Diana Hudson v. Alaska Airlines, Inc.

Filing 79

FINAL PRETRIAL ORDER (pjhlc1S, COURT STAFF) (Filed on 9/9/2019)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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DIANA HUDSON,

v.

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FINAL PRETRIAL ORDER

ALASKA AIRLINES, INC.,
Defendant.

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United States District Court
Northern District of California

Case No. 18-cv-03284-PJH

Plaintiff,

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Pursuant to Rule 16(e) of the Federal Rules of Civil Procedure, this final pretrial

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order is hereby entered and shall control the course of the trial unless modified by a

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subsequent order.

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A.

Plaintiff’s Daubert Motion

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1.

Legal Standard

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A witness who has been qualified as an expert by knowledge, skill, experience,

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training, or education may give an opinion on scientific, technical, or otherwise

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specialized topics if (1) the expert’s scientific, technical, or other specialized knowledge

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will help the trier of fact to understand the evidence or to determine a fact in issue, (2) the

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testimony is based on sufficient facts or data, (3) the testimony is the product of reliable

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principles and methods; and (4) the witness has reliably applied the principles and

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methods to the facts of the case. Fed. R. Evid. 702; see also Daubert v. Merrell Dow

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Pharms., Inc., 509 U.S. 579 (1993).

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The proponent of expert testimony bears the burden of establishing by a
preponderance of the evidence that the admissibility requirements are met. See Fed. R.

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Evid. 702, Advisory Committee Notes. Although relevant evidence enjoys the

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presumption of admissibility, the trial court is obliged to act in a “gatekeeping role” with

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regard to the admission of expert scientific testimony under Rule 702. Daubert, 509 U.S.

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at 597; see also Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 147 (1999). “This

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entails a preliminary assessment of whether the reasoning or methodology underlying the

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testimony is scientifically valid and of whether that reasoning or methodology properly

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can be applied to the facts in issue.” Daubert, 509 U.S. at 592–93.

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Thus, Daubert requires a two-part analysis. Id. The court first determines whether
an expert's testimony reflects “scientific knowledge,” whether the findings are “derived by

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the scientific method,” and whether the work product is “good science”—that is, whether

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United States District Court
Northern District of California

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the testimony is reliable and trustworthy. Daubert, 509 U.S. at 590 & n.9, 593. The court

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then determines whether the testimony is “relevant to the task at hand.” Id. at 597.

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Scientific evidence is reliable if it is grounded in methods of science—the focus is

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on principles and methodology, not on conclusions. Metabolife Int'l, Inc. v. Wornick, 264

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F.3d 832, 841 (9th Cir. 2001). In determining whether an expert's reasoning or

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methodology is scientifically valid, the district court can consider “many factors” including

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(1) whether a scientific theory or technique can be (and has been) tested; (2) whether the

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theory or technique has been subjected to peer review and publication; (3) whether there

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is a known or potential error rate; and (4) whether the theory or technique is generally

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accepted in the relevant scientific community. See Metabolife, 264 F.3d at 841; Daubert,

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509 U.S. at 593–95.

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Nevertheless, depending on the type of expert testimony offered, these factors

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may not be appropriate to assess reliability. Kumho Tire, 526 U.S. at 150. Other factors

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that might be considered to assess reliability include whether an expert has unjustifiably

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extrapolated from an accepted premise to an unfounded conclusion, or whether an expert

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has adequately accounted for obvious alternative explanations. See General Elec. Co. v.

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Joiner, 522 U.S. 136, 146 (1997) (“[N]othing in either Daubert or the Federal Rules of

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Evidence requires a district court to admit opinion evidence that is connected to existing
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data only by the ipse dixit of the expert. A court may conclude that there is simply too

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great an analytical gap between the data and the opinion proffered.”); Claar v. Burlington

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Northern R. Co., 29 F.3d 499, 502 (9th Cir. 1994). In addition, the trial court should

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ensure the expert “employs in the courtroom the same level of intellectual rigor that

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characterizes the practice of an expert in the relevant field.” Kumho Tire, 526 U.S. at

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152.
Rule 702's second prong concerns relevancy, or “fit.” See Daubert, 509 U.S. at

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591. Expert opinion testimony is relevant if the knowledge underlying it has a “valid

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scientific connection to the pertinent inquiry.” Id. at 591–92. As Rule 702 requires, it
must “assist the trier of fact to understand the evidence or to determine a fact in issue.”

