Corcoran et al v. CVS Health Corporation

Northern District of California, cand-4:2015-cv-03504

MOTION in Limine filed by Debbie Barrett, Tyler Clark, Robert Garber, Robert Jenks, Darlene McAfee, Stephen Sullivan, Carl Washington. Motion Hearing set for 5/13/2020 09:30 AM in Oakland, Courtroom 1, 4th Floor before Judge Yvonne Gonzalez Rogers. Responses due by 5/5/2020.

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4 Bonny E. Sweeney (Cal. Bar No. 176174) Robert B. Gilmore (admitted pro hac vice) 1 HAUSFELD LLP Edward H. Meyers (admitted pro hac vice) 2 600 Montgomery St., Suite 3200 STEIN MITCHELL BEATO & MISSNER LLP San Francisco, California 94111 901 15th Street, N.W., Suite 700 3 Tel: 415-633-1908 Washington, D.C. 20005 Fax: 415-358-4980 Tel: 202-737-7777 4 bsweeney@hausfeld.com Fax: 202-296-8312 rgilmore@steinmitchell.com 5 Richard Lewis (admitted pro hac vice) emeyers@steinmitchell.com 6 Sathya S. Gosselin (Cal. Bar No. 269171) HAUSFELD LLP Elizabeth C. Pritzker (Cal. Bar No. 146267) 7 1700 K St. NW, Suite 650 Jonathan K. Levine (Cal. Bar No. 220289) Washington, D.C. 20006 Caroline Corbitt (Cal. Bar No. 305492) 8 Tel: 202-540-7200 PRITZKER LEVINE LLP Fax: 202-540-7201 1900 Powell Street, Suite 450 9 rlewis@hausfeld.com Emeryville, California 94608 10 sgosselin@hausfeld.com Tel. 415-692-0772 Fax. 415-366-6110 11 ecp@pritzkerlevine.com jkl@pritzkerlevine.com 12 ccc@pritzkerlevine.com 13 Class Counsel 14 UNITED STATES DISTRICT COURT 15 NORTHERN DISTRICT OF CALIFORNIA OAKLAND DIVISION 16 Christopher Corcoran, et al., on behalf of Case No. 4:15-cv-03504-YGR-JSC 17 themselves and others similarly situated, 18 CLASS ACTION Plaintiffs, 19 v. PLAINTIFFS' NOTICE OF MOTIONS AND MOTIONS IN LIMINE NOS. 1-10 CVS Pharmacy, Inc., 20 Date: May 13, 2020 Defendant. Time: 9:30 a.m. 21 Courtroom: 1 22 Judge: Hon. Yvonne Gonzalez Rogers 23 24 25 26 27 28 PLAINTIFFS' MOTIONS IN LIMINE CASE NO. 4:15-CV-03504-YGR 4 TO: ALL PARTIES AND THEIR ATTORNEYS OF RECORD 1 PLEASE TAKE NOTICE that on May 13, 2020, at 9:30 a.m., in Courtroom 1, 4th Floor, before 2 the Honorable Yvonne Gonzalez Rogers, of the above-entitled Court, located at 1301 Clay Street, 3 Oakland, California 94612, Plaintiffs will and hereby do, through undersigned counsel, move the 4 Court for an Order granting the relief sought in Plaintiffs' Motions in Limine Nos. 1-10 set forth below. 5 Plaintiffs bring these motions pursuant to the Federal Rules of Evidence, the relevant case law, 6 and such other argument and evidence that the Court may consider at the hearing on these motions. 7 These motions are made following the exchange of motions and oppositions, and the 8 conference of counsel, pursuant to the Court's Pretrial Instructions and Order re Trial Scheduling (Dkt. 9 No. 425). 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PLAINTIFFS' MOTIONS IN LIMINE CASE NO. 4:15-CV-03504-YGR-JSC 1 4 1 TABLE OF CONTENTS TABLE OF CONTENTS .................................................................................................................. 2 2 LEGAL STANDARDS ..................................................................................................................... 7 3 A. Foundation ......................................................................................................................... 7 4 B. Relevance and Prejudice ................................................................................................... 7 5 C. Hearsay .............................................................................................................................. 7 I. MOTION IN LIMINE NO. 1: TESTIMONY AS TO THE PBMs' PURPORTED 6 UNDERSTANDING OR INTERPRETATON OF THE CVS-PBM CONTRACTS ............... 8 7 A. No Witness Is Authorized to Speak for or Provide Testimony Binding on Any PBM..... 8 B. The Proffered Testimony Would Prejudice Plaintiffs and Mislead the Jury .................... 9 8 C. Fact Testimony Not Based on Personal Knowledge Must be Excluded ......................... 11 9 II. MOTION IN LIMINE NO. 2: EVIDENCE CONCERNING OTHER PHARMACIES, AND 10 CONCERNING FEDERAL AND STATE GOVERNMENTAL ACTORS, RELATING TO CASH DISCOUNT PRICES AND U&C REPORTING. ....................................................... 12 11 A. Other Pharmacy U&C Reporting Practices are Irrelevant, Prejudicial and Confusing... 12 12 B. Government Statements and Actions Are Irrelevant, Prejudicial and Confusing ........... 15 13 III. MOTION IN LIMINE NO. 3: PLAINTIFFS' PURCHASES (OR POTENTIAL PURCHASES) FROM OTHER PHARMACIES. .................................................................. 16 14 IV. MOTION IN LIMINE NO. 4: CUMULATIVE EXPERT TESTIMONY .............................. 18 15 V. MOTION IN LIMINE NO. 5: REFERENCES TO PLAINTIFFS' CASE AS "LAWYER- DRIVEN", REFERENCES TO CIRCUMSTANCES UNDER WHICH PLAINTIFFS HIRED 16 THEIR LAWYERS, AND REFERENCES TO CLASS COUNSEL'S ATTORNEYS' FEES .............................................................................................................. 21 17 A. References to Litigation as "Lawyer-Driven" ................................................................. 21 18 B. References to Circumstances of Plaintiffs' Hiring of Their Lawyers ............................. 21 19 C. References to Class Counsel's Fees ................................................................................ 22 20 VI. MOTION IN LIMINE NO. 6: REFERENCES TO POTENTIAL CLASS REPRESENTATIVE FEE AWARDS..................................................................................... 23 21 VII. MOTION IN LIMINE NO. 7: PRECLUDE ARGUMENT THAT THE AMOUNT OF INDIVIDUAL OVERCHARGES WEIGHS AGAINST FINDING OF LIABILITY ............ 25 22 VIII. MOTION IN LIMINE NO. 8: CVS'S "GOOD" CORPORATE CONDUCT ................... 26 23 IX. MOTION IN LIMINE NO. 9: EXPERTS NOT TESTIFYING OR OPINIONS NOT 24 PRESENTED ........................................................................................................................... 28 X. MOTION IN LIMINE NO. 10: REQUIRING THAT ANY DEPOSITION VIDEO 25 TESTIMONY BE BIFURCATED, WITH DIRECT AND CROSS EXAMINATION 26 CLEARLY PRESENTED BY THE PROFFERING PARTY'S ATTORNEY. ..................... 30 27 28 PLAINTIFFS' MOTIONS IN LIMINE CASE NO. 4:15-CV-03504-YGR-JSC 2 4 TABLE OF AUTHORITIES 1 Page(s) 2 3 Cases 4 In re Air Crash Disaster, 86 F.3d 498 (6th Cir. 1996) ..................................................................................................... 19 5 AngioScore, Inc. v. TriReme Med., Inc., 6 No. 12-cv-03393-YGR, 2015 WL 4040388 (N.D. Cal. July 1, 2015) ...................................... 8 7 Blue Cross & Blue Shield of N.J., Inc. v. Philip Morris Inc., 8 199 F.R.D. 487 (E.D.N.Y. 2001) ...................................................................................... 30, 31 9 Bowe v. Pub. Storage, No. 14-cv-21559, 2015 WL 10857339 (S.D. Fla. June 2, 2015) ............................................ 21 10 Brazos River Authority v. GE Ionics, Inc., 11 469 F.3d 416 (5th Cir. 2006) ............................................................................................... 9, 11 12 Bright Harvest Sweet Potato Co. v. H.J. Heinz Co., No. 1:13-CV-296-BLW, 2015 WL 1138358 (D. Idaho Mar. 12, 2015) ................................. 11 13 14 Copart, Inc. v. Sparta Consulting, Inc., No. 2:14-cv-00046-KJM-CKD, 2018 WL 1871414 (E.D. Cal. Apr. 19, 2018) ..................... 14 15 Corcoran v. CVS Health Corp., 16 779 F. App'x 431 (9th Cir. 2019).................................................................................. 8, 10, 16 17 Corcoran v. CVS Health, No. 15-CV-03504-YGR, 2017 WL 1065135 (N.D. Cal. Mar. 21, 2017) ............................... 15 18 Dahlin v. Lyondell Chem. Co., 19 No. 3:14–cv–00085–SMR–HCA, 2016 WL 4690390 (S.D. Iowa Mar. 24, 2016)................. 28 20 Daly v. Far E. Shipping Co., 21 238 F. Supp. 2d 1231 (W.D. Wash. 2003) ................................................................................ 7 22 Dean, by Williams v. Watson, No. 93 C 1846, 1995 WL 692020 (N.D. Ill. Nov. 16, 1995) .................................................. 31 23 In re DePuy Orthopedics, Inc. Pinnacle Hip Implant Prods. Liab. Litig., 24 MDL 3:11-MD-2244-K, 2017 WL 9807464 (N.D. Tex. Sept. 19, 2017) ............................... 22 25 Diczok v. Celebrity Cruises, Inc., 26 No. 16-cv-21011, 2017 WL 3206327 (S.D. Fla. July 26, 2017) ............................................. 26 27 28 PLAINTIFFS' MOTIONS IN LIMINE CASE NO. 4:15-CV-03504-YGR-JSC 3 4 Doe v. Cutter Biological, Inc., 1 971 F.2d 375 (9th Cir. 1992) ................................................................................................... 12 2 Ecolab USA Inc. v. Diversey, Inc., 3 No. 12–CV–1984, 2015 WL 2353018 (D. Minn. May 15, 2015) ........................................... 28 4 Farr Man Coffee Inc. v. Chester, No. 88 Civ. 1692 (DNE), 1993 WL 248799 (S.D.N.Y. June 28, 1993) ................................. 31 5 Fed. Trade Comm'n v. Qualcomm Inc., 6 No. 17-CV-00220-LHK, 2018 WL 6615175 (N.D. Cal. Dec. 17, 2018).................................. 