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

Filing 387

ORDER. Signed by Judge Hamilton on 6/2/2014. (pjhlc1, COURT STAFF) (Filed on 6/2/2014)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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For the Northern District of California

United States District Court

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NIKKI POOSHS,

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Plaintiff,
v.

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ORDER

PHILLIP MORRIS USA, INC., et al.,

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No. C 04-1221 PJH

Defendants.
_______________________________/

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On March 27, 2014, the court conducted a further final pretrial conference. At that

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time, the court directed the parties to meet and confer, and prepare a joint list of summaries

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of rulings contained in a series of pretrial orders (Docket Nos. 229, 288, 289, 310, 319,

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320, 337, 364). The court further directed the parties to provide exemplars of specific

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evidence as to which the parties disagree regarding admissibility in the categories of

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exhibits, written discovery designations, witnesses, and deposition designations (based on

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the objections previously submitted by defendants), and to provide argument supporting

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each party's position with regard to admissibility, with a view towards enabling the court to

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rule on categorical objections. Finally, the court directed plaintiff to make an offer of proof

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as to post-1969 evidence that does not relate to advertising or promotion, to be offered to

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support plaintiff's concealment claim.

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The deadline for these submissions was May 27, 2014. On May 21, 2014, plaintiffs

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filed an "amended" witness list, an "amended" list of written discovery designations, and an

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"amended" list of deposition designations. These "amended" lists were filed without leave

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of court, and apparently without prior notice to defendants. On May 27, 2014, the parties

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filed a joint list of summaries of rulings, but only defendants contributed to the categorical

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objections. In addition, plaintiff filed a 44-page offer of proof, accompanied by a 12-page

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declaration and 101 exhibits.

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The plaintiff's "amended" witness list and discovery and deposition designations are

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STRICKEN. Plaintiff did not seek leave of court to file them, and the court made clear at

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the March 27, 2014 hearing that it was endeavoring to devise a method of ruling on
evidence based on the plaintiff's prior submissions and the defendants' prior objections. If

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For the Northern District of California

United States District Court

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the court is able to enter a ruling on categorical objections, plaintiff will be permitted to file

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final amended lists and designations which take into account any limitations imposed by the

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evidentiary rulings.

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With regard to the joint list of summaries of rulings, the court directed the parties at

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the March 27, 2014 hearing to go through the eight orders, one by one, and list under each

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order the rulings contained therein. In their submission, the parties indicate that for the

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court's "ease of reference," they have organized the list "topically" rather than "strictly

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chronologically." The court prefers a list as described at the hearing, and will reorganize

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the list as part of its review of the accuracy of the representations regarding the content of

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the rulings.

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With regard to the categorical objections, the court requested a joint submission and

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was also anticipating a list of representative examples in the categories of exhibits, written

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discovery designations, witnesses, and deposition designations. Instead, the submission

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was made by defendants only, and while defendants have provided categorical objections

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to specific items of proposed testimony to be given by plaintiff's experts Dr. Farone, Dr.

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Smith, and Dr. Horn, as well as objections to two categories of "exhibits," the remaining

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objections are set forth as to 13 “subject” categories.

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Once again, the court does not have the time, resources or inclination to read every
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single exhibit, discovery designation and deposition in this document intensive case prior to

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trial. Additionally, in the dozens of rulings that this court has already made on the various

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motions for summary judgment and motions in limine, the court has already decided that

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evidence about design defects or candy cigarettes, for example, is not admissible and there

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is no need for the court to simply reiterate those rulings. Nor will the court reconsider those

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rulings. Rather, to the extent that plaintiff continues to designate evidence in her various

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lists that effectively ignores those prior rulings, the court made it clear that there were only

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two options: 1) dealing with objections at trial without the benefit of argument, as the court

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does not permit speaking objections in front of the jury, or 2) permitting the parties to
identity examples of representative evidence that would illustrate, from plaintiff’s

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For the Northern District of California

United States District Court

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perspective, why the proffered evidence does not violate any of the court’s prior rulings and

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is otherwise admissible, and from defendants’ perspective, why the evidence does violate

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one of the court’s prior rulings or is otherwise inadmissible. The court was of the view that

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the parties preferred a pretrial determination as to the admissibility specific categories or

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types of evidence, so that those rulings could be extrapolated to other evidence in order

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that both sides could be prepare their trial exhibits and discovery designations with some

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assurance that they would likely be admissible at trial. Yet, without agreement on even the

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representative nature of specific items of evidence, it is difficult for the court to understand

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how anything other than a document by document, deposition question by deposition

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question review at trial can be avoided.

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Accordingly, to be clear, the court believes that what is required is a joint submission

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which identifies jointly identified specific examples of evidence in each category of exhibits,

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deposition designations, written discovery designations and proposed witness testimony,

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followed by plaintiff’s arguments as to why the evidence does not violate a prior order and

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is otherwise admissible, followed by defendant’s arguments as to why the evidence does

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violate a prior court order and/or is otherwise inadmissible. The parties shall immediately

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meet and confer to determine if this can be accomplished and if so, the submission of the

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joint filing shall be no later than June 30, 2014.
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The court has no confidence that a ruling on defendants’ categorical objections,

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which are based in large part on plaintiff’s continued reliance on evidence upon which the

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court has already ruled, would achieve the intended goal. Nevertheless, should the parties

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simply prefer a ruling on the categorical objections made by defendant to the procedure

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outlined by the court, plaintiff shall file a response to defendants’ objections no later than

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June 16, 2014, setting forth her position as to why each item of evidence identified by

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defendants is admissible and the court will issue a written ruling thereafter.

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Finally, defendants shall file a response, no later than June 16, 2014, to plaintiff's
offer of proof on the concealment claim.

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For the Northern District of California

United States District Court

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IT IS SO ORDERED.

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Dated: June 2, 2014
______________________________
PHYLLIS J. HAMILTON
United States District Judge

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