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United States District Court
Northern District of California

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Id. at 590–92. But “scientific validity [and relevance] for one purpose is not necessarily

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scientific validity for other, unrelated purposes.” Id. at 591.

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2.

Analysis

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No party disputes Ravani’s qualifications in the field of biomechanics. Defendant

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argues that only a medical doctor can qualify to offer an opinion about injury causation.

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Although some courts have held otherwise, the weight of authority supports the

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conclusion that “the fact that a biomechanical expert is not a medical doctor does not

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mean that he is not qualified to offer an opinion as to specific causation.” Allen v. State

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Farm Mut. Auto. Ins. Co., No. 3:15-CV-0019-HRH, 2016 WL 9086966, at *4 (D. Alaska

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Aug. 2, 2016) (collecting cases); see also Yu-Santos v. Ford Motor Co., No.

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1:06CV01773AWI-DLB, 2009 WL 1392085, at *13 (E.D. Cal. May 14, 2009); Ream v.

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United States, No. 2:17-CV-1141-RAJ, 2019 WL 2578600, at *2 (W.D. Wash. June 24,

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2019).

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Plaintiff argues that Ravani’s opinions are not the product of reliable principles and

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methods, and that he has not reliably applied the principles and methods to the facts of

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the case. See Fed. R. Evid. 702; see also Daubert, 509 U.S. at 579. Specifically, plaintiff

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primarily challenges Ravani’s opinions that “[t]ypically, a value of 1000 HIC is determined

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to be the threshold for a head injury. For mild TBI, HIC values as low as 400 in one study
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[1] and 160 in another study [4] are considered as the beginning levels for such injuries.”;

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and “[t]he lowest peak G-forces or linear acceleration to be consistent with TBI are

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reported to be 60g’s or higher. In this incident even the upper limit values . . . are far

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below what has been observed to be consistent with TBI.”; and “there is no reasonable

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probability that the forces and motions imparted to Ms. Hudson’s head in the subject

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incident to [sic] have any potential for brain injuries.” Dkt. 38-1 at ECF pp. 21–22. For

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the following reasons, those opinions are EXCLUDED.
The court finds that the evidence before it does not show that these opinions are

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the product of reliable principles and methods, or that Ravani has reliably applied the
principles and methods to the facts of the case. Although Ravani reliably calculates the

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United States District Court
Northern District of California

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various forces that a bag of a certain weight would impose on an individual when falling

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from a certain height, there is no indication that Ravani has applied a generally-accepted,

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peer-reviewed, scientific theory or technique with a known error rate for determining

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whether such a force can cause mTBI. The studies Ravani cites in his report in fact

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suggest that no such generally-accepted standard establishing a force threshold for mTBI

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exists. Furthermore, even if defendant had demonstrated that Ravani relied upon sound

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principles and methods, the court finds that Ravani did not reliably apply the principles

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and methods to the facts of the case, because the report did not incorporate plaintiff’s

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particular characteristics (for example, her age or physical condition) when assessing the

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minimum threshold of force that could have caused mTBI.
Plaintiff’s other objections to Ravani’s testimony are denied. In particular, Ravani’s

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calculations based on exemplar physical models are permissible so long as a foundation

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for those measurements is entered into evidence. Of course, plaintiff may cross-examine

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Ravani in an attempt to elucidate the proper weight the jury should afford his testimony

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given its factual underpinnings.

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B.

Plaintiff’s Motions in Limine

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1.

Plaintiff’s Motion in Limine No. 1

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Plaintiff’s first motion in limine to preclude defendant from introducing expert
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testimony not disclosed in its expert disclosures is DENIED. Plaintiff has not specified

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any particular evidence she seeks to exclude, but rather refers to unbounded, broad

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categories of evidence. Although the opinions experts testify to must be limited to the

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contents of their reports, this issue is better addressed during trial as particular questions

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of admissibility arise.

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2.

Plaintiff’s Motion in Limine No. 2

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Plaintiff’s second motion in limine to preclude defendant from introducing rebuttal

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expert testimony that exceeds the scope of rebutting plaintiff’s expert testimony is

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DENIED. As with her first motion in limine, plaintiff has not specified any particular
evidence she seeks to exclude, but rather refers to broad potential categories of

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United States District Court
Northern District of California

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evidence. Although the opinions rebuttal experts testify to must be intended solely to

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contradict or rebut evidence identified by another party’s expert, this issue is better

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addressed during trial as particular questions of admissibility arise. Moreover, plaintiff’s

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argument that rebuttal experts must be of the same academic discipline as the expert

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they are rebutting is unavailing.