7 7 First Nat'l Bank of Louisville v. Lustig, 8 96 F.3d 1554 (5th Cir. 1996) ................................................................................................... 19 9 Fresenius Med. Care Holdings, Inc. v. Baxter Int'l, Inc., No. C 03-1431 SBA, 2006 WL 1627065 (N.D. Cal. June 13, 2006) ...................................... 10 10 United States ex rel. Garbe v. Kmart Corp, 11 824 F.3d 632 (7th Cir. 2016) ............................................................................................. 14, 15 12 Hart v. RCI Hospitality Holdings, Inc., 13 90 F. Supp. 3d 250 (S.D.N.Y. 2015) ....................................................................................... 21 14 JSR Micro, Inc. v. QBE Ins. Corp., No. C-09-03044 PJH (EDL), 2010 WL 1338152 (N.D. Cal. Apr. 5, 2010) ............................. 8 15 United States ex rel. Kiro v. Jiaherb, Inc., 16 CV 14-2484-RSWL-PLAX, 2019 WL 2869186 (C.D. Cal. July 3, 2019) ............................. 26 17 Miller ex rel. Miller v. Ford Motor Co., No. 2:01-cv-545-FTM-29DNF, 2004 WL 4054843 (M.D. Fla. July 22, 2004) ..................... 26 18 19 New Jersey v. Sprint Corp., No. 03–2071–JWL, 2010 WL 610671 (D. Kan. Feb. 19, 2010) ............................................... 8 20 Ohio Six Ltd. v. Motel 6 Operating L.P., 21 No. CV 11-08102 MMM (EX), 2013 WL 12125747 (C.D. Cal. Aug. 7, 2013) ..................... 14 22 Park W. Radiology v. CareCore Nat. LLC, 675 F. Supp. 2d 314 (S.D.N.Y. 2009) ............................................................................... 13, 16 23 24 Positive Ions, Inc. v. Ion Media Networks, Inc., CV 06-4296 ABC (FFMx), 2007 WL 9701734 (C.D. Cal. Nov. 7, 2007) ............................. 22 25 In re Qualcomm Antitrust Litig., 26 328 F.R.D. 280 (N.D. Cal. 2018) ............................................................................................ 25 27 28 PLAINTIFFS' MOTIONS IN LIMINE CASE NO. 4:15-CV-03504-YGR-JSC 4 4 Quaranta v. Mgmt. Support, 1 255 F. Supp. 2d 1040 (D. Ariz. 2003) ..................................................................................... 11 2 Radware, Ltd. v. F5 Networks, Inc., 3 No. 13-cv-02024-RMW, 2016 WL 590121 (N.D. Cal. Feb. 13, 2016) .................................. 29 4 Rogers v. Raymark Indus., Inc., 922 F.2d 1426 (9th Cir. 1991) ................................................................................................. 18 5 Samsung Electronics Co., v. NVIDIA Corp., 6 No. 3:14-CV-757, 2016 WL 754547 (E.D. Va. Feb. 24, 2016) .............................................. 21 7 SEC v. Hemp, 8 No. 2:16-cv-01413-JAD-PAL, 2018 WL 4566664 (D. Nev. Sept. 24, 2018) .......................... 9 9 Sheppard v. Consol. Edison Co. of N.Y., Inc., No. 94-cv-0403, 2002 WL 2003206 (E.D.N.Y. Aug. 1, 2002) ............................................... 23 10 Sunstar, Inc. v. Alberto-Culver Co., 11 No. 01 C 0736, 2004 WL 1899927 (N.D. Ill. Aug. 23, 2004) ................................................ 19 12 In re Testosterone Replacement Therapy Prods. Liab. Litig., 13 No. 14-cv-1748, 2017 WL 2313201 (N.D. Ill. May 29, 2017) ............................................... 26 14 In re Toys R Us-Del., Inc.- Fair & Accurate Credit Transactions Act (FACTA) Litig., 15 295 F.R.D. 438 (C.D. Cal. 2014) ............................................................................................ 23 16 Tran v. Toyota Motor Corp., 420 F.3d 1310 (11th Cir. 2005) ............................................................................................... 19 17 In re: Tylenol (Acetaminophen) Mktg., Sales Practices & Prods. Liab. Litig., 18 MDL No. 2436, 2016 WL 3125428 (E.D. Pa. June 3, 2016)............................................ 22, 26 19 United States v. Connolly, 20 No. 16 CR. 370 (CM), 2019 WL 2125044 (S.D.N.Y. May 2, 2019) ...................................... 13 21 United States v. Frazier, 387 F.3d 1244 (11th Cir. 2004) ............................................................................................... 19 22 United States v. Hicks, 23 103 F.3d 837 (9th Cir. 1996) ................................................................................................... 18 24 United States v. Mendlowitz, 25 No. S2 17 CR 248 (VSB), 2019 WL 6977120 (S.D.N.Y. Dec. 20, 2019) .............................. 13 26 United States v. Olano, 62 F.3d 1180 (9th Cir. 1995) ............................................................................................... 7, 10 27 28 PLAINTIFFS' MOTIONS IN LIMINE CASE NO. 4:15-CV-03504-YGR-JSC 5 4 United States v. Oldbear, 1 568 F.3d 814 (10th Cir. 2009) ................................................................................................. 13 2 In re Vioxx Prods. Liab. Litig., 3 MDL No. 1657, 2005 WL 3164251 (E.D. La. Nov. 18, 2005) ............................................... 26 4 In re Welding Fume Prods. Liab. Litig., 1:03-CV-17000, 2010 WL 7699456 (N.D. Ohio June 4, 2010).............................................. 22 5 In re Yasmin & Yaz (Drospirenone) Mktg., Sales Practices & PMF Prods. Liab. 6 Litig., 7 3:09-CV-10012-DRH, 2011 WL 6740391 (S.D. Ill. Dec. 22, 2011) ................................ 22, 31 8 Rules 9 Fed. R. Civ. P. 30(b)(6) ................................................................................................................. 10 10 Fed. R. Civ. P. 32(a)(6) ................................................................................................................. 32 11 Fed. R. Evid. 106 ........................................................................................................................... 32 12 Fed. R. Evid. 401 .................................................................................................................... passim 13 Fed. R. Evid. 402 ....................................................................................................................... 8, 14 14 Fed. R. Evid. 403 .................................................................................................................... passim 15 Fed. R. Evid. 602 ....................................................................................................................... 8, 12 16 Fed. R. Evid. 701 ................................................................................................................... 8, 9, 10 17 Fed. R. Evid. 801 ............................................................................................................................. 7 18 Fed. R. Evid. 802 ....................................................................................................................... 7, 11 19 Other Authorities 20 R. Klonoff & P. Colby, Winning Jury Trials § 1.0(1) (2d ed. 2002) ............................................ 32 21 22 W. LaFave & J. Israel, Crim. Proc. § 1.6 (1985) .......................................................................... 32 23 Wright & Miller, Fed. Prac. & Proc. Civ. § 2148 ......................................................................... 33 24 25 26 27 28 PLAINTIFFS' MOTIONS IN LIMINE CASE NO. 4:15-CV-03504-YGR-JSC 6 4 1 LEGAL STANDARDS 2 "The Court has broad discretion to manage the conduct of a trial and the evidence presented 3 by the parties." Fed. Trade Comm'n v. Qualcomm Inc., No. 17-CV-00220-LHK, 2018 WL 6615175, 4 at *2 (N.D. Cal. Dec. 17, 2018) (citing Navellier v. Sletten, 262 F.3d 923, 941-42 (9th Cir. 2001)). 5 A. Foundation 6 "A witness may testify to a matter only if evidence is introduced sufficient to support a finding 7 that the witness has personal knowledge of the matter. Evidence to prove personal knowledge may 8 consist of the witness's own testimony." Fed. R. Evid. ("FRE") 602. Lay testimony is permitted only 9 if evidence is introduced sufficient to support a finding that the witness has personal knowledge of the 10 matter—meaning the opportunity to observe an event and actual observation of an event. Daly v. Far 11 E. Shipping Co., 238 F. Supp. 2d 1231, 1237 (W.D. Wash. 2003) (discussing FRE 602). Lay opinion 12 testimony must be rationally based on a witness's perception, or helpful to clearly understand the 13 witness's testimony or to determining a fact in issue, and not based on scientific, technical, or other 14 specialized knowledge within the scope of FRE 702. FRE 701. 15 B. Relevance and Prejudice 16 "Irrelevant evidence is not admissible." FRE 402. "Evidence is relevant if: (a) it has any 17 tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact 18 is of consequence in determining the action." FRE 401. Even relevant evidence, however, may be 19 excluded "if its probative value is substantially outweighed by a danger of. . . unfair prejudice, 20 confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting 21 cumulative evidence." FRE 403; see United States v. Olano, 62 F.3d 1180, 1204 (9th Cir. 1995) ("trial 22 courts have very broad discretion in applying Rule 403") (internal citation and quotation omitted). 23 C. Hearsay 24 Hearsay—an out of court "oral assertion, written assertion, or nonverbal conduct, if the person 25 intended it as an assertion"—is inadmissible, absent a legal exception or statutory authorization for 26 admissibility. FRE 801, 802. 