Pooshs v. Phillip Morris USA, Inc., et al.

Filing 310

Second final pretrial order by Judge Hamilton. (pjhlc2, COURT STAFF) (Filed on 2/15/2013)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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NIKKI POOSHS,
Plaintiff,

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v.

SECOND FINAL PRETRIAL ORDER

PHILLIP MORRIS USA, INC., et al.,

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For the Northern District of California

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United States District Court

No. C 04-1221 PJH

Defendants.
_______________________________/

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Pursuant to Rule 16(e) of the Federal Rules of Civil Procedure, this second final

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pretrial order is hereby entered and shall control the course of the trial, along with the

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December 5, 2012 preliminary final pretrial order, unless modified by a subsequent order.

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On February 13, 2013, the court heard argument in the following motions, and
hereby rules as follows.

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1.

Defendants’ Motion for Evidentiary Sanctions

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As stated at the hearing, the motion is DENIED and GRANTED in part. With regard

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to the witness list, the motion is denied with the exception of the motion as to Dr. Valerie

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Yerger. The motion is granted as to Dr. Yerger, who may not testify as an expert witness

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(for the reasons stated in the December 5, 2012 order re defendants’ motions to exclude

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expert opinions and testimony); who may not testify as a custodian of records, because she

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is not a custodian of records; and who may not testify as a fact witness, because she does

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not have personal knowledge of relevant facts.

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With regard to plaintiff’s deposition designations, the court finds that they are still not

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usable, and must be resubmitted, as stated at the hearing, to eliminate all references to

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evidence the court previously found inadmissible, including but not limited to testimony or

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evidence re “candy cigarettes,” the “DOJ action,” and alleged tortious conduct after

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December 31, 1987. The request for an award of expenses is denied.

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2.

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Defendants’ Motion to Enforce Order Permitting Medical-Expense Discovery
Discovery, and December 20, 2012, Statement re Need for Discovery

As stated at the hearing, the motion is GRANTED in part and DENIED in part. All

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requests regarding production of documents are granted. At the hearing, plaintiff’s counsel

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stated that plaintiff would provide copies of signed authorizations “by the end of the week.”

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All documents shall be produced within 30 days thereafter. The request for a further

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deposition of Dr. Barry Horn is denied.
With regard to the evidence of past medical expenses, the evidence will be

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For the Northern District of California

United States District Court

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presented to the jury in accordance with Howell v. Hamilton Meats & Provisions, Inc., 52

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Cal. 4th 541 (2011). With regard to the reasonable value of future medical expenses, the

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parties shall meet and confer regarding a procedure for presenting the evidence to the jury,

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and, no later than 30 days following the date all documents are produced, shall submit

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either a stipulation, or two separate proposals (if they are not able to agree on the

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procedure).

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3.

Defendant RJ Reynolds Tobacco Company’s Motion in Limine No. 3 re
Comparative Fault

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The court deferred ruling on this motion in the preliminary final pretrial order,

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pending receipt of supplemental briefing by the parties on the propriety of the allegation in

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the complaint that plaintiff “complains of defendants, and each of them, for no more than

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50% of her total compensatory damages assessed by the fact finder” and the prayer for

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“general damages according to proof and applicable law at trial up to 50% of the total

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amount assessed by a fact finder.” As an initial matter, the court agrees with plaintiff that

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this is not a subject that is appropriate for a motion in limine. However, because the jury

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instructions and verdict forms depend in part on the resolution of this issue, it must be

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resolved prior to trial.

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The court finds that the motion must be GRANTED, as follows. First, it is clear that
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comparative fault (like contributory negligence) is an affirmative defense that defendants

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have the burden of pleading and proving, and that only they can raise. See, e.g., Marich v.