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Additionally, plaintiff’s motion to exclude Dr. McIntire’s testimony as cumulative of

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Dr. Hooker’s testimony is DENIED. Because no evidence has been admitted as of yet,

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the court will not exclude hypothetical, unspecified testimony as cumulative.

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3.

Plaintiff’s Motion in Limine No. 3

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Plaintiff’s third motion in limine to preclude defendant from introducing evidence,

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testimony, or argument that plaintiff failed to mitigate her damages is DENIED. Again,

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plaintiff has not identified any discernable item of evidence she is seeking to exclude by

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this motion. Moreover, plaintiff has not sought to strike, dismiss, or otherwise preclude

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defendant from asserting this affirmative defense prior to this motion in limine. A motion

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in limine to exclude unspecified items of evidence is not the proper mechanism at this

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point to adjudge the merits of defendant’s affirmative defense.

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4.

Plaintiff’s Motion in Limine No. 4

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Plaintiff’s fourth motion in limine to preclude defendant from introducing evidence
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of plaintiff’s past traumas experienced more than five years prior to the incident is

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DENIED. The quality of plaintiff’s life both prior to and following her alleged injury is

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highly relevant to the questions that will be presented to the jury at trial. However,

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certainly not all details about plaintiff’s life and traumas sustained prior to the incident are

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relevant, and even some relevant details would likely be unfairly prejudicial or confusing.

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Defendant is cautioned to use discretion in this regard, and the court will entertain

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objections at trial to exclude such evidence.

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5.

Plaintiff’s Motion in Limine No. 5

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Plaintiff’s fifth motion in limine to preclude testimony or evidence from Monica
Grant is DENIED. Plaintiff objects to defendant’s untimely disclosure of Grant, but as an

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United States District Court
Northern District of California

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impeachment witnesses, she did not need to be disclosed.

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C.

Defendant’s Motions In Limine
Defendant’s Motion in Limine No. 1

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1.

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Defendant’s first motion in limine to exclude evidence of amounts billed for

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plaintiff’s medical care is GRANTED as unopposed. By plaintiff’s admission, she will not

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seek to introduce billed amounts for medical care when a provider has accepted less

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than the total billed amount as full payment, or as themselves evidence of the reasonable

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value of the services.
Defendant’s Motion in Limine No. 2

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2.

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Defendant’s second motion in limine to exclude plaintiff’s claims for lost wages and

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economic damages is DENIED IN PART AND GRANTED IN PART. Plaintiff will be

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permitted to testify about her claim for lost earning capacity, so the motion is denied to

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the extent it seeks to exclude such evidence. However, this court will not allow the jury to

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calculate plaintiff’s lost earning capacity if such a calculation would require the jury to

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base its calculation on speculation.
Defendant’s Motion in Limine No. 3

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3.

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Defendant’s third motion in limine to exclude certain testimony from Dawn Brown,

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D.O. is DENIED. Defendant’s argument that Brown’s testimony will generally be
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cumulative is speculative at this point. Additionally, because Brown is licensed and

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certified by the state, defendant’s argument that she is not as expert as plaintiff’s other

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witnesses is not availing.
Defendant’s Motion in Limine No. 4

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4.

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Defendant’s fourth motion in limine to prohibit plaintiff’s counsel from referencing,
suggesting, or asking questions about specific dollar values during voir dire or jury

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selection or in plaintiff’s opening statement is GRANTED IN PART AND DENIED IN

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PART. According to this court’s regular practice, all counsel will be prohibited from

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referencing amounts of money during jury selection. However, counsel are permitted to

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argue that plaintiff is or is not entitled to a particular damages award during their opening

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United States District Court
Northern District of California

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statements, so long as they have a good-faith belief that admissible evidence will support

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their arguments.

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D.

Jury Instructions

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1.

Joint Instructions

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At the pretrial conference, the parties indicated that they had erroneously filed an

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incorrect draft of their joint pretrial instructions, such that certain of the so-called joint

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instructions were in fact opposed. Additionally, other previously-agreed-upon instructions

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were omitted. The parties shall file final, joint jury instructions no later than September

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12, 2019.

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Regarding jury instructions related to damages, the parties dispute whether the

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Ninth Circuit model damages instructions or the CACI model damages instructions are

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more appropriate. The court finds that the CACI instructions are more specific and

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explicative than the Ninth Circuit model instructions with regard to this action’s state-law

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negligence claim, and the court therefore adopts the CACI model damages instructions.