27 28 PLAINTIFFS' MOTIONS IN LIMINE CASE NO. 4:15-CV-03504-YGR-JSC 7 4 I. MOTION IN LIMINE NO. 1: TESTIMONY AS TO THE PBMs' PURPORTED 1 UNDERSTANDING OR INTERPRETATON OF THE CVS-PBM CONTRACTS 2 CVS seeks to present testimony of six former pharmacy benefit manager ("PBM") employees 3 (Joseph Zavalishin, Michael Reichardt, Franceen Spadaccino, William Strein, Cal Corum, and 4 William Barre) and a current PBM employee (Amber Compton) regarding the "usual and customary" 5 ("U&C") terms in the five CVS-PBM agreements at issue (the "PBM agreements"). CVS plainly may 6 not use this testimony at trial to argue, as it did at summary judgment, that the PBMs "were not 7 deceived" by CVS's failure to report its HSP prices as U&C. The Ninth Circuit squarely rejected the 8 relevance of this argument in this case.1 Beyond the foregoing, however, there are numerous other 9 deficiencies in this testimony that require it to be excluded or limited at trial. 10 A. No Witness Is Authorized to Speak for or Provide Testimony Binding on Any PBM 11 CVS has made plain in prior filings that one of its defenses is "[t]he PBMs attached the same 12 meaning to the U&C provision as did CVS."2 But, CVS cannot satisfy the fundamental evidentiary 13 requirement for this testimony under FRE 701 – at least, not for CVS's intended trial purpose, which 14 is to convey to the jury the corporate positions of the PBMs as to the meaning of the U&C terms in 15 the PBM agreements. To bind a PBM, the testimony must be in the form of corporate representative 16 testimony procured under Fed. R. Civ. P. 30(b)(6). This is the very purpose of Rule 30(b)(6): 17 [It] allows an organization to designate an individual to 'testify on its behalf.' The 18 testimony provided by a corporate representative at a 30(b)(6) deposition binds the corporation. This is quite unlike a deposition of an employee of that corporation, which 19 is little more than that individual employee's view of the case and is not binding on the corporation. 20 21 New Jersey v. Sprint Corp., No. 03–2071–JWL, 2010 WL 610671, at *2 (D. Kan. Feb. 19, 2010). The 22 courts in this District are in accord on this point.3 23 1 Corcoran v. CVS Health Corp., 779 F. App'x 431, 433 (9th Cir. 2019) ("Contrary to CVS's assertion, 24 plaintiffs need not produce evidence that the PBMs believed that CVS misrepresented the U&C price. It is enough for plaintiffs to show that CVS failed to report the HSP prices as U&C prices contrary to 25 the PBM contracts, and that, as a result, plaintiffs were charged higher copayments."). 2 See, e.g., Corcoran v. CVS Health Corp., No. 17-16996 (9th Cir.), Appellate Dkt. No. 20 at 41 26 ("App. Dkt.") (emphasis added). 3 AngioScore, Inc. v. TriReme Med., Inc., No. 12-cv-03393-YGR, 2015 WL 4040388, at *23 (N.D. 27 Cal. July 1, 2015) ("A Rule 30(b)(6) deposition notice serves a unique function: it is the sworn corporate admission that is binding on the corporation."); JSR Micro, Inc. v. QBE Ins. Corp., No. C- 28 PLAINTIFFS' MOTIONS IN LIMINE CASE NO. 4:15-CV-03504-YGR-JSC 8 4 1 The Fifth Circuit's analysis in Brazos River Authority v. GE Ionics, Inc., 469 F.3d 416 (5th 2 Cir. 2006), is instructive. In an appeal alleging erroneous evidentiary rulings during a jury trial, the 3 Fifth Circuit held it proper to admit an employee's testimony about a defendant's corporate "position" 4 precisely because the employee had given deposition testimony on the issue as a corporate designee 5 under Rule 30(b)(6). The Court held, while "there is no rule requiring that the corporate designee 6 testify 'vicariously' at trial, as distinguished from at the rule 30(b)(6) deposition," if the testimony is 7 offered at trial it must adhere to the rule's mandate that the witness is in fact authorized to testify for 8 and bind the company. Id. at 434. 9 Here, CVS made no effort to lay a foundation that would enable the PBM employees CVS 10 intends to put forward to testify on matters within the corporate knowledge of the PBMs. CVS had 11 every opportunity to subpoena the PBMs and to obtain and preserve their corporate positions on the 12 meaning of the U&C terms in the PBM agreements and on other topics through a Rule 30(b)(6) 13 subpoena, yet chose not to do so. As a result, all of these witnesses testified solely in their individual 14 capacities, usually as former employees, and not as corporate representatives authorized to testify on 15 behalf of or bind the PBMs consistent with Rule 30(b)(6). No evidentiary rule allows a party to "invoke 16 Rule 30(b)(6) or a similar process sua sponte to designate another organization's representative to 17 offer sworn testimony on behalf of that organization."4 Because CVS cannot satisfy FRE 701 to show 18 that these witnesses are authorized to represent "the PBMs'" position, the Court should exclude their 19 testimony at trial. 20 B. The Proffered Testimony Would Prejudice Plaintiffs and Mislead the Jury 21 As discussed, the individual views of these largely former PBM employees are just that: they 22 are not binding on the PBMs and not relevant to the issue of the corporate positions of the PBMs as 23 to the meaning of the U&C terms in the PBM agreements. Given their lack of relevance, the Court 24 should exclude testimony on these matters under FRE 401, 402 and 403. 25 09-03044 PJH (EDL), 2010 WL 1338152, at *11 (N.D. Cal. Apr. 5, 2010) ("The testimony elicited at 26 the Rule 30(b)(6) deposition represents the knowledge of the corporation, not of the individual deponents. The designated witness is 'speaking for the corporation,'…." (internal citation omitted)). 4 27 SEC v. Hemp, Inc., No. 2:16-cv-01413-JAD-PAL, 2018 WL 4566664, at *2-3 (D. Nev. Sept. 24, 2018). 28 PLAINTIFFS' MOTIONS IN LIMINE CASE NO. 4:15-CV-03504-YGR-JSC 9 4 1 "[C]ourts have very broad discretion in applying Rule 403" and may exclude any evidence 2 likely to confuse or mislead the jury at trial.5 An order excluding this testimony is the appropriate 3 remedy here. Exclusion ensures that no juror will improperly misconstrue these witnesses' testimony 4 as "speaking for the corporation" merely because these individuals work or once worked at a PBM.6 5 CVS has in fact urged this very misconstruction. It told the Ninth Circuit: 6 The PBMs testified that the U&C prices submitted by CVS during the existence of the 7 HSP program were not misrepresentations, because CVS and The PBMs attached the same meaning to the contractual definition of "U&C." The PBMs therefore did not 8 believe CVS was obligated to submit the HSP price as the U&C price. 9 App. Dkt. No. 20 at 24-25 (emphasis added).7 And, CVS clearly intends to continue this misdirection 10 before the jury. To avoid jury confusion and prejudice, the Court should exclude these witnesses from 11 testifying on these matters at trial, particularly given the skepticism expressed by the Ninth Circuit as 12 to the timing and nature of CVS's evidence on the contract interpretation question.8 13 If the Court declines to exclude these witnesses, the Court must, at minimum, instruct the jury 14 that these persons are not authorized to speak "for the PBMs" or for any single PBM, and cannot 15 testify as the corporate positions of "the PBMs" or any PBM about the U&C terms in the PBM 16 agreements.9 CVS's counsel must also be prohibited from referring to them or their testimony as "the 17 PBMs" or any PBM, including during opening and closing statements and questioning of witnesses at 18 trial. 19 5 United States v. Olano, 62 F.3d 1180, 1204 (9th Cir. 1995) (internal citation omitted). 20 6 See Fresenius Med. Care Holdings, Inc. v. Baxter Int'l, Inc., No. C 03-1431 SBA, 2006 WL 1627065, at *1 (N.D. Cal. June 13, 2006) (referencing Advisory Committee Notes to FRE 403 and noting that 21 "'[u]ndue prejudice' within [the context of FRE 403] means an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one."). 22 7 See also CVS's summary judgment briefing (Dkt. Nos. 271 at 1-2, 4-9, 12-15; 271-1 at Facts 42-46, 52, 55-66, 69-70; 315 at 1, 12-13); class certification opposition brief (Dkt. No. 301 at 3); Dr. Joel 23 Hay Daubert briefing (Dkt. Nos. 287 at 8; 316 at 3); and Appellate brief (App. Dkt. No. 20 at 9-15, 31-32, 41). 24 8 See, e.g., Corcoran, 779 F. App'x at 433 ("Although CVS and the PBMs agreed during this litigation (as opposed to when the agreements were negotiated) that the PBM contracts did not require 25 CVS to submit its HSP prices as the U&C prices, plaintiffs proffered 'some evidentiary support for [their] competing interpretation[] of the contract[s'] language.'") (emphasis added, internal citations 26 omitted)). 9 See FRE 403 Advisory Committee Notes (1972) ("In reaching a decision whether to exclude on 27 grounds of unfair prejudice, consideration should be given to the probable effectiveness or lack of effectiveness of a limiting instruction."). 