to the court imposed deadline 26 for exchange of witness lists, a party is free to make strategic decisions changing an anticipated 27 witness to a non-witness” – even after disclosure of expert reports). Under this line of cases, the 28 5 1 facts of this case would dictate that the exceptional circumstances test applies. Neither factor (1), 2 (2), or (3) obtain in the case at bar. 3 Still other courts have rejected House and held on to the exceptional circumstances standard 4 even where, e.g., there has been disclosure of an expert report. See, e.g., Cooper v. Ciccarelli, No. 5 07-2434-GLR, 2009 U.S. Dist. LEXIS 85840, at *3, 9 (D. Kan. Sept. 18, 2009); R.C. Olmstead, Inc. 6 v. CU Interface, LLC, 657 F. Supp. 2d 899 (N.D. Ohio 2009); Calloway Golf Co. v. Dunlop 7 Slazenger Group Ams., Inc., No. 01-669-### (MPT), 2002 U.S. Dist. LEXIS 15429, at *12-13 (D. 8 Del. Aug. 14, 2002). 9 The House court’s approach appears to be the minority position. Moreover, arguably, House 10 should be limited to its specific facts. See, e.g., Manship, 240 F.R.D. at 233 (noting that, “in House, 11 the court was inquiring about the correct application of Rule 26(b)(4) when a ‘Rule 35 medical 12 examination ha[d] occurred’ and noted the ‘kind of reliance’ created by ‘submission to a medical 13 examination by the designated expert’”). Were the exceptional circumstances test applied here as 14 most courts have, supra, then Mr. Stuppin has failed to establish such a circumstance. 15 Even if the Court were to apply a House analysis in the case at bar, Mr. Stuppin’s position on 16 the merits would be problematic. Mr. Stuppin seeks to have Ms. Mohr testify about (1) her 17 discussions with his own conservator expert1; (2) her discussions with him; and (3) her discussions 18 with other Gamblin experts, i.e., Tony Pernicone and Mr. Stavroudis. 19 As to (1) and (2) above, the Court shall not permit testimony by Ms. Mohr, nor shall it allow 20 other witnesses (such as Mr. Stuppin’s conservator expert or Mr. Stuppin himself) to make reference 21 to those discussions. Based on what has been presented to the Court, it appears that Mr. Stuppin 22 seeks to have these discussions introduced into evidence precisely to capitalize on the fact that 23 Gamblin’s own expert may have made comments or expressed opinions favorable to him. But that 24 is exactly what the House court recognized as being unfairly prejudicial. Notably, Mr. Stuppin has 25 not suggested that he be allowed to offer the discussions into evidence without making reference to 26 the fact that Ms. Mohr was Gamblin’s expert. 27 28 1 Apparently, the parties reached an agreement where the conservator experts could talk to one another directly. 6 1 Other considerations also weigh against admissibility of the discussions between Ms. Mohr 2 and Mr. Stuppin’s expert and between Ms. Mohr and Mr. Stuppin himself. For example, in House, 3 the court permitted the psychiatrist’s testimony in part because it was not cumulative of the 4 testimony of the plaintiff’s own expert, who was a social worker and not a doctor. That does not 5 appear to be the case here. That is, based on what has been presented to the Court, it appears that 6 both Ms. Mohr and Mr. Stuppin’s expert are conservators and both seem to share the opinion that 7 “Galkyd is removable but not in a financially reasonable fashion or without removing some of the 8 original paint from the surface of the painting.” Docket No. 64 (Joint PTC St. at 2) (stating such as 9 part of the undisputed facts). Also, in House, the court made note of the fact that the plaintiff 10 seemed to have relied on the defendant’s designation of the psychiatrist as a testifying witness. In 11 the instant case, there is no comparable reliance by Mr. Stuppin on Gamblin’s designation of Ms. 12 Mohr. 13 The Court’s analysis, however, is different to the extent Mr. Stuppin seeks to offer testimony 14 by Ms. Mohr as to her conversations with Gamblin’s other experts, Mr. Pernicone and Mr. 15 Stavroudis. To the extent Mr. Pernicone’s or Mr. Stavroudis’s opinions are based on information 16 provided by Ms. Mohr, then the information provided by Ms. Mohr would, at the very least, be 17 discoverable. See 7-37 Moore’s Fed. Prac. – Civ. § 37A.21 (noting that “[i]nformation used by 18 consulting, non-testifying experts is usually not discoverable, unless ‘exceptional circumstances’ are 19 shown under Rule 26(b)(4) [but] information furnished by a non-testifying, consulting expert that 20 had been ‘considered’ by a testifying expert in forming opinions must be disclosed in the expert’s 21 written report and is discoverable”); see also Manship, 240 F.R.D. at 238 (noting that “‘exceptional 22 circumstances’ may exist where a nontestifying expert’s report has been used by a testifying expert 23 as the ‘basis’ for the testifying expert’s opinion”). As a basis for another expert’s opinion, Ms. 24 Mohr’s testimony might be described pursuant to Federal Rule of Evidence 703 (discussed in detail 25 below). In that event, Ms. Mohr’s testimony would be dependent first on Mr. Pernicone’s and Mr. 26 Stavroudis’s testimony. Thus, Ms. Mohr’s testimony at best would be part of Mr. Stuppin’s rebuttal 27 case. And at this point, it is not clear whether Ms. Mohr’s testimony would need to be part of the 28 rebuttal case. For example, if Mr. Pernicone and Mr. Stavroudis testify (whether on direct or cross) 7 1 without any reliance on information provided to them by Ms. Mohr, then her testimony will be 2 unnecessary. 