Faulkner v. Lucille Packard Salter Children's Hospital
Filing
97
FINAL PRETRIAL SCHEDULING ORDER granting 70 Motion in Limine; granting in part and denying in part 71 Motion in Limine; granting in part and denying in part 72 Motion in Limine; granting in part and denying in part 74 Motion in Limine; granting in part and denying in part 75 Motion in Limine; granting in part and denying in part 81 Motion in Limine. (Illston, Susan) (Filed on 1/18/2023)
Case 3:21-cv-00780-SI Document 97 Filed 01/18/23 Page 1 of 6
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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BETHAN FAULKNER.,
Plaintiff,
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Case No. 21-cv-780 SI
v.
LUCILE SALTER PACKARD
CHILDREN’S HOSPITAL AT
STANFORD,
FINAL PRETRIAL SCHEDULING
ORDER
Re: Dkt. Nos. 69-75, 81
United States District Court
Northern District of California
Defendant.
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On January 17, 2023, the Court held a final pretrial conference in the above captioned matter,
which is set for jury trial beginning February 1, 2023. All parties were represented by counsel. The
following matters were resolved:
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1.
Number of jurors and challenges: There will be a jury of 8 members. Each side
shall have 4 peremptory challenges.
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2.
Voir dire: The Court will conduct general voir dire, including various of the
questions requested by counsel in their proposed additional voir dire filings. Counsel for each side
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shall have up to 20 minutes total to question the panel. The parties are directed to meet and confer
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concerning a neutral, non-argumentative statement of the case which can be read to the jury panel
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at the beginning of the voir dire process; this statement shall be provided to the Court no later
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than Friday, January 27, 2023, at 3:00 p.m.
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Case 3:21-cv-00780-SI Document 97 Filed 01/18/23 Page 2 of 6
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3.
Jury instructions: The Court received proposed jury instructions from the parties,
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reflecting some differences and disagreements of the parties. The Court will review same and
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inform counsel prior to closing argument which substantive instructions will be given.
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4.
Trial exhibits: No later than Friday, January 27, 2023, at 3:00 p.m. the parties shall
submit their trial exhibits, in binders with numbered tabs separating and identifying each exhibit.
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The Court shall be provided with three sets (the originals for the file, one set for the Court and one
set for the witnesses).
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United States District Court
Northern District of California
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5.
Timing of trial: The parties have stipulated to bifurcate trial of liability/damages
and punitive damages. The parties further estimate that the trial should take 7-10 days. Based on
these estimates, and on the fact that the current witness list will be substantially reduced to eliminate
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cumulative testimony, the Court will set the matter for an 8 day trial, as follows: each side shall
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have up to 30 minutes to present opening statements; each side shall have 11 hours total for
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presentation of evidence, which includes direct and cross-examination and presentation of all
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exhibits, during the damages/liability phase; each side shall have up to 1 hour for closing argument;
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and, if punitive damages are implicated, each side shall have one additional hour for opening
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statement, presentation of evidence and argument.
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6.
Trial schedule: Jury selection will begin on February 1, 2023, at 9:00 a.m. The trial
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day runs from 9:00 a.m. until 3:30 p.m., with a 15 minute break at 10:00 a.m., a 30 minute break at
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noon and a 15 minute break at 2:00 p.m., all times approximate. The Court does not hear trials on
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Fridays, although juries may continue to deliberate on Fridays. The parties should be prepared to
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give opening statements on February 1. 2023.
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Case 3:21-cv-00780-SI Document 97 Filed 01/18/23 Page 3 of 6
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Motions in limine: Plaintiff filed four motions in limine. Dkt. No. 81. Defendant
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has filed seven motions in limine. Dkt. Nos. 69-75. At the pretrial conference, plaintiff asked the
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Court to defer ruling on defendant’s Motions in Limine No. 1 and No. 5, pending submission of
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plaintiff’s pared down witness list (due January 20 at 3:00 p.m.) and a declaration from defense
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counsel regarding the policies that plaintiff alleges defendant wrongfully withheld during discovery.
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The Court therefore defers ruling on Dkt. Nos. 69 and 73 at this time.
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United States District Court
Northern District of California
7.
After consideration of the arguments made in the briefs and at the pretrial conference, the
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Court rules on the remaining motions in limine as follows:
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----Plaintiff’s Motion No. 1 (limiting opening statement to evidence in record of case): GRANTED.
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Defendant does not object, to the extent both parties are held to the same standard. With regard to
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opening statements, counsel shall only refer to evidence that they are certain will be admitted during
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the course of trial; if there is any question about this, counsel shall approach the bench outside of
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the presence of the jury before referring to the evidence in openings. Demonstratives may be used
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only if previously reviewed and approved by opposing counsel or the court.
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----Plaintiff’s Motion No. 2 (precluding David Kuo from testifying as a witness): DENIED. Kuo
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has firsthand knowledge that is relevant to one of the main reasons defendant gave for terminating
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plaintiff.
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----Plaintiff’s Motion No. 3 (striking expert report and precluding David Rosenberg, M.D., from
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testifying): DENIED, except that Dr. Rosenberg shall testify “solely to contradict or rebut evidence
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on the same subject matter” to which plaintiff’s three non-retained experts testify at trial. See Fed.
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R. Civ. P. 26(a)(2)(D); see also Taylor v. N. Inyo Hosp., No. 15-cv-001607-LJO-JLT, 2017 WL
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1273840, at *6 (E.D. Cal. Feb. 17, 2017) (striking expert rebuttal designation of Dr. Rosenberg “to
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the extent that Dr. Rosenberg offers affirmative opinions that exceed proper rebuttal evidence”).