28 PLAINTIFFS' MOTIONS IN LIMINE CASE NO. 4:15-CV-03504-YGR-JSC 10 4 1 C. Fact Testimony Not Based on Personal Knowledge Must be Excluded 2 The Court is required under FRE 602 and FRE 802 to exclude any PBM employee testimony 3 for which the witness lacks personal knowledge or is based on hearsay. The Court must exclude all 4 testimony from Michael Reichardt and Joseph Zavalishian from Optum, as well as Franceen 5 Spadaccino, William Strein, and Cal Corum from Medco. Mr. Reichardt and Mr. Zavalishin were not 6 even at Optum during the Optum class period and had no involvement in the negotiation, 7 implementation or enforcement of the June 1999 CVS-Optum agreement at issue or in the negotiation 8 of the January 2015 CVS-Optum agreement that replaced it.10 Ms. Spadaccino, Mr. Strein and Mr. 9 Corum were at Medco for some of the class period; however, none of them negotiated the operative 10 CVS-Medco agreement, and all three testified at deposition that they were unaware of, declined 11 responsibility for, or did not recall key facts relating to the implementation or enforcement of that 12 agreement.11 13 As to any witness for whom CVS can show personal knowledge, the Court must ensure their 14 testimony is limited only to facts of which they have such knowledge. The Court must exclude 15 testimony by these individuals that: (1) a topic or subject matter was "the talk of the office";12 16 (2) speaks to the subjective intent of the PBMs in entering into the PBM agreements (especially where 17 that intent does not appear in communications of which the witness has personal knowledge);13 18 (3) interprets the PBM agreement or its U&C terms; or (4) requires expert qualifications.14 If the Court 19 declines exclusion, limiting instructions are again necessary to ensure that these witnesses' personal 20 views are not misconstrued as testimony on behalf of or binding on the PBMs or any single PBM. 21 22 10 See Declaration of Jonathan K. Levine ("Levine Decl."), Exs. A-C. Any testimony from Mr. 23 Zavalishin about his employment at Aetna also must be excluded under FRE 401 because the CVS-Aetna agreement is no longer at issue in the litigation. 11 24 See Levine Decl., Exs. D-F. 12 Quaranta v. Mgmt. Support, 255 F. Supp. 2d 1040, 1050 (D. Ariz. 2003). 13 25 See Bright Harvest Sweet Potato Co. v. H.J. Heinz Co., No. 1:13-CV-296-BLW, 2015 WL 1138358, at *4-5 (D. Idaho Mar. 12, 2015) ("witnesses may testify to Heinz's subjective intent in entering the 26 [agreement], but only to the extent that that Heinz disclosed its subjective intent to Bright Harvest through those communications."). 14 27 Brazos, 469 F.3d at 434-35 (holding that even a qualified 30(b)(6) designee can attest only to facts and cannot interpret contract terms or express any opinion on the issue of breach). 28 PLAINTIFFS' MOTIONS IN LIMINE CASE NO. 4:15-CV-03504-YGR-JSC 11 4 II. MOTION IN LIMINE NO. 2: EVIDENCE CONCERNING OTHER PHARMACIES, 1 AND CONCERNING FEDERAL AND STATE GOVERNMENTAL ACTORS, 2 RELATING TO CASH DISCOUNT PRICES AND U&C REPORTING. Pursuant to FRE 401, 402, and 403, the Court should preclude CVS from introducing evidence 3 or argument about whether pharmacies other than CVS did or did not report discount prices as U&C 4 prices. This trial is about CVS's conduct: whether CVS's HSP prices qualified as U&C prices under 5 its contractual obligations with the class PBMs, and whether, by not reporting that price as U&C, CVS 6 engaged in false and deceptive conduct. The only parties at issue here are the insured customer class 7 members and CVS, with the allegation centered on CVS overcharging Plaintiffs. Any reference to 8 actions taken by a non-CVS pharmacy in relation to discount prices and U&C reporting is irrelevant, 9 confusing and prejudicial. 10 For similar reasons, the Court should exclude evidence or argument concerning federal or state 11 governmental actors' positions on U&C reporting, including regulations, litigation and enforcement 12 actions. Introduction of such evidence would necessarily require exploration of different regulatory 13 schemes and legal claims/defenses and would risk turning the trial into a series of mini-trials that 14 would confuse the jury and distract the parties from the issues at hand. 15 A. Other Pharmacy U&C Reporting Practices are Irrelevant, Prejudicial and Confusing 16 While CVS has argued that a small number of non-CVS pharmacy chains (including KMart 17 and Walgreens) also did not submit their membership program cash discount prices as U&C, to the 18 extent that CVS has admissible evidence regarding these non-CVS pharmacy practices and urges from 19 that evidence some form of uniform industry conduct, such industry conduct does not mean that CVS 20 complied with the relevant contractual terms, nor does it immunize CVS from liability for unfair 21 and deceptive conduct. The Ninth Circuit's admonition in Doe v. Cutter Biological, Inc., although in 22 another context, is apt and particularly instructive: 23 24 [I]t is well-settled that "[p]roof of adherence to an industry practice or custom is not dispositive on the issue of negligence," Martinez v. Korea Shipping Corp., 903 25 F.2d 606, 610 (9th Cir. 1990), because "what ought to be done is fixed by a standard of reasonable prudence, whether it usually is complied with or not." Texas & 26 Pacific Ry. Co. v. Behymer, 189 U.S. 468, 470, 23 S.Ct. 622, 622, 47 L.Ed. 905 27 (1903). The possibility that industry standards may fall short of reasonable care is 28 PLAINTIFFS' MOTIONS IN LIMINE CASE NO. 4:15-CV-03504-YGR-JSC 12 4 particularly acute, we believe, in a situation such as this where the entire industry 1 is comprised of only four manufacturers. Here, the individual manufacturers may 2 have a far greater influence and control over "industry" standards than do members of industries with greater numbers of participants. 3 4 971 F.2d 375, 383 (9th Cir. 1992). Other courts have reached the same conclusion. "'[E]verybody is 5 doing it' is not a defense [for fraudulent and deceptive conduct]; just as 'everybody speeds' is not a 6 defense if your car happens to get picked up on the radar." United States v. Connolly, No. 16 CR. 370 7 (CM), 2019 WL 2125044, at *13 (S.D.N.Y. May 2, 2019). See also United States v. Oldbear, 568 8 F.3d 814, 821 (10th Cir. 2009) (district court properly excluded as irrelevant and prejudicial testimony 9 that other similar individuals engaged in the same conduct as defendant, in order to exculpate 10 defendant); United States v. Mendlowitz, No. S2 17 CR 248 (VSB), 2019 WL 6977120, at *5 11 (S.D.N.Y. Dec. 20, 2019) (holding that the jury did not need to understand general industry practices 12 at issue in order to reach a verdict because the issue the jury was tasked with was deciding whether 13 "Defendant's actions and/or statements during the relevant period" violated the law). Thus, such 14 evidence would not make any fact more or less likely to be established and, therefore, is irrelevant 15 under FRE 402. 16 Further, permitting CVS to mount an "everybody was doing it" defense of its conduct would 17 inevitably turn the proceeding into a morass of trials within trials and thus would be unduly prejudicial. 18 Rather than focus on CVS's conduct, the parties would seek to present evidence and argument over 19 the features of other pharmacies' U&C reporting, cash discount prices, membership programs, 20 contractual obligations, communications with other entities such as PBMs and payers, and so on. 21 Allowing this evidence would render the trial unmanageable and would significantly confuse and 22 distract the jurors, who would be required to keep straight and evaluate separately the evidence 23 concerning each pharmacy and then compare that evidence to CVS's own conduct. 24 For these reasons, courts frequently exclude evidence of non-parties' conduct where it "pose[s] 25 the risk of turning the trial into a 'multi-ringed sideshow of mini-trials on collateral issues pertaining 26 to the conduct and relationships of third parties that may have only tangential bearing, if at all, to the 27 issues and claims disputed in this case.'" Park W. Radiology v. CareCore Nat. LLC, 675 F. Supp. 2d 28 PLAINTIFFS' MOTIONS IN LIMINE CASE NO. 4:15-CV-03504-YGR-JSC 13 4 1 314, 325 (S.D.N.Y. 2009) (quotation omitted) (granting plaintiffs' motion to exclude references to 2 nonparties' conduct). See also Copart, Inc. v. Sparta Consulting, Inc., No. 2:14-cv-00046-KJM-CKD, 3 2018 WL 1871414, at *7 (E.D. Cal. Apr. 19, 2018) (excluding evidence of third-party disputes because 4 the "evidence [was] substantially more prejudicial then probative. It likely will confuse issues, mislead 5 the jury, and waste time because the evidence will spawn collateral mini-trials to disprove or rebut the 6 evidence offered by Sparta of disputes with third-party vendors."); Ohio Six Ltd. v. Motel 6 Operating 7 L.P., No. CV 11-08102 MMM (EX), 2013 WL 12125747, at *10 (C.D. Cal. Aug. 7, 2013) (holding 8 that it was proper to exclude evidence under FRE 403 that gave rise to a "danger of confusing the 9 issues and wasting time with mini-trials") (citing United States v. Jones, 123 F. App'x. 773, 775 (9th 10 Cir. Feb. 14, 2005)). 