3 Accordingly, at this juncture, the Court grants in part the motion in limine and otherwise 4 defers ruling on the motion. The motion is granted to the extent Ms. Mohr shall not be allowed to 5 testify about her conversations with Mr. Stuppin’s conservator expert or himself, nor shall other 6 witnesses be allowed to reference those conversations. The motion is deferred to the extent Mr. 7 Stuppin seeks to have Ms. Mohr testify about her conversations with Mr. Pernicone or Mr. 8 Stavroudis. Mr. Stuppin is not permitted to call Ms. Mohr as a witness in his opening case but the 9 Court reserves ruling as to whether she may be able to testify as part of his rebuttal case. 10 B. Motion in Limine No. 2 (Docket No. 70) 11 Gamblin’s second motion in limine to exclude the testimony of Curtis Frank is 12 GRANTED in part and DENIED in part. The motion is granted only to the extent that Dr. 13 Frank is not qualified to express an opinion on whether “[a]dvice provided by Gamblin related 14 to claims of Galkyd being non-yellowing would likely have been followed by artists because of 15 Robert Gamblin’s reputation.” Docket No. 70 (Frank Report at 4). 16 In its second motion, Gamblin seeks to preclude the testimony of Mr. Stuppin’s expert, Dr. 17 Frank. Mr. Stuppin designated Dr. Frank as a rebuttal witness, more specifically, to rebut the 18 testimony of Gamblin’s expert, Robert Gamblin. Gamblin argues that Dr. Frank’s testimony should 19 be excluded because, for the most part, it is not true rebuttal testimony – i.e., the evidence is not 20 “intended solely to contradict or rebut evidence on the same subject matter identified” in Mr. 21 Gamblin’s expert report. Fed. R. Civ. P. 26(a)(2)(D)(ii). Gamblin concedes that one part of Dr. 22 Frank’s report may be proper rebuttal – i.e., that part that addresses what was the cause of the 23 yellowing in the paintings. Nevertheless, Gamblin asserts that testimony on that point should still be 24 excluded because it is based on the assumption that “[Mr.] Stuppin used an undercoating of GAC- 25 100 on his paintings rather than an undercoating of acrylic gel medium, as assumed by the Gamblin 26 report” and (more important) as supported by the testimony of Mr. Stuppin and his assistant and the 27 records of Mr. Stuppin’s paint supplier. Docket No. 70 (Mot. at 4); see also Part V.A.6, infra (ruling 28 on Exhibit 89). 8 1 The motion is granted in part and denied in part. The Court largely agrees with Mr. Stuppin 2 that, when Dr. Frank’s report is taken as a whole, it is clear that it is a rebuttal on the same subject 3 matter as Dr. Gamblin’s report – i.e., what was the cause of the yellowing in the paintings. To the 4 extent Gamblin believes that Dr. Frank’s opinion rests on an unwarranted assumption, it can cross- 5 examine Dr. Frank on that point. The Court, however, does agree with Gamblin that Dr. Frank is 6 not qualified to express an opinion on whether “[a]dvice provided by Gamblin related to claims of 7 Galkyd being non-yellowing would likely have been followed by artists because of Robert 8 Gamblin’s reputation.” Docket No. 70 (Frank Report at 4). Therefore, he shall not be permitted to 9 provide an opinion on such. However, Dr. Frank may be permitted to state that he is making the 10 assumption that “artists would be likely to follow Gamblin’s advice.” Docket No. 78 (Opp’n at 5). 11 C. 12 Motion in Limine No. 3 (Docket No. 79) Gamblin’s third motion in limine to exclude the testimony of Dan Lanahan is DENIED. 13 However, to ensure against any prejudice to Gamblin, the Court shall permit it to take a 14 deposition of Mr. Stuppin on the issue of the temperature study, as discussed below. 15 Mr. Lanahan is a law student who works for Mr. Stuppin’s counsel of record. Contrary to 16 what Gamblin suggests, Mr. Lanahan does not appear to be an expert witness. Rather, he largely 17 appears to be a sponsoring witness – i.e., he will “authenticate a table [Exhibit 26] he prepared 18 showing the average temperature in Graton as compared with the temperatures obtained from a 19 temperature recording device placed in [Mr.] Stuppin’s storage building [during the summer of 20 2012].” Docket No. 64 (Joint PTC St., Ex. A) (Pl.’s Witness List). Apparently, the device at issue 21 is a box thermometer in which one places paper recording disks, and the thermometer records the 22 temperature (in ink) on the paper disks. Mr. Stuppin was the person who bought the thermometer, 23 who placed it in his storage building, and who replaced the paper in the thermometer on a weekly 24 basis. Mr. Stuppin gave the paper disks to his counsel, and his counsel ultimately gave copies to 25 Gamblin – but not until the time of the parties’ pretrial meet and confer in mid-January 2013. 26 Under Federal Rule of Evidence, “[a] proponent may use a summary, chart, or calculation to 27 prove the content of voluminous writings, records, or photographs that cannot be conveniently 28 examined in court. The proponent must make the originals or duplicates available for examination 9 1 or copying, or both, by other parties at a reasonable time and place.” Fed. R. Evid. 1006. Thus, in 2 principle, the table prepared by Mr. Lanahan and his related testimony are not objectionable, 3 particularly because the underlying paper disks appear to have been provided to Gamblin. 4 The Court, however, has concerns about whether evidence of the temperature study (whether 5 based on Mr. Lanahan’s testimony or Mr. Stuppin’s testimony) should be permitted given that Mr. 6 Stuppin did not provide the evidence to Gamblin until mid-January 2013, i.e., during the parties’ 7 pretrial meet and confer. At the hearing, Mr. Stuppin argued that he had no reason to offer the 8 evidence until December 2012 when Mr. Gamblin speculated during his deposition that the 9 temperature inside Mr. Stuppin’s storage facility reached over 100 degrees. Mr. Stuppin contends 10 that the temperature study is simply rebuttal evidence in response to Mr. Gamblin’s testimony. 11 The Court rejects Mr. Stuppin’s attempt to characterize the evidence as mere rebuttal 12 evidence. Mr. Stuppin admitted at the hearing that he anticipated the issue regarding temperature 13 and thus set up the temperature study during the summer of 2012. Moreover, temperature was 14 clearly an issue given the tests conducted by Mr. Gamblin, as reflected in his expert report of 15 September 28, 2012. Thus, once the temperature study was completed in October 2012, the 16 information should have been disclosed to Gamblin as a supplemental initial disclosure pursuant to 17 Federal Rule of Civil Procedure 26(a) and (e). 