Brewer v. General Nutrition Corporation

Filing 333

PRE-TRIAL ORDER NO. 4 RE: MOTIONS IN LIMINE by Judge Yvonne Gonzalez Rogers : granting 260 Motion in Limine; granting in part and denying in part 261 Motion in Limine; granting in part and denying in part 262 Motion in Limine; granting in part and denying in part 263 Motion in Limine; granting 264 Motion in Limine; RESERVED 265 Motion in Limine; RESERVED 266 Motion in Limine; denying 267 Motion in Limine; granting 268 Motion in Limine; granting in part and denying i n part 269 Motion in Limine; granting in part and denying in part 270 Motion in Limine; granting 272 Motion in Limine; RESERVED 273 Motion in Limine; RESERVED 274 Motion in Limine; withdrawing 275 Motion in Limine; granting in part and denying in part 276 Motion in Limine (fs, COURT STAFF) (Filed on 12/29/2015)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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United States District Court
Northern District of California

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CHARLES BREWER, individually and on
behalf of all other similarly situated current
and former employees of Defendant,
Plaintiffs,

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Case No. 11-cv-3587 YGR
PRE-TRIAL ORDER NO. 4 RE:
MOTIONS IN LIMINE
Dkt. Nos. 260-270, 272-276

v.
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GENERAL NUTRITION CORPORATION,
Defendant.

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The parties’ motions in limine (Dkt. Nos. 260-270, 272-276) came on regularly for hearing
on October 9, 2015. The Court, having considered the parties’ papers in support of and in

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opposition to the motions, their arguments, and the record of the proceedings herein, ORDERS as
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follows:
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I.
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DEFENDANT’S MOTIONS IN LIMINE
No. 1 To Exclude Responses To Plaintiffs’ Survey:

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GNC moves to preclude Plaintiffs from offering into evidence the responses of class
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members to the written survey, including any compilation and/or summary of the Survey
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responses on hearsay grounds.
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Ruling: GRANTED. The Court further notes that the instant trial concerns Plaintiffs’ claims that
GNC is operating under a policy. Thus, while individual class members’ experiences have some

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bearing on the issue, they will not be the gravamen of the trial.
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No. 2 To Exclude Evidence Regarding Post-Class Period Conduct

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GNC moves to preclude Plaintiffs from referencing conduct after the close of the class

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period (November 12, 2014) under Rules 401, 403, and 407.

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Ruling: GRANTED IN PART to the extent that Plaintiffs seek to offer such testimony to the jury at

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trial. Evidence may be offered to the Court separately during an injunctive phase, upon a proffer

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establishing admissibility for purposes of injunctive or other equitable relief.

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No. 3 To Exclude Reference To Prior Court Orders

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GNC moves to preclude Plaintiffs from referring to prior Court orders in this action,

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including the November 12 2014 Order on Plaintiffs’ Motion for Class Certification under Rules
401 and 403.

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United States District Court
Northern District of California

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Ruling: GRANTED IN PART. Evidence of prior orders is not admissible except to the extent that

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jury will need to make a determination of damages based upon an issue of liability previously

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resolved and they need only decide the issue of damages. The Court’s prior determinations as to

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the applicable law will be incorporated in the jury instructions.

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No. 4 To Exclude Evidence Regarding Any Computation of Damages Not Identified in
Plaintiffs’ Rule 26 Disclosures

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GNC moves to preclude any evidence or argument supporting a computation of damages

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not identified in Plaintiffs’ Rule 26 Disclosures. Alternatively, GNC moves to limit Plaintiffs to

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presentation of the computation of damages disclosed in their expert report (i.e., Plaintiffs cannot

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introduce evidence or argument inconsistent with, or otherwise not addressed by, Dr. Kane’s

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report), to the extent that expert opinion is admissible.

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Ruling: GRANTED IN PART to the extent that GNC seeks to limit Plaintiffs to the computation of

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damages disclosed in their expert report; RESERVED to the extent GNC seeks to preclude all

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evidence or argument. By January 8, 2016, Plaintiffs shall provide the Court with a proffer for

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the presentation of damages not otherwise in the report, including the evidentiary basis upon

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which it shall be offered.

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No. 5 To Exclude Declarations of Class Members

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GNC moves to preclude Declarations of Class Members listed on Plaintiffs’ September 11,

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2015 Exhibit List as Exhibits 1 through 4 under Rules 801(c) and 401.

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Ruling: GRANTED.

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No. 6 To Exclude of Defendant’s Financial Condition

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GNC moves the Court for an order, in limine, precluding Plaintiffs from using evidence or
testimony regarding GNC’s financial condition, including Exhibits 44-53, on the grounds that

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such evidence is not relevant when financial information is not the element of a claim or defense.

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GNC contends that its financial information has no probative value with regard to Plaintiffs’

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claims and is unduly prejudicial, citing In re Homestore.com, Inc., No. CV 01-11115 RSWL

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United States District Court
Northern District of California

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CWX, 2011 WL 291176, (C.D. Cal. Jan. 25, 2011).

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Ruling: RESERVED. By January 8, 2016, GNC shall notify the Court whether it intends to assert

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financial condition or inability as part of its defense to any claim.

