Judge: Mark H. Epstein, Case: SC128404, Date: 2023-02-27 Tentative Ruling

Case Number: SC128404    Hearing Date: February 27, 2023    Dept: R

The case is here for a final status conference.  The case had been set for trial earlier and additional materials were filed on February 22, 2023.  Combining the earlier materials with the recent ones, the court is in receipt of the following: (1) Joint Witness List (47 witnesses and 80 hours of testimony); (2) Joint Exhibit List (plaintiff has about 240 exhibits to which there are some objections noted and defendant has about 100 exhibits for which some objections are noted; the court assumes that if no objection is noted it means that no party objects to the exhibit’s admission; it appears that the parties agree that all exhibits are authentic); (3) Short Statement of the Case (the parties do not agree on this, but the court believes that defendant’s proposal is closer to what the court will accept); (4) Plaintiff’s Jury Instructions and special verdict language; (5) Defendant’s jury instructions and special verdict language; (6) Plaintiff’s Verdict Form; (7) Defendant’s Verdict Form; (8) Deposition Chart without objections and listing only Kabi; (9) Defendant’s Trial Brief; (10) Joint Jury Instructions; (11) Updated Trial Time Estimate (10 days); (12) Defendants’ Objections to Plaintiff’s Proposed Verdict Forms.

The case is very close to ready.  Right now, the court’s schedule is as follows: it will be involved in a bench trial this week and the court will be dark from March 15 through March 22.  There is another case also set for 3/6/23, although it is a bench trial and not a long one.  There is another jury trial set for March 23, but the court is not confident that it will in fact go forward although all of the final status conference materials have been filed.  There is a case set for trial on March 13, 2023 that has a 3 day trial estimate.  It will likely need to be continued due to the court’s schedule.  The court is also not sure whether it will really be ready for trial.  There is a short cause bench trial set for March 13 and it will likely go forward.  There is another short cause trial set for March 13, 2023 and it, too, might go forward.  There is also a three day bench trial that is currently trailing.  The court will know more about that case this morning.  Accordingly, there are cases in line and ready to go forward.  The court also has a rather lengthy jury trial set for March 23, 2023, but the court doubts it will be ready to go.  Finally, the court has a long cause case set for trial on March 23, 2023, but that trial date is a phantom date.  If the case is ready for trial, and assuming it is still long cause, it will be transferred to Department 1 and will not delay other trials.

The court would like the parties in this case to further meet and confer to try and agree on the short statement of the case.  They should also continue to meet and confer on the jury instructions and verdict form.  The court asks the parties to submit a “red line” verdict form.  Plaintiff’s proposed form will be the original and defendants’ changes will be in red-line.  The parties should attempt to agree on as much as possible.  The court would also request the parties to submit a joint complete set of jury instructions in the order in which they ought to be read to the jury.  Agreed upon instructions will be in black, plaintiff’s instructions will be in blue, and defendants’ instructions will be in dark(ish) green.  The court is unsure what to make of the deposition chart.  The court assumes that no party has any objection to the designations for volumes 1-3.  The court assumes defendant has no counter-designations for volume 3.  And the court assumes that plaintiff has no designations for volume 4.

The court is in receipt of one in limine motion, fully briefed.  It was filed by plaintiff.  The ruling is set forth below.

The court notes that the time to bring the case to trial is soon expiring.  The court will ask for a stipulation to allow for an orderly trial without running the risk that the case will need to be dismissed on that basis.  The court will also discuss with the parties how best to proceed given the court’s trial schedule.  The court can trail this case pending the other cases or re-set this case to a later time.  The court is aware that this case is an old one, so the court’s general preference is to trail the matter.

On the MIL, the motion is DENIED.  It could be that if defendant attempts to produce evidence that was called for in discovery but not provided, the only proper response will be to exclude it, but the court will need to be sure it was clearly requested and even then, the court must consider other options.  As to whether it is otherwise admissible, the court will rule on any hearsay objections at the time and with the specific documents in hand and in context.