11 If, however, the Court finds that evidence related to non-CVS pharmacies is admissible, then 12 Plaintiffs should be allowed to elicit testimony and introduce documents that place that evidence in 13 context, including evidence of investigations and litigation by government actors, consumers, and third 14 party payers challenging those non-CVS pharmacies' practices.15 The jury is charged with determining 15 whether CVS failed to report its U&C price correctly. Having heard that other pharmacies have 16 engaged in similar conduct, the jury must also hear the rest of the story—that those other pharmacies 17 have been sued and even settled lawsuits over the same conduct challenged in this case. Admission of 18 this evidence would not prejudice CVS, since CVS would have opened the door as to other industry 19 participant evidence. In contrast, if CVS were allowed to introduce testimony or evidence of what 20 other pharmacies did with respect to membership programs and U&C prices, then it would be unduly 21 prejudicial for Plaintiffs to be barred from presenting evidence of litigation against those other 22 pharmacies for their failure to report the U&C price correctly. 23 24 25 15 Such evidence would include, for example, evidence that Walgreens recently settled an action 26 brought by the United States challenging its failure to report its discount program prices as U&C (Levine Decl., Ex. G); evidence that the United States challenged Kmart's practices in United States 27 ex rel. Garbe v. Kmart Corp, 824 F.3d 632, 645 (7th Cir. 2016); and evidence that consumers have brought similar lawsuits against Walgreens (Levine Decl., Ex. H) and Rite-Aid (Id., Ex. I). 28 PLAINTIFFS' MOTIONS IN LIMINE CASE NO. 4:15-CV-03504-YGR-JSC 14 4 1 B. Government Statements and Actions Are Irrelevant, Prejudicial and Confusing 2 Similarly, introduction of evidence about the various federal and state regulations concerning 3 U&C pricing, and litigation and investigative actions by federal and state governmental actors, will 4 require a case-by-case discussion of those regulations and cases.16 That approach cannot help but 5 require multiple mini-trials on these matters. Each side has throughout the litigation pointed to 6 different aspects of federal or state regulations or litigations as supportive of their position, but the 7 Court largely has rejected those sorts of arguments. See, e.g., Corcoran v. CVS Health, No. 15-CV- 8 03504-YGR, 2017 WL 1065135, at *6 n.13 (N.D. Cal. Mar. 21, 2017) (distinguishing Garbe, 824 9 F.3d at 645: "[t]he Seventh Circuit in Garbe specifically addressed the definition of U&C as it was 10 'included in state regulations, plans, and contracts related to Medicare Part D ... as required by the 11 Medicare and Medicaid regulations.' … Such is not the case here where no identifiable regulations 12 bind the contracts at issue. In fact, the Seventh Circuit acknowledged individual state regulations could 13 provide a different definition, and in such a case, that definition would apply to that state's contracts.") 14 (quotation omitted). 15 Therefore, the Court should exclude any reference to what federal or state regulators have said 16 or done in relation to membership prices and U&C reporting.17 If, however, the Court allows in such 17 evidence, the Court should also allow Plaintiffs to introduce evidence of governmental investigation 18 and litigation against CVS and other pharmacies for the purpose of rebutting any argument or 19 implication that CVS was just following the accepted (and fair) industry practice.18 20 21 22 16 23 Plaintiffs expect CVS will attempt to introduce, for example, evidence of a Health & Human Services position statement dated August 2009 (Levine Decl., Ex. J), as well as evidence that 24 Connecticut and Oregon changed their Medicaid regulations. 17 To be clear, Plaintiffs are not seeking the exclusion of underlying evidence (e.g., documents, 25 depositions, or trial testimony) produced or generated in such lawsuits that is otherwise relevant and admissible in this case. Such evidence can and should be introduced at trial here without reference to 26 the name or nature of the lawsuit in which it was originally adduced. 18 Such evidence would include, for example, the Texas Attorney General's lawsuit against CVS, 27 which CVS settled for $22 million (Levine Decl., Ex. K), and evidence that the federal government investigated CVS's failure to report HSP prices as U&C (Id., Ex. L). 28 PLAINTIFFS' MOTIONS IN LIMINE CASE NO. 4:15-CV-03504-YGR-JSC 15 4 III. MOTION IN LIMINE NO. 3: PLAINTIFFS' PURCHASES (OR POTENTIAL 1 PURCHASES) FROM OTHER PHARMACIES. 2 The Court should preclude CVS from attempting, directly or indirectly, to argue or introduce 3 evidence suggesting that Plaintiffs could have shopped at another pharmacy or other location for their 4 relevant prescriptions during the class period. Any attempt by CVS to argue that any Plaintiff could 5 have or should have shopped at another pharmacy or other location for the relevant prescriptions 6 during the class period is not probative of any issue in the case, as it does not make the existence of 7 any fact or consequence to the action more or less probable. FRE 401. The issue is whether any or 8 each of the Plaintiffs purchased qualifying prescriptions at CVS during the class period, not whether 9 they could have purchased the prescription elsewhere. Cf. Corcoran, 779 F. App'x at 433 ("It is 10 enough for plaintiffs to show that CVS failed to report the HSP prices as U&C prices contrary to the 11 PBM contracts, and that, as a result, plaintiffs were charged higher copayments."). And as this Court 12 previously observed, "the evidence proffered by defendants does not sufficiently demonstrate that 13 potential class members … knew of the allegedly deceptive practices." 2017 WL 3873709, at *7. 14 Whether Plaintiffs could have filled their prescriptions at other pharmacies is irrelevant, because 15 Plaintiffs and class members were not aware of CVS's misconduct in overcharging them for those 16 prescriptions. 17 Furthermore, if such speculation is allowed, it would undoubtedly confuse and prejudice the 18 jury, as it will force the parties to present competing information about whether such other pharmacies 19 accepted Plaintiffs' insurance; the pricing available at other pharmacies; the proximity and 20 convenience of those other pharmacies; and, as discussed above (see supra Motion in Limine No. 2), 21 whether such other pharmacies, too, engaged in overpricing conduct similar to CVS's, and thus 22 whether Plaintiffs also would have suffered similar wrongdoing had they purchased their prescriptions 23 at other pharmacies. This sort of frolic and detour—multiplied seven times over for each of the named 24 Plaintiffs—would without question turn the trial into a "'multi-ringed sideshow of mini-trials on 25 collateral issues pertaining to the conduct and relationships of third parties that may have only 26 tangential bearing, if at all, to the issues and claims disputed in this case.'" Park W. Radiology, 675 F. 27 Supp. 2d at 325 (quotation omitted). 28 PLAINTIFFS' MOTIONS IN LIMINE CASE NO. 4:15-CV-03504-YGR-JSC 16 4 1 Therefore, this Court should preclude evidence of whether any or each Plaintiff could or should 2 have purchased their prescription drugs elsewhere. 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PLAINTIFFS' MOTIONS IN LIMINE CASE NO. 4:15-CV-03504-YGR-JSC 17 4 IV. MOTION IN LIMINE NO. 4: CUMULATIVE EXPERT TESTIMONY 1 Pursuant to FRE 403, the Court should exclude the duplicative testimony of three of CVS's 2 proffered expert witnesses: Pamela Wyett, John Jones, and Edward McGinley. These three experts 3 submitted separate expert reports and rebuttal expert reports in which they provided nearly identical 4 testimony, crafted in nearly identical language. Because FRE 403 prohibits parties from "needlessly 5 presenting cumulative evidence," CVS should be precluded from offering duplicative testimony at 6 trial. To hold otherwise would be unfairly prejudicial and would waste the jury's and the Court's time. 7 The Court has discretion to exclude expert testimony "if its probative value is substantially 8 outweighed by a danger of" "unfair prejudice," "undue delay, wasting time, or needlessly presenting 9 cumulative evidence." FRE 403. "The district court has considerable latitude in performing the Rule 10 403 balancing test." Rogers v. Raymark Indus., Inc., 922 F.2d 1426, 1430 (9th Cir. 1991). "The district 11 court is not required to admit expert testimony every time a party is able to make the threshold Daubert 12 showing." United States v. Hicks, 103 F.3d 837, 847 (9th Cir. 1996) (emphasis omitted). 13 Even a cursory comparison of Wyett's, Jones's and McGinley's opinions confirms that they 14 proffer cumulative and duplicative testimony.19 15 Wyett Jones McGinley 16 "HSP members were not cash "[A] customer using a "A 'cash customer' is a customer 17 customers because their pharmacy benefit is not a who pays for a prescription purchases involved a cash customer." without using any type of benefit 18 prescription benefit." program…." 