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

Filing 453

ORDER. Signed by Judge Hamilton on 1/12/2016. (pjhlc1, COURT STAFF) (Filed on 1/12/2016)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 NIKKI POOSHS, 9 10 v. ORDER PHILIP MORRIS USA, INC., et al., Defendants. 11 United States District Court Northern District of California Case No. 04-cv-1221-PJH Plaintiff, 8 12 13 14 15 16 17 In accordance with the discussion at the January 11, 2016 hearing, the court hereby ORDERS as follows. A. Jury Instructions (Doc. 424-1) 1. The court will not give an additional instruction to supplement the two 18 “failure to warn” instructions – No. 23 (strict liability failure to warn) and No. 24 (negligent 19 failure to warn). 20 2. The parties will meet and confer and advise the court whether they 21 wish the court to give the jury, at the beginning of the trial, (a) only the introductory 22 instructions, (b) the introductory instructions plus Nos. 23, 24, 27 (the “core” instructions), 23 (c) the introductory instructions, the “core” instructions, and additional explanatory 24 instructions re causation, substantial factor, and reliance (Nos. 22, 25, 26, 28, 29), or (d) 25 all the instructions. 26 27 28 3. The court will give the concealment instruction (No. 27) as written, unless plaintiff puts on evidence of only a single fact that defendants concealed. 4. Instruction No. 30 (express preemption) will be revised to substitute 1 the phrase “Pursuant to the Labeling Act enacted by Congress, effective July 1, 1969,” in 2 place of the phrase “Pursuant to the Surgeon General’s directive . . . .” 5. 3 Instruction No. 42 (punitive damages) will be revised to substitute the 4 phrase “malice and oppression” in place of the phrase “malice, fraud, and oppression; 5 and to substitute “Nikki Pooshs” in place of “Ms. Pooshs.” 6. 6 7 8 revisions set forth above. B. United States District Court Northern District of California Defendants shall modify the Verdict Form to include titles that correspond with the jury instructions. 2. 11 12 Verdict Form (Doc. 428-1) 1. 9 10 The parties shall re-submit the jury instructions to include the Question 19 shall be modified to substitute “percentage of damages” in place of “percentage of responsibility.” 3. 13 No later than January 19, 2016, plaintiff shall file a brief, not to 14 exceed five pages, on the issue counsel raised at the hearing regarding “apportionment” 15 of liability or damages. Defendants may file a response, also not to exceed five pages, 16 no later than two days after plaintiff’s brief is filed. 17 18 C. Exhibits In designating exhibits and objections thereto, the parties may follow the 19 procedure set forth in the Sixth Final Pretrial Order (Doc. 406) at 12 with regard to 20 submission of deposition designations and objections thereto. 21 22 IT IS SO ORDERED. 23 Dated: January 12, 2016 24 25 __________________________________ PHYLLIS J. HAMILTON United States District Judge 26 27 28 2

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