18 Nevertheless, the Court shall allow the evidence to be admitted because it will prevent any 19 prejudice to Gamblin by allowing Gamblin to take Mr. Stuppin’s deposition (no later than March 5, 20 2013), on the issue of the temperature study. Mr. Stuppin shall also make the thermometer 21 (including any packaging, instructions, etc.) available to Gamblin for an inspection by March 4, 22 2013. 23 D. 24 25 26 27 Motion in Limine No. 4 (Docket No. 81) Gamblin’s fourth motion in limine to exclude evidence and argument concerning internal Gamblin documents, in particular, the “Library of Answers,” is DENIED. In the fourth motion, Gamblin asks the Court to exclude, in particular, documents from Gamblin’s “Library of Answers” (Exhibits 64-75). Gamblin argues that, because they are internal 28 10 1 documents only, they are not available to the public and therefore Mr. Stuppin could not have seen 2 or relied on the documents. 3 The motion is denied. Some of Mr. Stuppin’s claims may require reliance on representations 4 by Gamblin (e.g., breach of express warranty). See, e.g., Burr v. Sherwin Williams Co., 42 Cal. 2d 5 682, 695-96 (1954) (noting that “[t]he general rule is that privity of contract is required in an action 6 for breach of either express or implied warranty,” although one “exception to the general rule is 7 found . . . where the purchaser of a product relied on representations made by the manufacturer in 8 labels or advertising material”). However, as Mr. Stuppin points out, his failure-to-warn claims are 9 based on Gamblin’s internal knowledge that it did not disclose to the public. Thus, the “Library of 10 Answers” documents are relevant, and Gamblin has failed to make out an adequate showing that the 11 evidence is inadmissible pursuant to Federal Rule of Evidence 403. 12 E. 13 Motion in Limine No. 5 (Docket No. 83) Gamblin’s fifth motion in limine to exclude evidence and argument related to (1) a 14 change in Gamblin’s resin supplier for Galkyd and (2) customer complaints made in 2008, i.e., 15 after the change in the resin supplier (Exhibits 16-21) is GRANTED in part and DENIED in 16 part. Evidence on the change in the resin supplier is admissible but only to the extent Dr. 17 Frank relied on the evidence in formulating his opinion. Evidence as to the customer 18 complaints made in 2008 (Exhibits 16-21) is inadmissible. The complaints largely focus on 19 drying time for the product, not the issue of yellowing. Although one complaint mentions that 20 the “new” Galkyd “does not have the [t]ransparency the old [G]alkyd had,” Ex. 19, that is still 21 different from a contention that the “new” Galkyd was causing yellowing. That evidence has 22 no probative value to the claim still at issue. 23 F. 24 25 Motion in Limine No. 6 (Docket No. 85) Gamblin’s sixth motion to exclude evidence suggesting that Galkyd is defective is GRANTED. 26 In its final motion, Gamblin asks the Court to exclude any evidence suggesting that Galkyd 27 is defective because it is Gamblin’s understanding that Mr. Stuppin is no longer making a products 28 liability claim based on a manufacturing or design defect. In response, Mr. Stuppin confirms that he 11 1 is no longer bringing a claim based on defective product. However, he argues that this should not 2 bar him from presenting evidence about Galkyd so long as it is relevant to the claims still in the 3 action. 4 The Court grants the motion because Mr. Stuppin is no longer making a claim based on 5 manufacturing or design defect. However, as discussed at the hearing, this will not bar Mr. Stuppin 6 from presenting evidence that, e.g., the qualities of Galkyd (such as susceptibility to yellowing) were 7 such that Gamblin should have given a warning to its customers. 8 9 10 IV. A. PLAINTIFF’S MOTIONS IN LIMINE Motion in Limine No. 1 (Docket No. 69) In the first motion, Mr. Stuppin asks the Court to exclude evidence and argument 11 related to any testing Mr. Gamblin performed which took place after March 2012. The 12 motion is DENIED. 13 Mr. Stuppin points to two rounds of tests that took place after March 2012 – i.e., tests done 14 in April-May 2012 and tests done in September 2012. According to Mr. Stuppin, these tests should 15 be excluded because, at a discovery hearing held on September 14, 2012, this Court ruled that Mr. 16 Gamblin’s expert report should cover testing through March 2012 only. Mr. Stuppin emphasizes 17 that Mr. Gamblin’s September 2012 testing is particularly objectionable because that round of 18 testing took place after the Court’s September 14 hearing. 19 Although the Court is not unsympathetic to Mr. Stuppin’s position and finds the late 20 disclosure of the tests in contravention of the spirit if not the letter of this Court’s directive, the 21 motion is denied for lack of prejudice. As to the April-May 2012 tests, those should have been 22 brought to the Court’s attention at the September 14, 2012, hearing. Gamblin’s failure to do so is 23 largely unexplained. Nevertheless, Mr. Stuppin has failed to show that he would be unfairly 24 prejudiced if the April-May 2012 testing were included, particularly because that testing was 25 covered in Mr. Gamblin’s expert report of September 28, 2012, submitted well in advance of trial. 26 Notably, Mr. Stuppin was able to depose Mr. Gamblin on the entirety of his September 28 report. 