19 "I am not aware of any "U&C is not determined based "Pharmacies do not determine pharmacy that submits its most on the price point most their U&C based on the 'most 20 frequently charged price to any frequently charged." frequently charged' price…." 21 PBM as its U&C…." 22 "HSP's membership-program "[M]embership program "Membership-program pricing prices were not 'discounts' as pricing was not a 'discount' or is not a 'discount,' as 23 that term would generally be 'applicable discount" for individuals who work in the 24 used in the pharmacy and PBM purpose of submitting U&C, industry understand." industries." even when a contract required 25 inclusion of discounts." 26 19 Copies of the Wyett, Jones and McGinley expert reports are attached as Exhibits M-O, respectively, 27 to the Levine Decl. Copies of the Wyett, Jones and McGinley expert rebuttal reports are attached as Exhibits P-R, respectively, to the Levine Decl. 28 PLAINTIFFS' MOTIONS IN LIMINE CASE NO. 4:15-CV-03504-YGR-JSC 18 4 "Dr. Navarro asserts that the "Dr. Navarro claims that the 1 purpose of insurance is to provide purpose of insurance is to 2 customers with the lowest prices enable beneficiaries to possible in each individual 'obtain the lowest possible 3 transaction. … Dr. Navarro's prescription costs.' … That understanding in these regards is opinion is incorrect." 4 errant and incomplete." 5 "'[I]ndividuals using cash' is not "'[U]sing cash' is not "Nor is a 'cash' transaction 6 the linchpin because customers actually a distinguishing necessarily an instance when t filling a prescription with a factor insofar as Dr. Navarro the customer himself or herself 7 prescription benefit sometimes uses that phrase as meaning, pays 100% of the cost of the do so by paying cash to a for a given prescription, prescription." 8 pharmacy." 100% of the cost was paid by the member." 9 10 "Dr. Navarro's opinion that "Dr. Navarro's conclusion "Dr. Navarro's opinion that Health Savings Pass ('HSP') was that HSP was not a 'bona Health Savings Pass ('HSP') was 11 not a 'bona fide' membership fide' membership program not a 'bona fide' membership program suffers from multiple … is incorrect" program is inaccurate." 12 errors." 13 Multiple expert witnesses offering copycat testimony "raise[] the unfair possibility that jurors 14 will resolve competing expert testimony by 'counting heads' rather than evaluating the quality and 15 credibility of the testimony." Sunstar, Inc. v. Alberto-Culver Co., No. 01 C 0736, 2004 WL 1899927, 16 at *25 (N.D. Ill. Aug. 23, 2004). Any purported probative value is diminished by the redundant 17 testimony proffered by CVS's experts, as numerous courts have found in excluding cumulative expert 18 testimony. See Tran v. Toyota Motor Corp., 420 F.3d 1310, 1315 (11th Cir. 2005) (affirming district 19 court's exclusion of cumulative expert testimony at trial, where excluded expert relied on same 20 evidence that testifying expert did, would have testified on same issues, had similar qualifications, and 21 would not have added different information); United States v. Frazier, 387 F.3d 1244, 1263 (11th Cir. 22 2004) ("Exclusion under Rule 403 is appropriate ... if the expert testimony is cumulative or needlessly 23 time consuming") (citations omitted); First Nat'l Bank of Louisville v. Lustig, 96 F.3d 1554, 1574-75 24 (5th Cir. 1996) (district court did not abuse discretion in excluding as cumulative expert's testimony 25 that would have covered the same ground as that of testifying witness); In re Air Crash Disaster, 86 26 F.3d 498, 527 (6th Cir. 1996) ("[A] court is free to exclude any expert testimony, including the 27 testimony of an announced expert, if the testimony is cumulative or redundant[;] nothing 'suggests 28 PLAINTIFFS' MOTIONS IN LIMINE CASE NO. 4:15-CV-03504-YGR-JSC 19 4 1 that [the expert] would have added to these interpretations a new angle or argument, as opposed to the 2 refrain 'me too.'") (emphasis omitted). 3 Because these three CVS experts offer cumulative testimony, Plaintiffs respectfully request 4 that the Court require CVS to select one of these witnesses and preclude the other two from testifying 5 at trial. 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PLAINTIFFS' MOTIONS IN LIMINE CASE NO. 4:15-CV-03504-YGR-JSC 20 4 V. MOTION IN LIMINE NO. 5: REFERENCES TO PLAINTIFFS' CASE AS 1 "LAWYER-DRIVEN", REFERENCES TO CIRCUMSTANCES UNDER WHICH 2 PLAINTIFFS HIRED THEIR LAWYERS, AND REFERENCES TO CLASS COUNSEL'S ATTORNEYS' FEES 3 A. References to Litigation as "Lawyer-Driven" 4 Pursuant to FRE 401, 402 and 403, the Court should exclude argument and evidence 5 suggesting that this case is "lawyer driven." Allegations that a lawsuit is lawyer-driven are irrelevant 6 to any issue in the case. See e.g., Hart v. RCI Hospitality Holdings, Inc., 90 F. Supp. 3d 250, 271-73 7 (S.D.N.Y. 2015) (finding it "remarkabl[e]" that defendants would even oppose a motion in limine "to 8 preclude evidence and arguments as to. . . lawyer-driven lawsuits" because "th[at] subject[] [is] 9 categorically irrelevant and ha[s] no place in this lawsuit"). 10 That rule makes sense, because a plaintiff prevails on a claim if that plaintiff proves each 11 element of her claim, nothing more. Unless the defendant asserts certain equitable defenses, 12 legitimately questions the plaintiff's adequacy as a class representative or accuses the plaintiff of bad 13 faith, see Samsung Electronics Co., v. NVIDIA Corp., No. 3:14-CV-757, 2016 WL 754547, at *2 (E.D. 14 Va. Feb. 24, 2016)––none of which CVS has done here––class counsel's role is irrelevant because it 15 has nothing to do with whether the plaintiff has proven each element of her claim. See, e.g., Hart, 90 16 F. Supp. 3d at 273 (so concluding as to "the business model, role, or ethics of class-action counsel"). 17 The same applies here. This lawsuit raises only the question whether CVS violated the 18 consumer protection laws of six states by failing to report its HSP prices as its usual and customary 19 price. See Dkt. No. 101 (Pls.' Third Am. Compl.). Any suggestion that this case is "lawyer driven" 20 does not make it more or less likely that CVS's conduct did, in fact, violate those laws. Therefore, 21 CVS should be precluded from arguing or adducing evidence suggesting this case is "lawyer driven." 22 See Bowe v. Pub. Storage, No. 14-cv-21559, 2015 WL 10857339, at *5 (S.D. Fla. June 2, 2015). 23 B. References to Circumstances of Plaintiffs' Hiring of Their Lawyers 24 Similarly, under FRE 401, 402, and 403, the Court should exclude any reference to how, when, 25 or under what circumstances, the parties selected or hired their attorneys, or to any referral 26 arrangements or other counsel the parties may have retained or consulted beyond their current counsel. 27 28 PLAINTIFFS' MOTIONS IN LIMINE CASE NO. 4:15-CV-03504-YGR-JSC 21 4 1 The circumstances under which and the reasons why any client seeks legal representation are not 2 relevant to any issue to be decided by the jury in any case. CVS should be precluded under FRE 401, 3 402 and 403 from commenting on these matters. See In re DePuy Orthopedics, Inc. Pinnacle Hip 4 Implant Prods. Liab. Litig., MDL 3:11-MD-2244-K, 2017 WL 9807464, at *3 (N.D. Tex. Sept. 19, 5 2017) (granting similar motion in limine); In re: Tylenol (Acetaminophen) Mktg., Sales Practices & 6 Prods. Liab. Litig., MDL No. 2436, 2016 WL 3125428, at *5-6, *17 (E.D. Pa. June 3, 2016) (granting 7 similar motions in limine because such "evidence is irrelevant to the issues of this case and would be 8 unduly prejudicial"); In re Yasmin & Yaz (Drospirenone) Mktg., Sales Practices & PMF Prods. Liab. 9 Litig., 3:09-CV-10012-DRH, 2011 WL 6740391, at *16 (S.D. Ill. Dec. 22, 2011) (granting motion in 10 limine to exclude "[a]ny comment, evidence, testimony, or inference about how, when, or under what 11 circumstances Plaintiff chose or employed any of her attorneys"). 12 C. References to Class Counsel's Fees 13 Finally, any evidence of or reference to the parties' attorneys' fee arrangements, or how 14 litigation expenses are paid or the amount of those expenses, in connection with this or any similar 15 litigation is not relevant to any issue to be decided in this case. CVS's sole purpose in trying to elicit 16 such information would be to potentially prejudice the jury. Such evidence should be excluded under 17 Rules 401, 402 and 403. See In re Welding Fume Prods. Liab. Litig., 1:03-CV-17000, 2010 WL 18 7699456, at *78 (N.D. Ohio June 4, 2010) (granting plaintiff's motion to exclude references that 19 impugn the motives of counsel or denigrate the basis for fees, including "any observation that 20 plaintiffs' counsel get paid on a contingent basis"); DePuy, 2017 WL 9807464, at *3 (granting similar 21 motion in limine); Yasmin, 2011 WL 6740391, at *16 (same); Positive Ions, Inc. v. Ion Media 22 Networks, Inc., CV 06-4296 ABC (FFMx), 2007 WL 9701734, at *2 (C.D. Cal. Nov. 7, 2007) 23 (granting plaintiff's motion in limine to exclude all evidence and reference to contingency fee 24 agreements, noting "proof of contingency fee arrangements carries with it too high a risk of unfair 25 prejudice, confusion and the potential to mislead the jury"). 