Monigan et al v. National Presto Industries et al

Filing 95

FINAL PRETRIAL SCHEDULING ORDER: Granted 56 defendants' Motion in Limine No.1, Granted 60 defendants' Limine No.2, GRANTED IN PART and DENIED IN PART re 71 plaintiffs' Motion in Limine No.1, Denying 74 plaintiffs' M otion in Limine No.2 , Denying 77 plaintiffs' Motion in Limine No.3. ORDER REFERRING CASE TO MAGISTRATE-JUDGE ZIMMERMAN FOR TRIAL PURPOSES. (Illston, Susan) (Filed on 1/15/2014) Modified on 1/16/2014 (ysS, COURT STAFF). Modified on 1/16/2014 (tfS, COURT STAFF).

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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MYERS MONIGAN and GEORGIA
MONIGAN,

No. C 12-3698 SI

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United States District Court
For the Northern District of California

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FINAL PRETRIAL SCHEDULING
ORDER

Plaintiffs,
v.
NATIONAL PRESTO INDUSTRIES and
WAL-MART STORES, INC.,
Defendants.

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On January 15, 2014, the Court held a final pretrial conference in the above captioned matter,
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which is set for jury trial beginning Tuesday, January 21, 2014. All parties were represented by counsel.
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The following matters were resolved:
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1.

Trial Judge Bernard Zimmerman: Because of a calendar conflict with a criminal trial,

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the undersigned will be unavailable to try this action as scheduled. All parties consented to have the
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matter tried by retired/recalled Magistrate Judge Bernard Zimmerman, and Judge Zimmerman is
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available to conduct the trial as scheduled. Consequently, Judge Zimmerman will be the trial judge for
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this action. The courtroom deputy will inform counsel which courtroom to report to, and may schedule
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a planning telephone conference call on Friday afternoon between counsel and Judge Zimmerman.
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2.

Voir dire: There shall be a jury of seven members. Each side shall have up to four

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peremptory challenges. The court will conduct general voir dire, and counsel for each side shall have
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up to 15 minutes total to question the panel. Judge Zimmerman will further direct counsel as to his
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preferred method of conducting the voir dire process.
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Jury instructions: Counsel have submitted joint proposed jury instructions.

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Trial exhibits: Counsel represented that they have stipulated to all exhibits for trial

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purposes. Accordingly, counsel may bring the exhibits with them to the first day of trial. The exhibits

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shall be premarked and in binders with numbered tabs separating 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

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be included in the set of exhibits for the court.

United States District Court
For the Northern District of California

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5.

Timing of trial: The parties estimated that the trial should take approximately 4-5 days.

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Based on this estimate, each side shall have 30 minutes for opening statements; each side shall have

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8 hours total for presentation of evidence, which includes direct and cross-examination and presentation

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of all exhibits; and each side shall have up to 45 minutes for closing argument.

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6.

Trial schedule: Monday, January 20, 2014 is a federal holiday. Consequently, trial will

begin on Tuesday, January 21, 2014. The daily trial schedule will be determined by Judge Zimmerman.

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7.

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PLAINTIFFS’ MOTION IN LIMINE NO. 1 to exclude evidence of Myers Monigan’s prior

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criminal convictions. GRANTED IN PART and DENIED IN PART: evidence of the 2011 conviction

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will be allowed; evidence related to the 1993 convictions will be excluded.

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

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Defendants seek to introduce evidence showing that plaintiff was convicted of three felonies,

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one in 2011 (for Controlled Substance Abuse Fraud) and two in 1993 (one for possession of cocaine and

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one for attempting to escape jail). “Under Rule 609(a), evidence of a prior conviction may be admitted

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for impeachment purposes if the probative value out-weighs the prejudicial effect of admission.” United

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States v. Martinez-Martinez, 369 F.3d 1076, 1088 (9th Cir. 2004). The probative value of the 2011

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conviction outweighs the potential prejudice. The 2011 conviction for Controlled Substance Abuse
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Fraud is relevant to Mr. Monigan’s credibility as it is a crime that involves deceit. In addition, the

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evidence is relevant to Mr. Monigan’s mental state during the incident as it shows that he was

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potentially under the influence during the incident, and it is relevant to his damages because it

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potentially negates Mr. Monigan’s claims of pain and suffering following the incident.

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Although FRE 609 allows a witness to be impeached by evidence of a criminal conviction, Rule

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609(b) states that if more than 10 years have passed since the witness’s conviction, then the conviction

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is only admissible if its probative value substantially outweighs its prejudicial effect. The two

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convictions in 1993 are over 20 years old, and the convictions are not very probative particularly in light

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of the fact that defendants can already raise the 2011 conviction.

United States District Court
For the Northern District of California

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Accordingly, the parties are precluded from introducing evidence about Mr. Monigan’s two 1993

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convictions, but are not foreclosed from offering evidence concerning the 2011 conviction. At the

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Pretrial Conference, defendants agreed to limit the documentary evidence concerning the 2011

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conviction to the judgment of conviction.

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PLAINTIFFS’ MOTION IN LIMINE NO. 2 to exclude evidence of Myers Monigan’s
narcotics addition and CURES report. DENIED.