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Dr. Rosenberg’s report shall not be admitted into evidence, as the report contains affirmative
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opinions that exceed proper rebuttal evidence. At trial, Dr. Rosenberg may not offer any advocacy
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in the guise of opinions. See, e.g., Dr. Rosenberg’s Opinion #1. He shall not offer any opinions
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outside of those contained in his report, unless the testimony of plaintiff’s non-retained experts
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covers additional topics.
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Case 3:21-cv-00780-SI Document 97 Filed 01/18/23 Page 4 of 6
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----Plaintiff’s Motion No. 4 (precluding collateral source references): GRANTED, as to payments
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from insurance or other collateral sources that plaintiff has received; however, the fact of their
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existence (such as the existence of plaintiff’s health insurance) may be used as a line of questioning
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in the manner defendant describes in its opposition, if defendant first seeks clearance from the Court
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outside of the presence of the jury.
United States District Court
Northern District of California
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----Defendant’s Motion No. 1 (to exclude undisclosed witnesses and documents), Dkt. No. 69: The
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Court will defer ruling until after the parties have filed a revised witness list, due January 20, 2023,
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at 3:00 p.m.
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----Defendant’s Motion No. 2 (to exclude any reference to Joseph Wilson’s State Bar reproval), Dkt.
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No. 70: GRANTED. Plaintiff may question Mr. Wilson about this time period in his life, such as
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about his father’s illness, to the extent it is relevant to any action/inaction he took with respect to
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plaintiff’s HR complaints; but plaintiff may not mention the State Bar reproval or State Bar
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disciplinary proceedings. The State Bar reproval itself is more prejudicial than it is probative under
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Federal Rule of Evidence 403.
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----Defendant’s Motion No. 3 (to exclude reference to dismissed or unpled claims), Dkt. No. 71: At
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the pretrial conference, plaintiff’s counsel confirmed that she would not raise her dismissed FEHA
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and FMLA claims at trial.
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Discrimination, and Retaliation Policy, which may provide context for plaintiff’s claims. DENIED,
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without prejudice to specific objections to specific question at the time of trial, as to the request
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to preclude plaintiff from discussing “harassment.” The Court DEFERS ruling on the request to
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exclude plaintiff’s requested jury instructions.
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----Defendant’s Motion No. 4 (to exclude (1) Victoria McLaughlin and (2) her one-page handwritten
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summary), Dkt. No. 72: DENIED, as to the motion to exclude Ms. McLaughlin from testifying,
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except that Ms. McLaughlin may testify only about opinions “formed during the course of
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treatment.” See Goodman v. Staples The Off. Superstore, LLC, 644 F.3d 817, 826 (9th Cir. 2011).
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Ms. McLaughlin shall not testify to statements about which Ms. McLaughlin does not have firsthand
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knowledge, such as statements that “staff and nurses she managed were thriving under her
DENIED, as to the motion to exclude the LPCH Harassment,
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United States District Court
Northern District of California
Case 3:21-cv-00780-SI Document 97 Filed 01/18/23 Page 5 of 6
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supervision” and that plaintiff’s “superiors suddenly dismissed her.” GRANTED, as to the motion
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to exclude Ms. McLaughlin’s one-page handwritten summary. Plaintiff does not oppose exclusion
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of the one-page summary, but plaintiff may use the summary at trial for the purpose of refreshing
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Ms. McLaughlin’s recollection.
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----Defendant’s Motion No. 5 (to exclude James W. Potts, JD), Dkt. No. 73: The Court will defer
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ruling until after defense counsel files a declaration (due January 20, 2023, at 3:00 p.m.) regarding
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the policies that were not produced.
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----Defendant’s Motion No. 6 (to exclude evidence, argument, or mention of (1) any settlement or
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judgment involving LPCH in unrelated lawsuits, (2) post-litigation settlement discussions, or (3) the
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existence of any pending lawsuits against LPCH): GRANTED, without prejudice to plaintiff making
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an offer of proof at the time of trial, outside of the presence of the jury, as to what evidence of prior
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lawsuits she seeks to have admitted.
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----Defendant’s Motion No. 7 (to exclude reference to prior NICU patient care managers at LPCH):
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GRANTED, without prejudice to plaintiff making an offer of proof at the time of trial, outside of
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the presence of the jury, as to what reference to prior patient care managers she seeks to have
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admitted. Plaintiff shall likewise seek permission from the Court, outside of the presence of the
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jury, before referring to prior patient care managers in her opening statement. Plaintiff may “set the
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stage” as background for the type of job that plaintiff was taking on in this role, but plaintiff may
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not refer to the reasons for other patient care managers’ termination without the Court’s permission.
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8.
Other Matters: The parties shall submit a reduced, realistic witness list no later
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than Friday, January 20, 2023. For each witness, the list must provide a “brief statement
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describing the testimony to be given,” with sufficient clarity that a determination as to the
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cumulative nature of the testimony may be made.
Also by Friday, January 20, 2023, defense
counsel shall file a declaration explaining which HR policies were requested by plaintiff, which
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policies were produced and why the other policies referred to by plaintiff’s counsel were not
produced previously.
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Case 3:21-cv-00780-SI Document 97 Filed 01/18/23 Page 6 of 6
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IT IS SO ORDERED.
Dated: January 18, 2023
______________________________________
SUSAN ILLSTON
United States District Judge
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United States District Court
Northern District of California
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