26 27 28 PLAINTIFFS' MOTIONS IN LIMINE CASE NO. 4:15-CV-03504-YGR-JSC 22 4 VI. MOTION IN LIMINE NO. 6: REFERENCES TO POTENTIAL CLASS 1 REPRESENTATIVE INCENTIVE AWARDS 2 Under FRE 401, 402, and 403, the Court should exclude reference by CVS to any potential 3 class representative incentive award that Plaintiffs might receive as a result of, for example, a litigated 4 judgment or settlement. 5 First, the potential for incentive fees is wholly irrelevant to the questions before the jury: 6 whether CVS overcharged consumers. The question of whether to award an incentive fee is a matter 7 solely within the Court's discretion, not the jury's, as it is based on a variety of factors, many of which 8 are distinct from the merits of the underlying litigation. Any potential incentive awards have no bearing 9 on class representatives' adequacy or credibility. The class representatives expended time and 10 resources on this matter and committed to appear at trial years away without any assurances that the 11 Court would compensate them for their efforts—a fact which enhances rather than impugns their 12 credibility. See In re Toys R Us-Del., Inc.- Fair & Accurate Credit Transactions Act (FACTA) Litig., 13 295 F.R.D. 438, 470 (C.D. Cal. 2014) ("Whether to authorize an incentive payment to a class 14 representative is a matter within the court's discretion. The criteria courts consider in determining 15 whether to approve an incentive award include: '1) the risk to the class representative in commencing 16 suit, both financial and otherwise; 2) the notoriety and personal difficulties encountered by the class 17 representative; 3) the amount of time and effort spent by the class representative; 4) the duration of 18 the litigation[;] and[ ] 5) the personal benefit (or lack thereof) enjoyed by the class representative as a 19 result of the litigation.'") (emphasis added) (quoting Van Vranken v. Atl. Richfield Co., 901 F. Supp. 20 294, 299 (N.D. Cal. 1995)); see also Sheppard v. Consol. Edison Co. of N.Y., Inc., No. 94-cv-0403, 21 2002 WL 2003206, at *6 (E.D.N.Y. Aug. 1, 2002) (citing Roberts v. Texaco, Inc., 979 F. Supp. 185, 22 200 (S.D.N.Y. 1997)). 23 Second, even if the potential for incentive awards had any minimal relevance (which it does 24 not), that minimal probative value is greatly outweighed by the threat of undue prejudice to Plaintiffs. 25 Allowing CVS to refer to or argue about the possibility that class representatives will recover an 26 incentive award would be unduly prejudicial and may cause the jury to lower an award based on the 27 mere possibility and/or speculation that Plaintiffs might recover an incentive fee in the future. 28 PLAINTIFFS' MOTIONS IN LIMINE CASE NO. 4:15-CV-03504-YGR-JSC 23 4 1 Incentive awards to class representatives are meant to compensate them for their willingness to come 2 forward and allege individual and class claims, the personal and professional risk they incurred, and 3 the additional effort expended by the representative for the benefit of the lawsuit and the class as a 4 whole. 5 For these reasons, the Court should exclude any reference by CVS to the potential class 6 representative incentive awards that Plaintiffs might receive in the future. 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PLAINTIFFS' MOTIONS IN LIMINE CASE NO. 4:15-CV-03504-YGR-JSC 24 4 VII. MOTION IN LIMINE NO. 7: PRECLUDE ARGUMENT THAT THE AMOUNT OF 1 INDIVIDUAL OVERCHARGES WEIGHS AGAINST FINDING OF LIABILITY 2 Pursuant to FRE 401, 402 and 403, the Court should preclude CVS from claiming, suggesting, 3 or implying that the modest size of individual Plaintiffs' and class members' injuries or damages 4 makes their claims inconsequential, thus weighing against a finding of liability against CVS, or against 5 awarding any damages at all. 6 This lawsuit raises the question whether CVS violated various state consumer protection laws 7 by misrepresenting and/or concealing the true U&C prices for generic prescription drugs that were 8 included in CVS's HSP program and seeks damages for the harm to Plaintiffs and class members. See 9 Dkt. No. 101 (Pls.' Third Am. Compl.). The magnitude of the individual harm that each class member 10 suffered is not relevant to whether there was harm done to the Plaintiffs and class members and any 11 slight probative value CVS might argue it has is far outweighed by the substantial danger of unfair 12 prejudice, confusing the issues, and misleading the jury. See FRE 401, 402, 403. Indeed, one of the 13 key purposes of the class action mechanism is to provide a remedy for collective litigation where 14 individual "damages … are likely to be too small to justify litigation, but a class action would offer 15 those with small claims the opportunity for meaningful redress." In re Qualcomm Antitrust Litig., 328 16 F.R.D. 280, 317 (N.D. Cal. 2018) (citing In re Static Random Access (SRAM) Antitrust Litig., No. 07- 17 cv-01819-CW, 2008 WL 4447592, at *7 (N.D. Cal. Sept. 29, 2008)). Allowing CVS to argue that the 18 size of the individual damages militates against Plaintiffs and in CVS's favor, either on liability or 19 damages, would frustrate the policies underlying class actions in the first place. 20 21 22 23 24 25 26 27 28 PLAINTIFFS' MOTIONS IN LIMINE CASE NO. 4:15-CV-03504-YGR-JSC 25 4 VIII. MOTION IN LIMINE NO. 8: CVS'S "GOOD" CORPORATE CONDUCT 1 Pursuant to FRE 401, 402 and 403, the Court should preclude any reference to CVS's "good" 2 corporate conduct such as philanthropic work, charitable donations, or other similar conduct unrelated 3 to the pricing practices in this case. Such evidence is irrelevant, unduly prejudicial to Plaintiffs, and 4 inadmissible character evidence. 5 Courts routinely exclude evidence of "good" corporate conduct on these grounds. See, e.g., 6 United States ex rel. Kiro v. Jiaherb, Inc., CV 14-2484-RSWL-PLAX, 2019 WL 2869186, at *4 (C.D. 7 Cal. July 3, 2019) ("Relator's MIL #7 requests that Defendant be precluded from introducing evidence 8 regarding supposed 'good acts,' such as charitable contributions or community service performed by 9 Defendant or its employees. The Court agrees and finds that any such evidence of 'good acts' is 10 irrelevant to the alleged scheme of whether Defendant knowingly submitted false claims to CBP to 11 receive lower duties."); see also Miller ex rel. Miller v. Ford Motor Co., No. 2:01-cv-545-FTM- 12 29DNF, 2004 WL 4054843, at *4 (M.D. Fla. July 22, 2004) ("Ford will not be allowed to introduce 13 evidence of good behavior [to] show it is a 'good' company. Whether Ford is a good or bad company, 14 the only issues in this case are its liability. . . and if liable, the extent of the damages."); In re Tylenol, 15 2016 WL 3125428, at *11 ("[E]vidence that the defendants are 'good companies' would be improper 16 character evidence under Rule 404 … [evidence] the defendants are 'good corporate citizens' by 17 providing scholarships or making charitable contributions – would not be relevant to this case"); In re 18 Testosterone Replacement Therapy Prods. Liab. Litig., No. 14-cv-1748, 2017 WL 2313201, at *9 19 (N.D. Ill. May 29, 2017) ("The Court agrees that the categories of 'good conduct' plaintiffs identity – 20 evidence regarding benefits of other drugs [defendant] produces, donations to charitable organizations, 21 or philanthropic activity – is inadmissible character evidence."); Diczok v. Celebrity Cruises, Inc., No. 22 16-cv-21011, 2017 WL 3206327, at *2 (S.D. Fla. July 26, 2017) (precluding evidence of party's 23 philanthropic efforts as irrelevant); In re Vioxx Prods. Liab. Litig., MDL No. 1657, 2005 WL 3164251, 24 at *1 (E.D. La. Nov. 18, 2005) (granting plaintiffs' motion in limine to exclude any evidence or 25 testimony as to the defendant's good reputation and other good acts pursuant to FRE 401). 26 27 28 PLAINTIFFS' MOTIONS IN LIMINE CASE NO. 4:15-CV-03504-YGR-JSC 26 4 1 Accordingly, this Court should exclude any reference to CVS's "good" corporate conduct such 2 as philanthropic work, charitable donations, or other similar conduct unrelated to the pricing practices 3 in this case. 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PLAINTIFFS' MOTIONS IN LIMINE CASE NO. 4:15-CV-03504-YGR-JSC 27 4 IX. MOTION IN LIMINE NO. 9: EXPERTS NOT TESTIFYING OR OPINIONS NOT 1 PRESENTED 2 The Court should preclude CVS from mentioning, referencing, or referring to experts retained 3 or designated by Plaintiffs but whose testimony—in whole or in part—has been excluded or is 4 otherwise not proffered at trial. 