Brewer v. General Nutrition Corporation

Filing 372

PRETRIAL ORDER NO. 7 RE: FURTHER ORDERS ON OUTSTANDING MOTIONS IN LIMINE; DISCHARGING ORDER TO SHOW CAUSE; DENYING MOTION TO QUASH; RESERVING ON MOTION FOR DECLARATORY RELIEF; ADDITIONAL TRIAL ISSUES. Signed by Judge Yvonne Gonzalez Rogers on 2/1/16. (fs, COURT STAFF) (Filed on 2/1/2016)

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UNITED STATES DISTRICT COURT

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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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v.
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GENERAL NUTRITION CORPORATION,

United States District Court
Northern District of California

Defendant.
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Case No. 11-cv-3587 YGR
PRE-TRIAL ORDER NO. 7 RE:
FURTHER ORDERS ON OUTSTANDING
MOTIONS IN LIMINE;
DISCHARGING ORDER TO SHOW CAUSE;
DENYING MOTION TO QUASH;
RESERVING ON MOTION FOR
DECLARATORY RELIEF;
ADDITIONAL TRIAL ISSUES
(Dkt. No. 265, 266, 270 355, 358, 362)

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On February 1, 2016, the Court held a regularly scheduled pretrial hearing. The Court
ORDERS as follows:
I.

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ORDER TO SHOW CAUSE (DKT. NO. 362)
Based upon the responses filed by Defendants’ counsel (Dkt. No. 366), the Court

DISCHARGES the Order to Show Cause. No sanctions shall be ordered.
II.

RULINGS ON OUTSTANDING MOTIONS IN LIMINE
The Court rules as follows on the motions in limine as to which ruling was previously

reserved:
A.

DEFENDANT’S MOTIONS IN LIMINE

No. 4 To Exclude Evidence Regarding Any Computation of Damages Not Identified in
Plaintiffs’ Rule 26 Disclosures
The Court previously reserved on the issue of disclosure of a calculation of damages not
otherwise provided in Dr. Kane’s report. Plaintiffs’ submitted a supplemental statement of the
calculation of individual damages for certain named plaintiffs’ overtime/off-the-clock claims. The

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Court finds this disclosure sufficient. The motion in limine is OVERRULED to the extent it seeks to

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exclude this damages information, based upon the testimony of the individual plaintiffs.

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No. 6 To Exclude of Defendant’s Financial Condition (Dkt. No. 265)

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GNC moved the Court for an order precluding Plaintiffs from using evidence or testimony

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regarding GNC’s financial condition, including Exhibits 44-53, on the grounds that such evidence

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is not relevant when financial information is not the element of a claim or defense. The Court

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previously reserved ruling in order to permit GNC to state whether it intends to assert financial

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condition or inability as part of its defense to any claim. GNC having disclaimed any intention to

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assert financial condition or inability as a defense, the motion in limine to exclude evidence or

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testimony regarding GNC’s financial condition is GRANTED.

United States District Court
Northern District of California

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No. 7 To Exclude Summaries Proffered By Plaintiffs (Dkt. No. 266)

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Based upon the parties’ Joint Trial Stipulations, filed with the Court on February 1, 2016,

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(Dkt. No. 370) and the Plaintiffs’ withdrawal of the remaining summary exhibit at issue, the

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matter is resolved and Defendant has withdrawn the motion in limine.

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The parties will submit a clean, electronic version of their Joint Trial Stipulations for
inclusion in the juror notebooks by close of business February 1, 2016.

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B.

PLAINTIFFS’ MOTIONS IN LIMINE

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No. 4 to Exclude Evidence from Prior Litigation (Dkt. No. 270)

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Plaintiffs previously moved the Court for an order, in limine, precluding GNC from

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offering argument or evidence relating to any claim or issue that was previously adjudicated,

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including the Abad litigation and the Naranjo, and the deposition transcripts taken of Matthew

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

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action. In its Pretrial Order No. 4, the Court ordered that that evidence was excluded except to the

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extent that GNC offers a proffer establishing admissibility under some hearsay exception other

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than FRE 801(d)(2)(A), or Plaintiffs open the door by offering evidence of other litigation by class

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members. (Dkt. No. 333.)

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GNC has now provided the Court with a proffer with respect to the admissibility of
deposition transcripts under FRE 804(b)(1). (See Dkt. No. 337.) Rule 804(b)(1) provides an
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exception to the hearsay rule where: (a) the declarant is unavailable as a witness; (b) the testimony

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was given as a witness at a trial, hearing or lawful deposition (during current proceeding or a

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different one); and (c) is now offered against a party who had—or whose predecessor in interest

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had—an opportunity and similar motive to develop the testimony by direct, cross, or redirect

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examination. While GNC is still in the process of confirming whether the witnesses are

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unavailable, the Court finds that the remaining two 804(b)(1) factors have been satisfied. See

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Culver v. Asbestos Defendants (BP), No. C 10-03484 SI, 2010 WL 5094698, at *4 (N.D. Cal. Dec.

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8, 2010) (adopting interpretation of Third, Fourth, and Sixth Circuits that Rule 804’s “predecessor

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in interest” limitation is meant to be read generously where former suit involved a party with
similar motivation to cross-examine on similar issues as the present party); Wright & Miller, FED.