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No. 7 To Exclude Summaries Proffered By Plaintiffs

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GNC moves the Court for an order, in limine, precluding Plaintiffs from offering into

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evidence, or otherwise presenting to the Jury, certain purported summaries they created. These

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summaries are identified on Plaintiffs’ September 11, 2015 Exhibit list as Exhibits 75-80 and

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purport to summarize certain voluminous records (change records, on duty, payment detail, punch

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records, and reimbursement forms). These summaries are not admissible under Federal Rule of

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Evidence 1006, they are misleading, and are not stated objectively.

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Ruling: RESERVED. The parties were to meet and confer on summaries of voluminous records for

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presentation to the jury. The parties shall be prepared to discuss this issue at the pretrial

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conference set for January 15, 2016.

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II.

PLAINTIFFS’ MOTIONS IN LIMINE

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No. 1 to Exclude Evidence Regarding Affirmative Defenses Not Pleaded

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Plaintiffs move to preclude GNC from offering evidence or argument regarding affirmative

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defenses of: voluntary waiver of meal period, on-duty meal period agreements, or good faith

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dispute as to wages owed for final payment of wages as not having been pleaded in GNC’s
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Answer to Third Amended Complaint (Dkt. No. 86).

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Ruling: DENIED.

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No. 2 to Exclude Evidence Not Disclosed During Discovery

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Plaintiffs move to preclude GNC from offering the declaration of Lona Toffolo or any

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expert witness evidence not produced during discovery and not disclosed, pursuant to FRCP 37(c)

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and FRE 403.

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Ruling: GRANTED.

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No. 3 to Exclude Verdicts from Prior Litigation

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Plaintiffs move to preclude GNC from presenting evidence or argument regarding the
outcome of prior litigation, including but not limited to the Abad litigation, pursuant to Rule 401,

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United States District Court
Northern District of California

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402, and 403.

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Ruling: GRANTED IN PART. The evidence will be excluded except to the extent that Plaintiffs

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open the door on this issue, in which case GNC may respond.

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No. 4 to Exclude Evidence from Prior Litigation

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Plaintiffs move the Court for an order, in limine, precluding GNC from offering argument

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or evidence relating to any claim or issue that was previously adjudicated, including the Abad

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litigation and the Naranjo, and the deposition transcripts taken of Matthew Cappadonna,

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Cassandra Draeger, Misty Fair, Anthony Lozano, and Thomas Scott in the Naranjo action.

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Ruling: GRANTED IN PART. This evidence is excluded except to the extent that GNC offers a

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proffer establishing admissibility under some hearsay exception other than FRE 801(d)(2)(A), or

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Plaintiffs open the door by offering evidence of other litigation by class members. See Pierce v.

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County of Orange, 526 F.3d 1190, 1202 (9th Cir. 2008); this Court’s Pretrial Order No. 3, dated

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December 21, 2015 (Dkt. No. 330).

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No. 5 to Exclude Evidence Regarding Previously Adjudicated Issues

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Plaintiffs move to preclude GNC from offering argument or evidence regarding matters

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summarily adjudicated by the Court, including: availability of a derivative final pay claim,

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evidence regarding the date of the final payment of wages other than the “Final Pay Spreadsheet”

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and evidence regarding the date of termination other than the “Final Pay Spreadsheet,” pursuant to
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Rule 401 and 403.

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Ruling: GRANTED.

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No. 6 to Exclude Unqualified Expert Testimony

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Plaintiffs move to preclude GNC from offering argument or evidence based upon

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unqualified expert testimony, including but not limited to Mr. Masztak’s testimony regarding

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surveys, pursuant to Rules 702 and 403.

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Ruling: RESERVED. To the extent Masztak is being offered as rebuttal to explain why Plaintiffs’

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survey was inadequate, the issue is moot in light of the Court’s ruling excluding the survey

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evidence.
No. 7 to Exclude Expert Testimony Based On Speculation

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United States District Court
Northern District of California

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Plaintiffs move to preclude GNC from offering argument or evidence of expert testimony

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regarding the concept of “coverage” due to speculation and lack of factual basis, pursuant to Rules

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702, 401 and 403.

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Ruling: RESERVED. To the extent such evidence is being offered as rebuttal to explain why

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Plaintiffs’ survey was inadequate, the issue is moot in light of the Court’s ruling excluding the

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survey evidence.

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No. 8 to Exclude Evidence Regarding the Disciplinary Record of Any Class Member

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Plaintiffs move to preclude GNC from offering argument or evidence regarding

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disciplinary records of class members.

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Ruling: WITHDRAWN. (See Dkt. No. 317.)

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No. 9 to Exclude Class Member Declarations

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Plaintiffs move to preclude GNC from offering into evidence Class Member Declarations,

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pursuant to Rules 403 and 801(c).

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Ruling: GRANTED to the extent that GNC seeks to introduce a declaration from a non-testifying,

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unnamed class member. Otherwise, DENIED as to declarations of class representatives who are

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named or are identified as testifying at trial.

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III.

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CONCLUSION
With respect to any Motion in Limine that is granted, in part or in whole, the Court
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excludes the evidence identified. Such evidence is not to be introduced for any purpose unless

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otherwise specified. No party, or its counsel, shall attempt to introduce, testify about, question

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witnesses regarding, comment on, or refer to such evidence, whether during voir dire or trial.

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IT IS SO ORDERED.
Dated: December 29, 2015
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YVONNE GONZALEZ ROGERS
UNITED STATES DISTRICT COURT JUDGE

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United States District Court
Northern District of California

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