5 The fact that Plaintiffs offered experts other than the experts who will appear at trial is not 6 probative of any issue in the case as it does not make the existence of any fact or consequence to the 7 action more or less probable. FRE 401. Any such argument or suggestion also would be unduly 8 prejudicial and thus should be excluded under FRE 403. CVS may suggest that the jury should draw 9 inferences that previous experts (both excluded and not designated) were unwilling or unable to 10 provide useful opinions in this case, or that Plaintiffs were unable to find an expert in a particular 11 scientific or other discipline that would be willing to testify at trial. But there is no factual basis or 12 foundation for such inferences, and Plaintiffs could not respond to CVS's argument or suggestion 13 without introducing collateral evidence about the case's procedural background, counsel's trial 14 strategy, and so forth, all of which would necessitate a frolic and detour of mini-trials on the subject, 15 distracting and confusing the jury in the process. 16 For these reasons, courts routinely exclude reference to experts' opinions that have been 17 excluded or not presented. Dahlin v. Lyondell Chem. Co., No. 3:14–cv–00085–SMR–HCA, 2016 WL 18 4690390, at *3-4 (S.D. Iowa Mar. 24, 2016) (holding that "evidence of an expert's exclusion or 19 inclusion in a prior case [is] irrelevant and therefore inadmissible.") (emphasis in original); Ecolab 20 USA Inc. v. Diversey, Inc., No. 12–CV–1984 (SRN/FLN), 2015 WL 2353018, at *9 (D. Minn. May 21 15, 2015) ("permitting Plaintiffs to introduce evidence of the [expert's] exclusions would result in a 22 side trial that would case delay and confusion that would outweigh any probative value of the 23 evidence." (citing Estate of Thompson v. Kawasaki Heavy Indus., Ltd., 933 F. Supp. 2d 1111, 1152 24 (N.D. Iowa 2013)) ("allowing such evidence would, inevitably, result in delay, while the parties 25 conduct a 'mini-trail' over the issues on which a party in a previous case sought to qualify [the expert] 26 as an expert, the extent to which he was offered as an expert on the same or different issues in this 27 case and the previous case, any differences in his methodology or reasoning between this case and the 28 PLAINTIFFS' MOTIONS IN LIMINE CASE NO. 4:15-CV-03504-YGR-JSC 28 4 1 previous case, and the precise scope and rationale for the previous court's exclusion.")); Radware, 2 Ltd. v. F5 Networks, Inc., No. 13-cv-02024-RMW, 2016 WL 590121, at *16 (N.D. Cal. Feb. 13, 2016) 3 (excluding evidence of prior Daubert challenges for all expert witnesses). 4 Therefore, the Court should preclude CVS from introducing evidence or argument concerning 5 experts who do not testify, or opinions that are not presented. This limitation will keep out irrelevant 6 evidence and will avoid distracting and confusing the jury with collateral sideshows about the parties' 7 respective expert cases. 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PLAINTIFFS' MOTIONS IN LIMINE CASE NO. 4:15-CV-03504-YGR-JSC 29 4 X. MOTION IN LIMINE NO. 10: REQUIRING THAT ANY DEPOSITION VIDEO 1 TESTIMONY BE BIFURCATED, WITH DIRECT AND CROSS EXAMINATION 2 CLEARLY PRESENTED BY THE PROFFERING PARTY'S ATTORNEY. To the extent the CVS and Plaintiffs wish to present deposition testimony from the same 3 witnesses, Plaintiffs request an order requiring that, other than deposition testimony necessary for 4 completeness, CVS's designations be played in CVS's case-in-chief rather than in Plaintiffs' case-in- 5 chief. 6 This approach more naturally fits the normal flow of a trial by clarifying for the jury which 7 side is proffering evidence (and in what quantities). See, e.g., R. Klonoff & P. Colby, Winning Jury 8 Trials § 1.0(1) (2d ed. 2002) ("There is a cost associated with sponsorship that influences the weight 9 the jury will assign to a given item of evidence"); see also W. LaFave & J. Israel, Crim. Proc. § 1.6, 10 at 23 (1985) (noting that under the adversary system, "[e]ach party is expected to present the facts and 11 interpret the law in the light most favorable to its side, and through a searching counter-argument and 12 cross-examination, to challenge the soundness of presentations made by the other side"). 13 Plaintiffs' proposal will facilitate the orderly presentation of evidence, and will avoid 14 interruption, disjointedness, and confusion. As one court explained, "[t]he potential prejudice 15 defendants face by presenting video clips later in the trial is outweighed by the importance to 16 plaintiff[s] of manageably presenting [their] evidence to the jury." Blue Cross & Blue Shield of N.J., 17 Inc. v. Philip Morris Inc., 199 F.R.D. 487, 491 (E.D.N.Y. 2001). As another court presiding over a 18 complex antitrust trial acknowledged, "the court can, and should, be cognizant of the order of 19 presentation of proof by which the party who bears the burden of persuasion also enjoys the primacy 20 in presenting its evidence." In re Urethane Antitrust Litig., MDL 1616 (D. Kan.), Tr. of Jan. 9, 2013 21 Hr'g at 85:19-22.20 The Urethane court differentiated live witness testimony, where there is an 22 "opportunity of spontaneity," from deposition designations, where "the momentary potential for 23 effective discrediting is not lost in the same way as with a live witness." Id. at 85:22-86:11. The court 24 concluded that aside from "out-of-context snippets that wouldn't make sense if played later on," 25 testimony "which is lengthy and potentially confusing in the context of plaintiffs' presentation" or 26 27 20 A copy of the Urethane transcript is attached as Ex. S to the Levine Decl. 28 PLAINTIFFS' MOTIONS IN LIMINE CASE NO. 4:15-CV-03504-YGR-JSC 30 4 1 beyond the scope of plaintiffs' testimony should be reserved until the defendant's case-in-chief. Id. at 2 85:16-88:14. 3 Plaintiffs' requested approach (and the approach adopted in Blue Cross and Urethane) is 4 consistent with FRE 106, which expresses the "rule of completeness" and allows an adverse party to 5 introduce "any other part" of a published "writing or recorded statement" only if it "in fairness ought 6 to be considered at the same time." FRE 106. Federal Rule of Civil Procedure 32(a)(6) also provides 7 that "an adverse party may require the offeror [of the deposition] to introduce other parts that in 8 fairness should be considered with the part introduced." Fed. R. Civ. P. 32(a)(6). Neither FRE 106 nor 9 FRCP 32 permits a party to introduce all of its designations from a particular witness's deposition just 10 because its opponent offers some designations from that deposition. Each authorizes only the 11 introduction of testimony designated by the opposing side when necessary to "avoid misleading the 12 jury and to explain the portions of the deposition read by Plaintiff." Dean, by Williams v. Watson, No. 13 93 C 1846, 1995 WL 692020, at *10 (N.D. Ill. Nov. 16, 1995); see also Yasmin, 2011 WL 6740391, 14 at *19 (pursuant to Rule 32(a)(6), "only so much counter designation will be read as is necessary to 15 allow for a fair reading of the testimony") (emphasis in original); Farr Man Coffee Inc. v. Chester, 16 No. 88 Civ. 1692 (DNE), 1993 WL 248799, at *19 (S.D.N.Y. June 28, 1993) (the purpose of Rule 17 32(a)(4) [now Rule 32(a)(6)] is to prohibit "the selective use of deposition testimony that might convey 18 a misleading impression"); Blue Cross, 199 F.R.D. at 489 (applying the same reasoning to FRE 106 19 and FRCP 32(a)(4)); Wright & Miller, Fed. Prac. & Proc. Civ. § 2148 (FRE 106 and FRCP 32(a)(6) 20 are intended to prevent "selective use of portions of the deposition testimony out of context or with 21 qualifications of the testimony omitted"). 22 As a general matter, courts are disinclined to allow a party's case to be "unduly interrupted or 23 distracted." Blue Cross, 199 F.R.D. at 490 (citing United States v. Jackson, 180 F.3d 55, 72 (2d Cir. 24 1999)). The "Advisory Committee reaffirmed this principle in considering Rule 611(b) of the Federal 25 Rules of Evidence governing the scope of cross examination," noting that the "practice of limited 26 cross-examination promotes orderly presentation of the case" and that managing cross-examination 27 28 PLAINTIFFS' MOTIONS IN LIMINE CASE NO. 4:15-CV-03504-YGR-JSC 31 4 1 "becomes an aspect of the judge's general control over the mode and order of interrogating witnesses 2 and presenting evidence. . . ." Id. (citing FRE 611 advisory committee notes). 3 A ruling along the lines Plaintiffs request will permit each party to control the presentation of 4 its case as it does in presenting live witness testimony where the opposing party's cross is limited to 5 the scope of the direct examination. This will help ensure the fair and orderly presentation of the 6 evidence and minimize the threat of jury confusion and prejudice to Plaintiffs. 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PLAINTIFFS' MOTIONS IN LIMINE CASE NO. 4:15-CV-03504-YGR-JSC 32 4 1 Dated: May 5, 2020 Respectfully submitted, 2 3 By: /s/ Jonathan K. Levine By: /s/ Robert Gilmore Elizabeth C. Pritzker (Cal. Bar No. 146267) Robert B. Gilmore (admitted pro hac vice) 4 Jonathan K. Levine (Cal. Bar No. 220289) Edward H. Meyers (admitted pro hac vice) Caroline C. Corbitt (Cal. Bar No. 305492) STEIN MITCHELL BEATO & MISSNER LLP 5 PRITZKER LEVINE LLP 6 By: /s/ Bonny Sweeney 7 Bonny E. Sweeney (Cal. Bar No. 176174) Richard Lewis (admitted pro hac vice) 8 Sathya S. Gosselin (Cal. Bar No. 269171) HAUSFELD LLP 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PLAINTIFFS' MOTIONS IN LIMINE CASE NO. 4:15-CV-03504-YGR-JSC 33