In Re Pacific Fertility Center Litigation

Filing 806

ORDER RE: PRETRIAL CONFERENCE NO. 3. Signed by Magistrate Judge Jacqueline Scott Corley on 5/19/2021. (ahm, COURT STAFF) (Filed on 5/19/2021)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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IN RE: PACIFIC FERTILITY CENTER
LITIGATION

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Case No. 18-cv-01586-JSC
ORDER RE: PRETRIAL
CONFERENCE NO. 3

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Re: Dkt. Nos. 783, 785, 799, 800, 802

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United States District Court
Northern District of California

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This Order confirms the Court’s rulings at the Third Pretrial Conference on May 18, 2021.

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1. Chart’s Objections to Exhibits (Dkt. No. 783)

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First, Chart objects to 74 of Plaintiffs’ exhibits as improper evidence of “other

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occurrences” which was the subject of Chart’s Motion in Limine No. 1. The Court only ruled on

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those exhibits which Plaintiffs presently intend to offer as set forth below. If Plaintiffs advise

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Chart that they intend to rely on any of the other exhibits, the Court can address the issue at one of

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the 8:00 a.m. conferences prior to bringing the jury into the courtroom.

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Chart’s knowledge of a defect with the controller.

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Trial Exhibits 219 and 201—Objection overruled. These emails are relevant to

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Trial Exhibits 217, 239, 223, 280, 287—Objection overruled. These emails are

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relevant to Chart’s knowledge of a defect with the controller and as they are emails

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between Chart employees, to the extent they are offered for the truth of the matter,

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they are admissible as statements of an employee of a party opponent. See Fed. R.

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Evid. 801(d)(2)(D); Weil v. Citizens Telecom Servs. Co., LLC, 922 F.3d 993, 999

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(9th Cir. 2019).

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Trial Exhibit 206—Objection overruled. These emails are relevant to show

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Chart’s knowledge of potential damage to the tank contents from low level liquid

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nitrogen, not as a substantially similar incident and also non-hearsay as a statement

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of a party-opponent. See Fed. R. Evid. 801(d)(2)(D); Weil, 922 F.3d at 999.

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Second, Chart objects to seven trial exhibits as a basis for any “state of mind” testimony by

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Plaintiffs’ expert Dr. Anand Kasbekar. Chart appears to be seeking an order precluding Plaintiffs

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from “offer[ing] ‘opinion’ testimony from Kasbekar as to his belief regarding the content and

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meaning of Chart’s discovery responses, historical Chart documents and emails, and what such

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documents allegedly reveal about Chart’s actions and motives.” (Dkt. No. 783 at 3.) To the
extent that Chart is seeking to limit expert testimony, and, in particular, Dr. Kasbekar’s opinion

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United States District Court
Northern District of California

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no. 6, the motion is denied as untimely without explanation. Chart can cross-examine Dr.

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Kasbekar about his opinion. With respect to Chart’s objections to the particular exhibits, the Court

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ruled as follows:

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Exhibit 2 – Objection overruled. However, Dr. Kasbekar’s may not testify as set

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forth at page 37 of his report that Chart’s representation that the bend was

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manufactured was “misleading,” Dr. Kasbekar can testify to his understanding and

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what he was told as an explanation or context for the testing that was done or not

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done, but he may not characterize Chart’s statement as “misleading.”

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Exhibits 5, 192, 208 – Objections overruled for the reasons stated on the record.

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Exhibits 234, 275, 276 – Objections sustained for the reasons stated on the record.

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2. Plaintiffs’ Objection to Chart’s Exhibits (Dkt. No. 785)

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Plaintiffs raise only one objection to Chart’s exhibits which is an authenticity objection to

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exhibit as to Exhibit 360. This objection is sustained unless and until Chart meets and confers

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with Plaintiffs and makes a proper authenticity and relevance showing.

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3. Moving Trial Exhibits into Evidence

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At the beginning of a witness’ testimony, the parties shall move into evidence all the

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exhibits they anticipate using with that witness.

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4. Demonstrative Exhibits (Dkt. Nos. 799, 800)

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Each side raised issues regarding the others’ proposed demonstrative exhibits. Chart will

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advise Plaintiffs by noon on May 19 which demonstratives they plan to use in their opening

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statement. Chart shall not include any reference to the tank “warranty” in its opening statement or

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on its demonstratives. Plaintiffs’ objections to the “snowball” photo, use of a video of Dr. Miller’s

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test, and any reference to Elizabeth Balassone are sustained. Plaintiffs’ objections regarding the

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multiple alarm listing, back-dating reference, and statement that “Dr. Conaghan institutes a

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manual monitoring policy for Tank 4, against his own lab’s protocols,” and the blank “digital

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evidence” column in exhibit are overruled.
Chart’s objections to Plaintiffs’ demonstrative exhibit are overruled.

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United States District Court
Northern District of California

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5. Jury Instructions

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The Court made preliminary rulings regarding jury instructions 14, 15, 16, 19, 24, and 25.

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As the Court stated, there will be a fulsome discussion of the jury instructions at the charging

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conference during trial.

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The parties have stipulated that Ninth Circuit Model Jury Instruction No. 1.5 be given at

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the start of the trial, but have not provided a draft instruction. (Dkt. No. 762 at 2.) The parties

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shall meet and confer and jointly file a proposed instruction by May 21, 2021 at noon.

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6. Opening Statements

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Opening statements will begin at 8:30 a.m. on Monday, May 24. Each side is limited to an

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hour. Plaintiffs shall have their first witness(es) immediately ready to testify following opening

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statements.

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This Order disposes of Docket Nos. 783, 785, 799, 800, 802.

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IT IS SO ORDERED.

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Dated: May 19, 2021

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JACQUELINE SCOTT CORLEY
United States Magistrate Judge

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