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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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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NIKKI POOSHS,

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v.

ORDER

PHILIP MORRIS USA, INC., et al.,
Defendants.

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United States District Court
Northern District of California

Case No. 04-cv-1221-PJH

Plaintiff,

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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

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“failure to warn” instructions – No. 23 (strict liability failure to warn) and No. 24 (negligent

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failure to warn).

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2.

The parties will meet and confer and advise the court whether they

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wish the court to give the jury, at the beginning of the trial, (a) only the introductory

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instructions, (b) the introductory instructions plus Nos. 23, 24, 27 (the “core” instructions),

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(c) the introductory instructions, the “core” instructions, and additional explanatory

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instructions re causation, substantial factor, and reliance (Nos. 22, 25, 26, 28, 29), or (d)

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all the instructions.

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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

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the phrase “Pursuant to the Labeling Act enacted by Congress, effective July 1, 1969,” in

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place of the phrase “Pursuant to the Surgeon General’s directive . . . .”
5.

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Instruction No. 42 (punitive damages) will be revised to substitute the

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phrase “malice and oppression” in place of the phrase “malice, fraud, and oppression;

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and to substitute “Nikki Pooshs” in place of “Ms. Pooshs.”
6.

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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.

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Verdict Form (Doc. 428-1)
1.

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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.

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No later than January 19, 2016, plaintiff shall file a brief, not to

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exceed five pages, on the issue counsel raised at the hearing regarding “apportionment”

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of liability or damages. Defendants may file a response, also not to exceed five pages,

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no later than two days after plaintiff’s brief is filed.

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C.

Exhibits
In designating exhibits and objections thereto, the parties may follow the

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procedure set forth in the Sixth Final Pretrial Order (Doc. 406) at 12 with regard to

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submission of deposition designations and objections thereto.

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IT IS SO ORDERED.

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Dated: January 12, 2016

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__________________________________
PHYLLIS J. HAMILTON
United States District Judge

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