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

Filing 421

SEVENTH FINAL PRETRIAL ORDER. Signed by Judge Hamilton on 4/6/2015. (pjhlc1, COURT STAFF) (Filed on 4/6/2015)

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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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For the Northern District of California

United States District Court

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v.

No. C 04-1221 PJH
SEVENTH FINAL PRETRIAL ORDER

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PHILLIP MORRIS USA, INC., et al.,

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Defendants.
_______________________________/

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Pursuant to Rule 16(e) of the Federal Rules of Civil Procedure, unless modified by a

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subsequent order, this seventh final pretrial order is hereby entered and shall control the

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course of the trial, along with the October 22, 2012 order re motions to exclude expert

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testimony (Doc. 229); the December 5, 2012 order re motions to exclude testimony of

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plaintiff's experts (Doc. 288); the December 5, 2012 preliminary final pretrial order (Doc.

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289); the February 15, 2013 second final pretrial order (Doc. 310); the July 19, 2013 third

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final pretrial order (Doc. 337); the February 20, 2014 fourth final pretrial order (as revised

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on April 2, 2014) (Doc. 375); the April 2, 2014 fifth final pretrial order (Doc. 376); the

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December 2, 2014 order re plaintiff's offer of proof (Doc. 391); the December 2, 2014 order

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re defendants' categorical objections to evidence (Doc. 392); and the March 4, 2015 sixth

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final pretrial order (Doc. 406).

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I.

Remaining Disputed Jury Instructions

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A.

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Upon further consideration, the court will not give CACI 203, because of its inherent

CACI 203 and 205

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subjectivity. In particular, the court sees no way to instruct the jury how to determine that a

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party "could have provided stronger evidence."

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If warranted by the evidence presented at trial, the court will give CACI 205, but only

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after all the evidence has been presented. The only instructions that are not contingent on

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the evidence actually admitted are those standard Ninth Circuit Model Jury Instructions

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listed in the November 2, 2007 Case Management and Pretrial Order (Doc. 120) at 4.

The parties' competing versions of CACI 1907 differ in two respects. First,

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defendants' proposed instruction refers to the alleged concealment influencing plaintiff to

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"smoke" cigarettes, while plaintiff's proposed instruction refers to the alleged concealment

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For the Northern District of California

B.

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United States District Court

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CACI 1907

influencing her to "use" cigarettes. Second, defendants' proposed instruction includes a

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reference to the concealment influencing plaintiff to smoke "that defendant's" cigarettes,

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while plaintiff's does not refer to a defendant.

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Instructions Nos. 24 and 25 both refer to plaintiff's having "smoked" – not "used" –

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cigarettes. Moreover, the court previously approved a version of CACI 1907 that referred

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to "smoke" rather than "use" – which was based on plaintiff's prior proposed instruction.

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Plaintiff has provided no explanation for this proposed change from "smoke" to "use," and

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given the language in Instruction Nos. 24 and 25, the court finds that "smoke" is more

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consistent, and is also more precise. If plaintiff presents some evidence at trial showing

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that she contracted cancer by "using" cigarettes in some way other than "smoking," the

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court will reconsider.

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In addition, Instruction No. 24 states that to establish that her cancer was caused by

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smoking a defendant's cigarettes, plaintiff must prove that "smoking the defendant's

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cigarettes more likely than not caused her lung cancer." Thus, in order to prove that she

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relied on a particular defendant's concealment, plaintiff must show that the concealment

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influenced her to smoke "the defendant's" cigarettes and that she would not have smoked

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"the defendant's" cigarettes without the concealment.

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Accordingly, the court will give the following version of CACI 1907:
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Nikki Pooshs relied on a defendant's concealment if:
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1.
The concealment substantially influenced her to smoke the
defendant's cigarettes; and

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2.
She would probably not have smoked the defendant's cigarettes
without the concealment.

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It is not necessary for a concealment to be the only reason for Nikki
Pooshs' conduct.

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II.

"Blind" Jury Instructions
"Blind" jury instructions are instructions that include no references to the submitting

party, no case citations, and no commentary, but which do include the titles – e.g.,
"Reliance." No later than April 20, 2015, the parties shall submit a complete set of "blind"

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For the Northern District of California

United States District Court

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jury instructions that includes the title of each instruction and the final version of the two

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instructions approved herein.

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IT IS SO ORDERED.

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Dated: April 6, 2015
______________________________
PHYLLIS J. HAMILTON
United States District Judge

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