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Plaintiffs argue that evidence of Mr. Monigan’s narcotics addiction and CURES (Controlled

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Substance Utilization Review and Evaluation System) report1 should be excluded pursuant to FRE 402

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and 403. Mr. Monigan’s CURES report shows that in the six weeks prior to the accident, Mr. Monigan

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filled four prescriptions for oxycodone issued by two different doctors, including one prescription that

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was issued a week before the accident. Although this evidence of narcotics abuse may be prejudicial,

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it is relevant to Mr. Monigan’s mental state during the night of the incident because it is possible he was

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under the influence of these narcotics at that time; it is relevant to Mr. Monigan’s credibility because

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this evidence shows that he may have been deceitful in obtaining these narcotics; and it is relevant to

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Mr. Monigan’s damages as this evidence is potentially consequential concerning Mr. Monigan’s claims

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The CURES database is administered by the California Department of Justice and was created
to help doctors and pharmacies make better prescribing decisions. A CURES report is a listing of all
the controlled substances dispensed to a particular person in California.
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of pain and suffering following the incident.

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PLAINTIFFS’ MOTION IN LIMINE NO. 3 to exclude evidence of the instruction booklet
and warning tag on the cord of the product. DENIED.

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Plaintiffs argue that evidence of the product’s instruction booklet and warning tag should be

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excluded pursuant to FRE 402 and 403. Defendants correctly argue that if plaintiffs want to admit the

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product into evidence they must admit the product as a whole. The warning tag and instruction booklet

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are parts of the product. Moreover, these parts of the product are relevant to the foreseeable use of the

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product.

United States District Court
For the Northern District of California

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DEFENDANTS’ MOTION IN LIMINE NO. 1 to exclude from trial any evidence pertaining

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to lost wages or lost future earning potential pursuant to Fed. R. Civ. P. 37(c)(1). GRANTED

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(UNOPPOSED)

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Defendants argue that the Court should preclude from trial any evidence pertaining to lost wages

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or lost future earning potential because plaintiffs failed to provide calculations for these theories of

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damages as required by Rule 26(a)(1). Rule 26 requires a party to make certain initial disclosures

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“without awaiting a discovery request.” Fed. R. Civ. P. 26(a)(1)(A). The rule expressly requires that

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the plaintiff provide to the other parties “a computation of each category of damages claimed by the

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disclosing party.” Fed. R. Civ. P. 26(a)(1)(A)(iii). The plaintiff is also required to “make available for

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inspection and copying . . . the documents or other evidentiary material . . . on which each computation

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is based.” Id. Rule 26(e) creates an obligation for parties to supplement the information disclosed under

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Rule 26(a) in a timely manner, including its computation of damages. Fed. R. Civ. P. 26(e).

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Rule 37(c)(1) states that where a party fails to provide the information “required by Rule 26(a)

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or (e), the party is not allowed to use that information or witness to supply evidence on a motion, at a

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hearing, or at a trial, unless the failure was substantially justified or is harmless.” Fed. R. Civ. P.

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37(c)(1). The burden of showing that the failure to disclose was substantially justified or harmless lies

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with the party facing sanctions. R & R Sails, Inc. v. Insurance Co. of Pennsylvania, 673 F.3d 1240,

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1246 (9th Cir. 2012). Rule 37(c)(1) sanctions have been described “as a self-executing, automatic
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sanction to provide a strong inducement for disclosure of material.” Yeti by Molly, Ltd. v. Deckers

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Outdoor Corp., 259 F.3d 1101, 1106 (9th Cir. 2001).

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In their initial disclosures, plaintiffs stated that they were seeking, among other things, damages

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for lost wages and future earning potential. However, plaintiffs did not provide calculations for these

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requested damages. Through written discovery, defendants sought further information from plaintiffs

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about their claim for lost wages. However, plaintiffs only replied: “Discovery is ongoing. According

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to proof” in both their original response and in an amended response to defendants’ written discovery.

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Plaintiffs do not oppose this motion, and, thus, have not shown that their failure to disclose the required

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calculations was substantially justified or harmless. Moreover, it appears that plaintiffs are self-

United States District Court
For the Northern District of California

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employed, so they should have had the ability to turn over the requested information.

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DEFENDANTS’ MOTION IN LIMINE NO. 2 to exclude from trial any evidence pertaining
to future medical expenses pursuant to Fed. R. Civ. P. 37(c)(1) . GRANTED (UNOPPOSED).

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Similar to defendants’ first motion in limine, defendants argue that the Court should preclude

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from trial any evidence pertaining to future medical expenses because plaintiffs failed to provide a

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calculation for this theory of damages as required by Rule 26(a)(1). In their initial disclosures, plaintiffs

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state that they are seeking, among other things, damages for future medical expenses. However,

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plaintiffs did not provide a calculation for that theory of damages. In the Joint Pretrial Conference

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Statement, plaintiffs state that Dr. Gladstone will testify about the need for future medical care.

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However, the discovery provided by Dr. Gladstone and Dr. Greenberg do not provide any detail about

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plaintiffs’ future medical expenses. Plaintiffs do not oppose this motion, and, thus, have not shown that

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their failure to disclose the required calculation was substantially justified or harmless.

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IT IS SO ORDERED.
Dated: January 15, 2014
______________________________
SUSAN ILLSTON
United States District Judge

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