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The court notes defendant’s objection to use of the CACI damages instructions rather

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than the Ninth Circuit model damages instructions. Nevertheless, the parties’ joint

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submission shall include all damages instructions the parties jointly believe are needed,

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taken from the CACI models, including CACI 3904.
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Plaintiff’s Separate Instructions

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Regarding plaintiff’s first proposed instruction, CACI 431 regarding causation with

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multiple causes, the court will give the instruction if the evidence admitted at trial supports

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doing so.

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The court will give plaintiff’s second and third proposed instructions, CACI 3901

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and CACI 3902. Defendant does not object to either, other than to the extent it prefers

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the Ninth Circuit model damages instructions.
Regarding plaintiff’s fourth and fifth proposed instructions, CACI 3903 and CACI

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3903A, the court will give a version of this instruction, although plaintiff is ordered to
resubmit a modified version. First, it must be combined with CACI 3903A and 3903D.

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United States District Court
Northern District of California

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Second, it must omit monetary amounts.
Regarding plaintiff’s sixth and seventh proposed instructions, CACI 3905 and

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CACI 3905A, they must be combined as contemplated by the CACI instruction. The final

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optional paragraph of the CACI 3905 model addressing discounting to present cash value

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must be included. Finally, plaintiff is instructed to adjust her selection of noneconomic

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damages types and to reference them consistently throughout the instruction, as

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discussed at the pretrial conference.
Regarding plaintiff’s eighth and ninth proposed instructions, CACI 3927 and CACI

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3928, the court will give the instructions if the evidence admitted at trial supports doing

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so.

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Regarding plaintiff’s tenth proposed instruction, CACI 3932, there is no objection
and the court will give the instruction.
Defendant’s Separate Instructions

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3.

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Regarding defendant’s first proposed instruction, Ninth Circuit model instructions

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5.1 and 5.2, the court declines to give these instructions in favor of the CACI model

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damages instructions.

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Regarding defendant’s second proposed instruction, which is a custom instruction
fashioned after a California statute regarding privileged publications made in a judicial
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proceeding, the court declines to give the instruction. Plaintiff may not offer evidence or

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argue that this judicial proceeding is a compensable source of her damages, and

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defendant may of course object if plaintiff deviates from this order.
Regarding defendant’s third proposed instruction, Ninth Circuit model 5.4, the

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court will instead use the analogous instruction CACI 3904.

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E.

Voir Dire

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The court will conduct the voir dire orally and by using a questionnaire. The

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parties’ jointly-proposed questions will be incorporated into the court’s oral voir dire

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and/or the written questionnaire. The court declines to adopt plaintiff’s proposed voir dire
questions as argumentative. The questionnaire will be provided to counsel the week

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United States District Court
Northern District of California

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before trial.
After the court’s questioning, each side shall have fifteen minutes to question the

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panel, but may not use that time to argue their case. The parties must abide by this

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court’s rulings on the parties’ motions in limine when conducting voir dire.
The court will empanel eight jurors. Each side shall have three peremptory

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challenges.

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F.

Verdict Form

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As discussed at the pretrial hearing, the parties are instructed to revise and

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resubmit the joint verdict form no later than September 12, 2019. In particular, the

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second question should specify that the jury will compute only damages caused by

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defendant’s negligence. Additionally, the question describing non-economic loss should

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not include examples of non-economic loss.

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G.

Trial Schedule and Time Limits
There will be approximately 18 hours of trial time, which will be divided equally

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with each side allotted 9 hours for opening statements, presentation of evidence, cross-

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examination, and closing arguments. Jury selection, final jury instructions, and

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deliberations are not included within this allotment.

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H.

Other Matters
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Defendant requested that the court exclude witnesses from trial, and plaintiff did

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not object. There court hereby excludes witnesses who may testify from attending the

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trial, including those witnesses who may be called for rebuttal.

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The parties are directed to meet and confer regarding objections to exhibits and

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deposition excerpts. If any objection cannot be resolved through the parties’ meet and

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confer process, the parties may file a joint letter brief concerning their unresolved

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disputes no later than September 16, 2019.

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United States District Court
Northern District of California

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The parties must prepare and jointly submit a statement of undisputed facts to be
read to the jury no later than September 16, 2019.
IT IS SO ORDERED.
Dated: September 9, 2019

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PHYLLIS J. HAMILTON
United States District Judge

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