Surgical Instrument Service Company, Inc. v. Intuitive Surgical, Inc.

Filing 368

ORDER GRANTING 290 Motion in Limine No. 1 to Exclude Out-Of-Court Hospital Statements filed by Intuitive Surgical, Inc. Signed by Judge Araceli Martinez-Olguin on December 20, 2024. (amolc3, COURT STAFF) (Filed on 12/20/2024)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SURGICAL INSTRUMENT SERVICE
COMPANY, INC., et al.,

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Plaintiffs,

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v.

ORDER RE DEFENDANT’S MOTION
IN LIMINE NO. 1
Re: Dkt. No. 290

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INTUITIVE SURGICAL, INC.,

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United States District Court
Northern District of California

Case No. 21-cv-03496-AMO

Defendant.

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Before the Court is Defendant Intuitive Surgical, Inc.’s (“Intuitive”) motion in limine #1 to

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exclude out-of-court hospital statements. The Court resolved several motions in limine at the

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pretrial conference held November 26, 2024, but instructed Plaintiff Surgical Instrument Services

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Company, Inc. (“SIS”), to submit an evidentiary proffer in support of the asserted hearsay

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exception. See Minute Entry (ECF 316).1 SIS submitted its evidentiary proffer on December 11,

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2024. ECF 332. Intuitive submitted its response to the evidentiary proffer on December 18, 2024.

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ECF 358. Having read the papers filed by the parties and carefully considered their arguments

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therein and those made at the hearing, as well as the relevant legal authority, the Court hereby

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GRANTS Intuitive’s motion in limine #1, for the following reasons.
Federal Rule of Evidence 803(3) creates an exception to the hearsay rule for “[a] statement

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of the declarant’s then existing state of mind, emotion, sensation, or physical condition (such as

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intent, plan, motive, design, mental feeling, pain, and bodily health), but not including a statement

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of memory or belief to prove the fact remembered or believed[.]” “The bar applies only when the

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The Court resolved other motions in limine by Order entered on December 11, 2024. See Order
re Motions in Limine (ECF 330).

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statements are offered to prove the truth of the fact underlying the memory or belief.” Wagner v.

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Cnty. of Maricopa, 747 F.3d 1048, 1053 (9th Cir. 2013). Courts have found that “testimony

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concerning the motivation of customers for ceasing to deal with a business is admissible under the

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‘state of mind’ exception to the hearsay rule, Rule 803(3) of the Federal Rules of Evidence,

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provided that there is otherwise admissible proof that business was lost.” Discover Fin. Servs. v.

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Visa U.S.A. Inc., No. 04-CV-7844 BSJ DFE, 2008 WL 4560707, at *1 (S.D.N.Y. Oct. 9, 2008)

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(citations omitted).

United States District Court
Northern District of California

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Here, SIS proffers evidence to establish the foundational elements for the state of mind

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hearsay exception to certain identified out-of-court statements made by hospital representatives to

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Keith Johnson. See Johnson Decl. (ECF 332-2). SIS falls short of presenting otherwise

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admissible proof that it lost business. It only offers Johnson’s testimony that representatives of

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these hospitals told him “in words or substance” that they wanted to purchase repaired EndoWrists

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from Intuitive but could not “take the risk of being penalized or the pressure we would get from

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Intuitive Surgical.” Johnson Decl. ¶ 21 at 12-13. Johnson’s testimony is itself hearsay for which

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SIS has not offered a modicum of reliability. Thus, Johnson’s testimony cannot be used to prove

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the fact of lost opportunity.

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For the foregoing reasons, the Court GRANTS Intuitive’s motion in limine #1. SIS may

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not present to the jury the supposed views of hospitals through out-of-court statements that will

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not be tested through cross-examination.

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IT IS SO ORDERED.
Dated: December 20, 2024

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ARACELI MARTÍNEZ-OLGUÍN
United States District Judge

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