27 As for the September 2012 testing, counsel for Gamblin has represented that she was not 28 aware Mr. Gamblin intended to perform new tests. See Docket No. 69 (Opp’n at 2). The Court 12 1 finds this representation credible because, had she known, she clearly would have informed the 2 Court at the hearing on September 14, 2012, and asked for those tests to be included in the expert 3 report. The Court also notes that, while it appears the September 2012 testing could have been done 4 prior the hearing on September 14, there is some justification as to why it was not covered in earlier 5 testing in February-March 2012 or even April-May 2012 – i.e., because Mr. Gamblin did not take 6 note of the issue of varnish thickness until the end of July 2012 when he was finally allowed to view 7 5 additional paintings that Mr. Stuppin claimed were damaged. Finally, similar to above, the Court 8 notes that Mr. Stuppin has failed to demonstrate that he would be unfairly prejudiced if the 9 September 2012 testing was not excluded, particularly because that testing was a part of the 10 September 28, 2012, expert report tendered by Mr. Gamblin, well in advance of trial. 11 The Court emphasizes here that it is not condoning Gamblin’s conduct. Given the issues 12 discussed at the September 14, 2012, hearing, Gamblin should have informed the Court that Mr. 13 Gamblin’s expert report would be covering testing beyond March 2012 once it learned of that fact. 14 Nevertheless, in the absence of substantial prejudice, the Court will not exclude the evidence, 15 although it would well be in its discretion to do so. See Fed. R. Civ. P. 37(b)(2) (discussing 16 sanctions available where a party fails to obey a discovery order); see also Fed. R. Civ. P. 37(c)(1) 17 (providing that, “[i]f a party fails to provide information or identify a witness as required by Rule 18 26(a) or (e), the party is not allowed to use that information or witness . . . at a trial, unless the 19 failure was substantially justified or is harmless”). 20 B. 21 Motions in Limine Nos. 2 and 3 (Docket Nos. 71-72) In the second and third motions, Mr. Stuppin asks the Court to preclude the testimony 22 of one of Gamblin’s experts, Mr. Pernicone. Gamblin intends Mr. Pernicone to opine on two 23 issues: (1) the cause of the yellowing of the paintings at issue and (2) the fair market value of 24 the paintings at issue. The second motion in limine addresses issue (1), and the third motion in 25 limine addresses issue (2). The Court GRANTS the second motion in limine but DENIES the 26 third. Mr. Pernicone may opine on the fair market value of the paintings, but not on the cause 27 of the yellowing. 28 13 1 With respect to the second motion, the Court agrees that Mr. Pernicone is not qualified to 2 offer an opinion. He is an art appraiser. While being an art appraiser may make him knowledgeable 3 about valuation of art, and while it may even make him “familiar enough with the problem of 4 yellowing,” Docket No. 71 (Exhibit A) (Pernicone Report at 4) (emphasis added), he has not 5 demonstrated that that necessarily makes him knowledgeable about the causes of yellowing. In its 6 opposition, Gamblin points out that Mr. Pernicone states in his report: “I do have experience with 7 the causes of yellowing in oil paints.” Docket No. 71 (Exhibit A) (Pernicone Report at 5). But 8 notably absent from both the report and Gamblin’s opposition is any information as to what that 9 experience is. Furthermore, as Mr. Stuppin notes, Mr. Pernicone’s report on the cause of yellowing 10 is largely a regurgitation of the opinions of others. “Federal Rules of Evidence 702 and 703 permit 11 an expert to rely upon ‘facts and data’” – not “to rely upon excerpts from opinions developed by 12 another expert for the purposes of litigation.” In re Imperial Credit Indus. Sec. Litig., 252 F. Supp. 13 2d 1005, 1012 (C.D. Cal. 2003); see also American Key Corp. v. Cole Nat’l Corp., 762 F.2d 1569, 14 1580 (11th Cir. 1985) (noting that “[e]xpert opinions ordinarily cannot be based upon the opinions 15 of others whether those opinions are in evidence or not”). 16 Accordingly, the Court grants the second motion in limine, but it shall not bar Mr. Pernicone 17 from providing testimony as a layperson, e.g., to the extent he viewed the paintings at issue or the 18 storage conditions for the paintings at issue. 19 As for the third motion in limine, Mr. Stuppin argues that Mr. Pernicone should not be 20 allowed to opine on fair market value of the paintings at issue because he has concluded that he has 21 no opinion. This argument is without merit. Mr. Pernicone has opined that there is insufficient data 22 to establish a fair market value for the paintings at issue. This is a direct criticism of Mr. Stuppin’s 23 expert who claimed to be able to reach a valuation. 24 C. 25 Motion in Limine No. 4 (Docket No. 73) In his fourth motion, Mr. Stuppin asks the Court to exclude evidence and argument 26 related to Mr. Stuppin’s use of (1) assistants and (2) visual outlines to prepare his paintings. 27 The motion is DENIED. 28 14 1 As Gamblin points out, Mr. Stuppin’s use of assistants is relevant because it appears that, on 2 at least some occasions, they were the ones to apply Galkyd to Mr. Stuppin’s paintings. As for the 3 use of visual outlines, that may well affect the value of the final artwork. Furthermore, as Gamblin 4 notes, how Mr. Stuppin prepares his paintings has relevance to the expert testimony of Mr. Gamblin 5 who performed tests on “paintings” where he tried to replicate Mr. Stuppin’s painting process. 6 D. 7 8 9 Motion in Limine No. 5 (Docket No. 74) In the fifth motion, Mr. Stuppin seeks exclusion of evidence and argument related to another Gamblin expert, Mr. Stavroudis. The motion is DENIED. Mr. Stuppin argues that testimony by Mr. Stavroudis should be barred for multiple reasons: 10 (1) because he will testify to subjects broader than initially disclosed by Gamblin; (2) because his 11 expert report was not provided until late December 2012; (3) because his testimony is based (at least 12 in part) on untimely testing by Mr. Gamblin; and (4) because his testimony is unreliable as he never 13 examined any Stuppin painting in person (examining instead one of the “mock-ups” created by Mr. 14 Gamblin as a test) and at most looked at a photograph taken of a Stuppin painting. 