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MGM/UA Telecomm, Inc., 113 Cal. App. 4th 415, 424 (2003). Here, defendants have not

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alleged comparative fault as an affirmative defense, and they oppose any instruction to the

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jury on comparative fault. However, it appears that defendants’ intent may be to argue to

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the jury that not only are they not liable for plaintiff’s injuries but that plaintiff bears

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responsibility for her own injuries, which is in essence a comparative fault argument. On

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the other hand, plaintiff’s attempt to pre-apportion liability appears designed to invite a

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compromise verdict, which is equally impermissible given that her complaint does not plead
that she contributed to her own injuries and in light of the absence of expert evidence

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For the Northern District of California

United States District Court

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establishing that she is 50% responsible for her injuries.
Accordingly, absent introduction of this defense by defendants and absent any

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expert evidence previously disclosed to defendants, plaintiff will not be permitted to

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introduce evidence or to testify regarding her belief that she bears some percentage of

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responsibility for her own injuries. If, however, defendants put on evidence at trial to

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support an argument that plaintiff is responsible for her own injuries, and if that evidence

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supports a finding that defendants are in essence arguing a comparative fault affirmative

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defense, even though not alleged, the court will be required to instruct the jury on

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comparative fault with a CACI 405-type instruction.
In addition, if at any time prior to trial (not within two weeks as stated at the hearing),

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any party locates authority – from a California court or any federal court – supporting the

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giving of a comparative fault instruction where the only mention of comparative fault is in

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the prayer for relief in the complaint and/or where it has not been asserted by a defendant,

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the court will consider that authority. The court will not accept any further briefing on this

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issue.

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4.

Defendants’ Motion for Partial Summary Judgment re the First Cause of
Action for Negligence

In the first cause of action in the complaint, plaintiff alleges that “cigarettes –
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recklessly and negligently manipulated, manufactured, marketed, advertised, distributed

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and sold by [defendants] – were a substantial contributing factor in causing” her injuries,

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and also that defendants had a “duty to warn.” Cplt ¶¶ 26-29.

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Defendants contend that negligent “manipulation” means negligent design, a claim

that negligent “marketing, advertising, distribution, or sale” does not appear to differ

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materially from the seventh cause of action for negligent misrepresentation; and that any

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claim of negligent failure-to-warn does not differ from the other failure-to-warn claims.

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Thus, defendants assert, the court’s order dismissing all design and misrepresentation

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claims, but not the failure-to-warn claims, necessarily addressed all viable negligence

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For the Northern District of California

that is no longer in the case; that negligent “manufacture” is not supported by any facts;

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United States District Court

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claims that plaintiff had asserted.

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In response, plaintiff asserts that the first cause of action is a “garden-variety” or

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“general” negligence claim, which must be viewed from “the totality of the circumstances,”

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and that individual acts cannot be segregated. At the hearing, the court instructed plaintiff’s

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counsel to submit a two-page letter brief citing cases supporting this “general” negligence

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theory. Plaintiff’s brief shall be filed no later than February 27, 2013, and any response by

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defendants shall be filed no later than March 13, 2013.

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5.

Hill & Knowlton

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In addition, the negligence and concealment claims asserted against defendant Hill

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& Knowlton are found in the first and fifth causes of action. Plaintiff admits that she never

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asserted a negligent failure to warn claim against Hill & Knowlton, and as with the other

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defendants, she contends that what remains of the negligence cause of action is a claim of

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“general” or “garden variety” negligence. Hill & Knowlton have moved for summary

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judgment on the negligence claim for the same reasons as the other defendants, and have

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additionally moved for summary judgment on the concealment claim. The court granted

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approval for this additional motion and directed plaintiff to file a response, not to exceed 15

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pages, to the issues raised in the Hill & Knowlton motion. Plaintiff’s response shall be filed

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no later than February 27, 2013, and any response by Hill & Knowlton, not to exceed 15
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pages, shall be filed no later than March 13, 2013.

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Following the supplemental briefing, the court will issue a separate order regarding

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defendants’ motion for summary judgment on negligence, and the claims asserted against

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Hill & Knowlton.

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IT IS SO ORDERED.
Dated: February 15, 2013
______________________________
PHYLLIS J. HAMILTON
United States District Judge

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For the Northern District of California

United States District Court

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