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United States District Court
Northern District of California

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PRAC. & PROC. EVID. § 7073 (2014 ed.) (“courts have interpreted the phrase predecessor in interest

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to extend beyond privity to encompass parties sharing a ‘community of interest.’”)
Therefore, the motion in limine is DENIED to the extent that witnesses who gave sworn

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testimony in the Brewer, Abad, and/or Naranjo litigation are shown to be unavailable in this

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litigation. However, Defendant must make a sufficient showing of unavailability prior to offering

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any deposition testimony of the witness.
Plaintiffs are given leave to amend their counter-designations of the deposition testimony

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at issue, if needed.

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C.

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With respect to any Motion in Limine that the Court has granted, in part or in whole, the

ALL MOTIONS IN LIMINE

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Court’s rulings exclude the evidence identified. Such evidence is not to be introduced for any

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purpose unless otherwise specified. No party, or its counsel, shall attempt to introduce, testify

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about, question witnesses regarding, comment on, or refer to such evidence, whether during voir

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dire or trial.

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III.

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MOTION TO QUASH/MOTION FOR DECLARATORY RELIEF (DKT. NOS. 355, 358)
The Motion to Quash DENIED as to Hallock, Katz, and Reidy. GNC agrees that these

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persons reside, are employed, or regularly transact business in California, and that Plaintiffs have

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subpoenaed them to appear for trial and agreed to pay their expenses such that they would not
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incur substantial expense. Consequently, the requirements for compelling their attendance at trial

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under the geographical limitations set forth in Rule 45(c)(1)(B)(ii) are met. Plaintiffs withdrew

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their subpoenas for Wunschel and Emrick.
With respect to the remaining potential witnesses, the motion to quash is DENIED

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WITHOUT PREJUDICE as premature. The record is incomplete as to whether the elements of Rule

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45(c)(1)(B) are or can be met with respect to these potential witnesses.
To the extent that any of Plaintiffs’ potential witnesses are outside the subpoena power of

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the Court under Rule 45, the parties have leave to supplement their deposition designations to

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include the witnesses’ discovery responses, and Defendant will be precluded from offering live
testimony of the witness.

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United States District Court
Northern District of California

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IV.

EXPERT TESTIMONY ON REIMBURSEMENT CLAIM
The Court sought clarification from Plaintiffs regarding what expert opinion evidence they

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would present in support of their automobile expense reimbursement claim, given that the Court

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had excluded opinions relying on the class member survey. (Dkt. No. 332 at 6-7.) In light of the

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parties’ arguments, and Plaintiffs’ submission of the underlying evidence concerning Dr. Kane’s

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opinion and calculations with respect to this claim, the Court finds that the statements in paragraph

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22 of Dr. Kane’s report which reference the survey data, and reductions to calculations based on

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that data, are excluded from evidence. Likewise, the portions of the summary sentences below

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Tables 10, 11, 12, and 13 which incorporate the survey data/percentages are also excluded from

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evidence. The opinions are otherwise admissible.

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IV.

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ADDITIONAL TRIAL ISSUES
A.

JURY ISSUES

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1. The Court will seat a total of nine (9) jurors and no alternates. The Court sets the

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number of peremptory challenges at four (4). Batson/Wheeler motions must be

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made in a timely fashion. Argument on the same shall be made outside the

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presence of the jury panel.

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2. Per the Court’s Standing Order, the Court will give Model Instructions 1.1B, 1.2,
1.3, 1.6, 1.7, 1.9-1.15, 1.18, 1.19, and 3.1–3.3 from the Manual of Model Civil Jury
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Instructions for the Ninth Circuit (2007 Edition). Instruction 1.8 will be given

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during the course of the trial as appropriate.
3. Parties shall each be afforded 20 minutes to conduct additional voir dire of the jury

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panel.

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4. In accordance with Model Rule of Professional Conduct 3.5(b) and Formal Opinion

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for 466, the parties “may review a juror’s or potential juror’s Internet presence,

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which may include postings by the juror or potential juror in advance of and during

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the trial, but...may not communicate directly or through another with a juror or

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potential juror.” A party “may not, either personally or through another, send an
access request to a juror’s electronic social media. An access request is a

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United States District Court
Northern District of California

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communication to a juror asking the juror for information that the juror has not

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made public and that would not be the type of ex parte communication prohibited

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by Model Rule 3.5(b).”
5. During voir dire you will be allowed to use the bathrooms in the jury room so that

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you do not share the facilities with the jurors. You may not linger in the jury room

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or use any exit door other than the one leading to the courtroom.
TRIAL TIME

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B.

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By no later than 5:00 P.M. ON WEDNESDAY, FEBRUARY 3, 2016, the parties shall file a

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notification with the Court indicating whether they stipulate to fewer total trial hours and, if so,

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how many. If there is no stipulation, the Court will proceed with prescreening the jury to sit until

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March 4, 2016.

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This terminates Docket Nos. 265, 266, 270 355, 358, and 362.

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IT IS SO ORDERED.

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Dated: February 1, 2016
______________________________________
YVONNE GONZALEZ ROGERS
UNITED STATES DISTRICT COURT JUDGE

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