15 The Court does not find any of the above arguments persuasive. First, the initial disclosure 16 with respect to Mr. Stavroudis did not limit his testimony to whether Galkyd could be removed. 17 Rather, it simply indicated that Mr. Stavroudis was a conservator and a conservation science 18 consultant. See Docket No. 74 (Exhibit A) (initial disclosures). Thus, the initial disclosure on its 19 face indicated that Mr. Stavroudis would be testifying on issues related to conservation. This could 20 include whether Galkyd could be removed, but it could also include, e.g., what should be done to 21 properly preserve a painting and what should not be done to preserve a painting. 22 Second, although Mr. Stavroudis’s expert report was not provided until late December 2012, 23 Mr. Stuppin has failed to make an adequate showing that he has been unfairly prejudiced as a result. 24 He was still able to take Mr. Stavroudis’s deposition (in January 2013). Although Mr. Stuppin 25 argues that he has been unfairly prejudiced because he was not able to prepare a rebuttal report, it is 26 telling that he does not appear to have asked Gamblin for the opportunity to prepare such a report -- 27 this in spite of the fact that he was pressing Gamblin for Mr. Stavroudis’s report precisely because “I 28 will need to see his report to determine if I need rebuttal experts.” Docket No. 74 (Exhibit H) 15 1 (e-mail, dated 12/12/2012, from Mr. Carle to Ms. Kaplan). Nor has Mr. Stuppin (until now) brought 2 the issue to the Court’s attention or sought dispensation for additional time to prepare a rebuttal 3 report. The Court also takes into consideration that it is unlikely that Mr. Stuppin needed to have a 4 rebuttal report given that he already has his own conservation expert and that the opinions in the 5 Stavroudis report do not reveal any dramatically new issues. However, to ensure against any 6 prejudice to Mr. Stuppin, the Court is willing to give Mr. Stuppin some leeway to expand the scope 7 of testimony of his own already-designated experts to include rebuttal of the opinions expressed by 8 Mr. Stavroudis. 9 Third, to the extent Mr. Stuppin argues that Mr. Stavroudis’s opinions are based on untimely 10 testing by Mr. Gamblin, it is not clear that that is in fact the case. Even if it were, the Court has 11 already ruled that it will allow the late testing into evidence. 12 Finally, to the extent Mr. Stuppin criticizes Mr. Stavroudis’s opinions because they are based 13 on Mr. Gamblin’s “mock-ups” and only a photograph of a Stuppin painting, those are arguments that 14 go to weight and not admissibility. Mr. Stuppin has failed to make an adequate showing that the 15 limitations in Mr. Stavroudis’s review render his opinion so unreliable that it should be excluded in 16 its entirety. 17 E. Motion in Limine No. 6 (Docket No. 75) 18 In the sixth motion, Mr. Stuppin asks the Court to exclude evidence and argument 19 related to the fact that, when looking for a rebuttal expert with respect to Mr. Gamblin’s 20 testimony, Mr. Stuppin contacted Mr. Stavroudis. The motion is GRANTED. 21 Mr. Stuppin contends that the evidence is not relevant, see Docket No. 75 (Mot. at 3) 22 (arguing that “the contact does not go to whether Mr. Stavroudis is a qualified expert as [Mr. 23 Stuppin] never asked any questions nor received any information to determine that” because he cut 24 off the contact once he learned that Mr. Stavroudis had been retained by Gamblin), and further 25 asserts that it is unfair prejudicial under Rule 403. The Court agrees. The evidence has at best 26 marginal probative value for the jury. Any probative value is substantially outweighed by the 27 danger of unfair prejudice. Just as Mr. Stuppin should not be allowed to capitalize on the fact that 28 16 1 Ms. Mohr is Gamblin’s expert, Gamblin should not be allowed to capitalize on the fact that Mr. 2 Stuppin happened to contact one of its own experts. 3 F. Motion in Limine No. 7 (Docket No. 76) 4 In his seventh motion, Mr. Stuppin asks the Court to bar evidence and argument to the 5 effect that Gamblin “‘has never been sued for this kind of thing before.’” Docket No. 76 (Mot. 6 at 1). Mr. Stuppin maintains that such evidence is not relevant and further is unfairly 7 prejudicial. In response, Gamblin argues that the lack of lawsuits against it goes to its state of 8 knowledge, which is relevant with respect to the failure-to-warn claims. The Court DENIES 9 the motion. Gamblin is free to argue that, because of a lack of lawsuits, it did not have 10 sufficient knowledge of a problem with yellowing to make it liable for a failure to warn, just as 11 Mr. Stuppin is free to argue that there were at least two customer complaints about yellowing 12 which put Gamblin on notice of a problem. 13 G. 14 Motion in Limine No. 8 (Docket No. 77) Finally, Mr. Stuppin asks the Court to exclude evidence and argument related to the 15 disposition of the Galkyd bottles that he bought. Mr. Stuppin argues that this is only fair 16 given that he has “dropped [his] products liability . . . defective product claims.” Docket No. 17 77 (Mot. at 2). In response, Gamblin states that it will not oppose the motion but only after 18 Mr. Stuppin formally dismisses his product defect claims. The Court GRANTS the motion. 19 Gamblin need not wait for a formal dismissal of the defective product claims because Mr. 20 Stuppin has now made a representation to the Court that he is dismissing the claims. The 21 Court thus deems those claims dismissed, and with prejudice. 22 V. 23 EXHIBITS Per the Court’s instruction, the parties have identified objections to exhibits (six apiece) for 24 which they seek an advance ruling. 25 A. Plaintiff’s Exhibits 26 1. 27 Exhibits 3a and 3b are e-mails exchanged between Gamblin and a customer by the name of 28 Amy Bennett. In the 2006 e-mails, Ms. Bennett asks questions about Galkyd, including whether it Exhibit 3a and 3b 17 1 yellows over time, and Gamblin responds. In the 2010 e-mails, Ms. Bennett identifies yellowing as 2 a problem and asks for assistance; Gamblin responds. Gamblin has objected to the e-mails on the 3 basis of relevance and Rule 403. 4 5 The objections are overruled. As Mr. Stuppin argues, the evidence is probative of Gamblin’s knowledge about whether Galkyd causes a yellowing problem and its alleged failure to warn. 6 2. 7 Exhibit 18 is a customer complaint about Galkyd that post-dated the change in Gamblin’s Exhibit 18 8 resin supplier. The exhibit is the subject of Gamblin’s fifth motion in limine. The Court has granted 9 the motion with respect to the customer complaints. 10 3. 11 Exhibit 39 appears to be evidence that the San Jose Museum of Art and a San Francisco art Exhibit 39 12 gallery exhibited certain landscape paintings by Mr. Stuppin. Gamblin has objected to the evidence 13 on the grounds of relevance and Rule 403. 14 The objection is overruled. As Mr. Stuppin argues, the evidence is probative of damages. 15 For example, a jury could infer from the evidence that Mr. Stuppin is a sufficiently well-known 16 painter to be able to have his work exhibited. 17 4. 18 Exhibit 61 is a 2011 e-mail (i.e., a post-litigation e-mail) from Gamblin to (what appears to Exhibit 61 19 be) a third party regarding changes to Gamblin’s website. Gamblin has objected to the evidence on 20 the basis of relevance and Rule 403. In response, Mr. Stuppin argues that the evidence is probative 21 of Gamblin’s knowledge, which is a component of the failure-to-warn claims. 22 The objection is sustained. Gamblin’s Rule 403 objection is, in essence, an objection based 23 on Federal Rule of Evidence 407. See, e.g., Kelly v. Crown Equip. Co., 970 F.2d 1273, 1277-78 (3d 24 Cir. 1992) (noting that Rule 407 “operates on the presumption that undue prejudice is likely in 25 certain situations, expressing a distrust of a jury’s ability to draw the proper inferences from the 26 evidence”). Rule 407 provides that, “[w]hen measures are taken that would have made an earlier 27 injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove 28 negligence; culpable conduct; a defect in a product or its design; or a need for a warning or 18 1 instruction.” Fed. R. Evid. 407. While the rule goes on to provide that “the court may admit this 2 evidence for another purpose, such as impeachment or – if disputed – proving ownership, control, or 3 the feasibility of precautionary measures,” Fed. R. Evid. 407, the Ninth Circuit has made clear that, 4 under Rule 407, a subsequent warning is not admissible to establish what was knowable earlier. See 5 Rosa v. TASER Int’l, Inc., 684 F.3d 941, 948 (9th Cir. 2012) (where plaintiffs pointed to evidence 6 that defendant issued a warning in 2009 that explicitly discussed a medical risk, stating that this 7 evidence could not help plaintiffs avoid summary judgment “[b]ecause the fact of this 2009 warning 8 is not admissible to establish what was knowable in December 2008” under Rule 407); see also 9 Adams v. Chevron U.S.A., Inc., 383 Fed. Appx. 447, 452 (5th Cir. 2010) (noting that Rule 407 10 “seeks to ensure that negligence is properly determined ‘according to what the defendant knew or 11 should have known prior to the accident, not what the defendant knew as a result of the accident’”) 12 (emphasis omitted); Wetherill v. University of Chicago, 565 F. Supp. 1553, 1557-58 (N.D. Ill. 1983) 13 (stating that “whether a claimed wrongdoer knew or should have known, but nonetheless did not 14 employ, remedial measures earlier” is a question that concerns the claimed wrongdoer’s culpability 15 or negligence and therefore falls under Rule 407). Accordingly, Mr. Stuppin’s argument that the 16 evidence is admissible to establish Gamblin’s knowledge at the relevant time is without merit. 17 5. 18 Exhibit 74 is one of the answers found in Gamblin’s “Library of Answers.” The exhibit is Exhibit 34 19 one of the exhibits subject to Gamblin’s fourth motion in limine. The Court has denied that motion 20 above. 21 6. 22 Exhibit 89 consists of documents that Mr. Stuppin’s expert, Dr. Frank, used in forming his 23 opinions. The documents can be loosely grouped into one of three categories: (1) statements made 24 by Gamblin (e.g., on its website); (2) scientific articles written by others; and (3) statements made by 25 another artist paint supply company, Golden Artist Colors (“GAC”) (e.g., on its website) – in 26 particular, about one of its own products GAC 100. Gamblin has objected to the evidence on the 27 basis of relevance and Rule 403. It has also raised a hearsay objection. Finally, Gamblin notes that 28 it reserves any objection based on the “[l]ack of specificity.” Docket No. 94 (Letter at 2). Exhibit 89 19 1 2 3 4 5 6 The critical objections are the hearsay and Rule 403 objections. In evaluating these objections, the Court must begin with Federal Rule of Evidence 703, which provides as follows. An expert may base an opinion on facts or data in the case that the expert has been made aware of or personally observed. If experts in the particular field would reasonably rely on those kinds of facts or data in forming an opinion on the subject, they need not be admissible for the opinion to be admitted. But if the facts or data would otherwise be inadmissible, the proponent of the opinion may disclose them to the jury only if their probative value in helping the jury evaluate the opinion substantially outweighs their prejudicial effect. 7 8 Fed. R. Evid. 703 (emphasis added) The advisory committee notes amplify what is contained in the 9 text of Rule 703, explaining that, “when an expert reasonably relies on inadmissible information to 10 form an opinion or inference, the underlying information is not admissible simply because the 11 opinion or inference is admitted.” Fed. R. Evid. 703, 2000 advisory committee notes. The notes 12 then go on to explain: 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 When information is reasonably relied upon by an expert and yet is admissible only for the purpose of assisting the jury in evaluating an expert’s opinion, a trial court applying this Rule must consider the information’s probative value in assisting the jury to weigh the expert’s opinion on the one hand, and the risk of prejudice resulting from the jury’s potential misuse of the information for substantive purposes on the other. The information may be disclosed to the jury, upon objection, only if the trial court finds that the probative value of the information in assisting the jury to evaluate the expert’s opinion substantially outweighs its prejudicial effect. If the otherwise inadmissible information is admitted under this balancing test, the trial judge must give a limiting instruction upon request, informing the jury that the underlying information must not be used for substantive purposes. In determining the appropriate course, the trial court should consider the probable effectiveness or lack of effectiveness of a limiting instruction under the particular circumstances. .... [In essence,] [t]he amendment [to Rule 703] provides a presumption against disclosure to the jury of information used as the basis of an expert’s opinion and not admissible for any substantive purpose, when that information is offered by the proponent of the expert. Fed. R. Evid. 703, 2000 advisory committee notes (emphasis added). Thus, per Rule 703, the Court must first examine whether the documents used by Dr. Frank in forming his opinions are independently admissible. The statements by Gamblin are independently 20 1 admissible – i.e., not hearsay – because they constitute statements by a party-opponent. See Fed. R. 2 Evid. 801(d)(2). Therefore, the Court need not engaging in any Rule 703 balancing test, and the 3 evidence may be disclosed to the jury. 4 As for the scientific articles, it is likely that they fall within the learned treatise exception to 5 hearsay. See Fed. R. Evid. 803(18). Rule 803(18) provides that a statement contained in, e.g., a 6 treatise or periodical falls within the hearsay exception if the statement is relied on by the expert on 7 direct examination and “the publication is established as a reliable authority by the expert’s 8 admission or testimony.” Fed. R. Evid. 803(18). However, under the rule, the statements may be 9 read into evidence only and not admitted as an exhibit. See Fed. R. Evid. 803(18). Accordingly, if 10 Dr. Frank provides the necessary foundation, then the Court need not engage in any Rule 703 11 balancing test, and the relevant statements from the scientific articles may be read into evidence (but 12 not admitted as exhibits). 13 This leaves only the statements on the website of GAC – in particular, about one of its own 14 products GAC 100. It appears that Mr. Stuppin will claim that he used GAC 100 as part of his 15 painting process – and not, as Gamblin contends, an acrylic gel medium which, according to 16 Gamblin, was at least a partial cause of the yellowing. Based on the record submitted, these 17 statements from GAC are hearsay and they do not appear to be otherwise independently admissible. 18 Accordingly, under Rule 703, the statements may be disclosed to the jury “only if their probative 19 value in helping the jury evaluate the opinion substantially outweighs their prejudicial effect.” Fed. 20 R. Evid. 703 (emphasis added). The prejudice is typically that which would result from the jury’s 21 potential misuse of the information for substantive purposes. 22 Here, the probative value for allowing testimony as to this basis of Dr. Frank’s opinion 23 substantially outweighs any prejudice. See Exhibit 83 (Frank Report at 5). The Court, however, is 24 open to giving “a limiting instruction upon request, informing the jury that the underlying 25 information must not be used for substantive purposes.” Fed. R. Evid. 703, 2000 advisory 26 committee notes. 27 28 21 1 B. Defendant’s Exhibits 2 1. 3 Exhibit 110 consists of Mr. Gamblin’s expert report. Mr. Stuppin has objected to part of the Exhibit 110 4 report consistent with his first motion in limine. The Court has denied the first motion in limine. 5 The objection is overruled. 6 2. 7 Exhibit 51 is a brochure for Gamblin oil painting mediums. It is actually an exhibit that Mr. Exhibit 51 8 Stuppin submitted, but apparently Gamblin intends to rely on the evidence as well. Mr. Stuppin 9 appears to have no objection. Thus, the exhibit shall be admitted as evidence. 10 3. 11 Exhibit 116 is the expert report of Mr. Pernicone. Mr. Pernicone’s report itself is hearsay Exhibit 116 12 and therefore is not admissible. See Hunt v. City of Portland, No. 11-35600, 2012 U.S. App. LEXIS 13 22506, at *4 (9th Cir. Oct. 24, 2012) (“conclud[ing] that the [expert’s written] report is hearsay to 14 which no hearsay exception applies”). However, Mr. Pernicone may still offer opinions consistent 15 with the Court’s rulings on Mr. Stuppin’s second and third motions in limine. To the extent 16 Gamblin wishes to offer as evidence any of the exhibits attached to the report, a Rule 703 analysis 17 must be applied. Because there are numerous documents attached to the report, the Court shall not 18 undertake a document-by-document Rule 703 analysis. The analysis provided by the Court above 19 with respect to the Frank report should provide some guidance. The Court notes, however, that 20 some of the documents would appear to be independently admissible (e.g., Mr. Stuppin’s invoices 21 likely fall under the business records hearsay exception and the parties should meet and confer to 22 determine whether they can agree that the foundational requirements for the exception have been 23 met). 24 4. 25 Exhibit 119 consists of portions of Gamblin’s website. Mr. Stuppin has not objected to the 26 Exhibit 119 evidence. Thus, the evidence shall be admitted. 27 28 22 1 5. 2 Exhibit 109 is a bottle of Galkyd. Mr. Stuppin has reserved the right to make an objection 3 because the bottle “is old and may have been exposed to [an] unfavorable environment.” Docket 4 No. 94 (Letter at 3). The objection is overruled. Mr. Stuppin has not offered any basis to exclude 5 the evidence. Any contention that the bottle is old and may have been exposed to an unfavorable 6 environment goes to the weight of the evidence and not its admissibility. Exhibit 109 7 6. 8 Exhibit 106 consists of six photographs of a Stuppin painting, which were taken by Mr. 9 Stuppin’s expert, Dr. Frank. Mr. Stuppin objects on the basis that the exhibit is duplicative of one of 10 his own exhibits (Exhibit 83, which is Dr. Frank’s report and exhibits). In response, Gamblin notes 11 that the exhibits will be offered in the event that Dr. Frank and his report are excluded. As discussed 12 in conjunction with Gamblin’s second motion in limine, Dr. Frank may testify. The Court notes, 13 however, that Dr. Frank’s report itself is not admissible because it is hearsay but a Rule 703 analysis 14 would be applied to any facts or data on which Dr. Frank relied. Exhibit 106 15 16 VI. A. DISCOVERY Designations by Plaintiff 17 1. 18 Mr. Stuppin has designated certain testimony from the McMurray Deposition, and Gamblin McMurray Deposition 19 has asked for additional testimony to be given (McMurray Deposition 50:25-51:2). Mr. Stuppin 20 objects to that additional testimony. 21 Mr. Stuppin’s objection is overruled. Ms. McMurray’s opinion that Gamblin is a “great 22 company” has some probative value (albeit quite limited). Just as Mr. Stuppin should be able to 23 introduce Ms. Bennett’s poor opinion of Galkyd (see below), Gamblin should be able to introduce 24 Ms. McMurray’s favorable opinion, both of the product and/or the company. Furthermore, Rule 403 25 requires that the probative value of the evidence be substantially outweighed by the danger of unfair 26 prejudice. That standard has not been met here. 27 28 23 1 2. 2 Gamblin’s objection to Bennett Deposition 32:9-33:10 is sustained. Here, Ms. Bennett Bennett Deposition 3 testified: “I called . . . Gamblin . . . at one point about Galkyd Lite to say that I had just used it on a 4 painting, or a series of paintings, and that it was seeming to be – have a lot more color than usual, 5 and it was just much more amber and less transparent, and I believe it was Scott who indicated to me 6 that their resin supplier had changed, and that they were sorting things out . . . .” As discussed 7 above, the Court has ruled that it will allow evidence related to the change in Gamblin’s resin 8 supplier but only in conjunction with Dr. Frank’s testimony. 9 Gamblin’s objection to Bennett Deposition 38:12-25 is sustained in part and overruled in 10 part. Testimony about what others conveyed to her and what she told others is hearsay. The 11 testimony is otherwise admissible (i.e., testimony that she did not expect Galkyd to yellow during 12 her lifetime). 13 B. Designations by Defendant 14 1. 15 Mr. Stuppin’s objection to Interrogatory No. 16 is sustained. The list of damaged paintings Plaintiff’s Responses to First Set of Interrogatories 16 is not complete as Mr. Stuppin subsequently identified additional damaged paintings. It is the 17 Court’s understanding that there is an updated response to Interrogatory No. 16 that includes all 18 paintings at issue, which Gamblin may offer as evidence. 19 2. 20 Mr. Stuppin’s objection to Interrogatories Nos. 5 and 6 is overruled. Although Mr. Stuppin Plaintiff’s Responses to Second Set of Interrogatories 21 formally objected to the interrogatories on the ground that they exceeded the limit in Federal Rule of 22 Civil Procedure 33, he still decided to answer the interrogatories. Thus, he effectively waived his 23 objection, in spite of the fact that he claimed not to be making any such waiver. Furthermore, Mr. 24 Stuppin fails to identify how he would be prejudiced by admission of the evidence. 25 3. 26 Mr. Stuppin’s objections to Interrogatories Nos. 21, 22, and 23 are overruled. His objections 27 Plaintiff’s Responses to Third Set of Interrogatories that the interrogatories exceed the limit in Rule 33 and that they exceed the scope of the additional 28 24 1 discovery permitted by the Court are effectively waived. His Rule 403 objection has already been 2 addressed by the Court in Mr. Stuppin’s fourth motion in limine (regarding use of assistants). 3 4. 4 Mr. Stuppin’s objection to McMurray Deposition 48:12-25 is sustained. As Mr. Stuppin McMurray Deposition 5 argues, this testimony about invoices goes beyond the scope of the direct testimony offered by Mr. 6 Stuppin. Gamblin has not identified Ms. McMurray as one of its own witnesses. 7 As noted above, Mr. Stuppin’s objection to McMurray Deposition 51:1-2 is overruled. 8 9 10 VII. As the Court stated at the hearing, the parties are to exchange demonstratives and stipulate to their use in advance of trial. 11 12 DEMONSTRATIVES VIII. VOIR DIRE The parties have submitted joint additional proposed voir dire questions. See Docket No. 61. 13 The Court shall ask many of the questions; counsel shall also have an opportunity to ask questions 14 themselves. 15 16 IX. JURY INSTRUCTIONS The Court has submitted proposed jury instructions for the parties’ review. Comments on 17 the instructions, including but not limited to the future damages issue as discussed at the final 18 pretrial conference, are to be filed by March 1, 2013, at 4:00 p.m. 19 20 X. VERDICT FORM The Court shall address the verdict form after jury instructions have been resolved. As stated 21 at the hearing, the Court does not intend to give the jury special verdict forms; for the most part, it 22 shall give general verdict forms with limited exceptions (e.g., comparative fault). 23 24 IT IS SO ORDERED. 25 26 Dated: March 1, 2013 _______________________________ EDWARD M. CHEN United States District Judge 27 28 25

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