EDWARD M. CHEN, District Judge.
Jury selection shall commence on Monday, September 8, 2014, at 8:30 a.m. Trial days normally shall last from 8:30 a.m. to 2:00 p.m. (or slightly longer to finish a witness), with one 15-minute break and one 30-minute lunch break. Parties must arrive by 8:00 a.m. or earlier as needed for any matters to be heard out of the presence of the jury. The jury shall be called at 8:30 a.m. The trial week is Monday through Friday, excluding holidays. Thursdays are dark. Each side will be given 8 hours total to present its case; this includes time taken for opening statements, examination of witnesses (each side's time on direct and its cross-examination) and closing arguments.
A. No later than the end of each trial day, counsel shall inform opposing counsel of which exhibits (including demonstrative evidence), if any, he or she intends to introduce during the next trial day and, if necessary, with respect to which sponsoring witness. If any such exhibits are still objected to, both counsel shall notify the Court after the jury is excused for the day and shall identify the exhibits at issue and the objections. The Court will then schedule a conference that afternoon or the following morning to resolve the dispute.
B. At the end of each trial day, counsel shall also provide opposing counsel with a tentative preview of the exhibits he or she intends to introduce during the trial day after next. Parties are directed to make a good faith effort to ensure such previews are as accurate as possible.
C. With respect to exhibits to be used on the first day of trial, counsel shall inform opposing counsel of which exhibits, if any, he or she intends to introduce by Thursday, September 4, 2014, at 5:00 p.m. If any such exhibits are still objected to, both counsel shall notify the Court by September 5, 2014, at 2:00 p.m., and shall identify the exhibits at issue and the objections. The Court will then address the dispute on the first day of trial, September 8, 2014, before any testimony begins.
D. If a party intends to use a projector or other equipment to show an exhibit (or demonstrative) to the jury, that equipment shall be set up and ready for use by 8:30 a.m. each day. The parties should immediately file with the Court, if necessary, administrative requests to bring projectors and/or other equipment to the courthouse for use at trial.
A. Each party shall be prepared, during its case in chief or any rebuttal, to present its next witness. At any time, if the party whose case is being presented is not prepared to present its next witness, that party shall be deemed to have rested that portion of its case. No further witnesses shall be permitted by the party who has so rested in that portion of the case (e.g., case in chief or rebuttal).
B. Counsel are expected to cooperate with each other in the scheduling and production of witnesses, including informing one another of witness order. At the end of each trial day, Counsel shall give opposing counsel notice of which witnesses will be testifying on the following day. At that time, counsel shall also provide a tentative preview of witnesses who are expected to testify the day after next. Witnesses may be taken out of order if necessary. Every effort shall be made to avoid calling a witness twice (as an adverse witness and later as a party's witness).
C. Only one lawyer for each party may examine any single witness and make objections.
D. If a witness is testifying at the time of a recess or adjournment and has not been excused, the witness shall be seated back on the stand when the Court reconvenes. If a new witness is to be called immediately following recess or adjournment, the witness should be seated in the front row, ready to be sworn in.
E. Counsel shall refrain from eliciting testimony regarding any undisputed facts as set forth in any stipulation filed with the Court. The Court may read to the jury such undisputed facts at appropriate points in the trial.
F. Witnesses shall be excluded from the courtroom until completion of their testimony.
A. To make an objection, counsel shall rise, say "objection," and briefly state the legal ground (e.g., hearsay or irrelevant). There shall be no speaking objections or argument from either counsel unless requested by the Court.
B. Bench conferences, or the equivalent of sidebars, will not be permitted absent truly extenuating circumstances. Disputes regarding exhibits shall be resolved as set forth in Part II, supra. Any other disputes or problems should be addressed either before the trial day commences, at the end of the trial day, or during a recess, if necessary.
During the pre-trial conference, the Court ordered the parties to meet and confer regarding jury instructions to determine whether, in light of the Court's rulings on the various motions in limine (memorialized below), they could reduce or eliminate the remaining disputes regarding the jury instructions in this case. In response, two legal issues were discussed, specifically: (1) Whether Buschman will be able to recover noneconomic damages; and (2) the availability of the mitigation of damages defense.
In the proposed jury instructions that were filed, Buschman proposed an instruction on the concept of non-economic damages — particularly, past mental suffering, loss of enjoyment of life, anxiety, and emotion distress. Docket No. 74, at 55. ABC objects to the inclusion of noneconomic damages in this action for a number of reasons.
Buschman will not be permitted to seek noneconomic damages in this action for the simple reason that his complaint — which frames the scope of this action — does not seek them. A complaint defines, and limits, the scope of an action. See Doelle v. Mountain States Tel. & Tel., 872 F.2d 942 (10th Cir. 1989) ("The plaintiffs original complaint did not seek punitive damages, exemplary damages, or damages for mental distress. Because the plaintiff did not seek such damages in his original complaint, the district court could not award them without permitting the plaintiff to amend."). Under both his negligence and breach of contract causes of action, Buschman alleged: "As a direct, proximate result of Defendant's [negligence/breach of contract], Plaintiff is not receiving benefits under the UNUM GLTDP, and is precluded from receiving those benefits. Plaintiff thus has suffered monetary damage in an amount subject to proof at trial." Compl. ¶¶ 34, 39. Buschman has never sought to amend his complaint to add a request for noneconomic damages. It is too late to reopen discovery.
In addition, even if Buschman had properly sought to assert a claim for noneconomic damages, the Court would have been disinclined to permit the theory to proceed. At the pre-trial conference, Buschman revealed that the basis for his alleged mental distress was, in large part, the litigation tactics and actions by ABC's counsel during this case. Putting aside potential questions of waiver as well as the applicability of California's Anti-SLAPP statute, putting forward evidence of such a theory raises serious Rule 403 concerns and would threaten to derail the litigation, which concerns the termination of Buschman's disability insurance in 2006, not the conduct of this litigation.
Buschman will be limited to the damages asserted in the complaint: the benefits to which he believes he is entitled under the UNUM group disability insurance policy.
In the proposed jury instructions, Buschman included the following statement in his objection to proposed mitigation of damages instructions:
Docket No. 74, at 60-61. At the pre-trial conference, Buschman seemed to retreat from this position and the parties appeared to agree that the relevant question for mitigation of damages is whether Buschman knew of the breach; the parties agreed that the contractual duty to mitigate arises upon actual knowledge of the breach.
So there is no doubt, the Court holds that Buschman had a duty to mitigate upon receiving knowledge of the breach — even if, at the time of the breach, no "damages" had yet been sustained (and thus no cause of action had accrued). California law makes clear that the duty to mitigate damages arises when the plaintiff becomes aware of the breach. See, e.g., Vitagraph, Inc. v. Liberty Theatres Co. of Cal., 197 Cal. 694, 698-99 (1925); see also Foster v. Financial Tech. Inc., 517 F.2d 1068, 1072 (9th Cir. 1975) ("Under the familiar mitigation of damages principle, a party cannot recover that part of his loss caused by his own failure, once he has reason to know of the breach, to take reasonable steps to avoid further harm.").
In its first motion in limine, ABC seeks to prevent Buschman from introducing evidence of any contracts other than a 1995 contract between Northern California Anesthesia Physicians, Inc. ("NCAP") and Anesthesiologists Associated, Inc. ("AAI"). Relatedly, ABC also seeks to prevent Buschman from introducing extrinsic evidence interpreting the terms of the operative contract beyond its plain, unambiguous terms. While these two issues are related, they should have been brought as distinct motions in limine pursuant the Court's Case Management and Pretrial Order. See Docket No. 24, at 6 ("Each motion in limine should address a single topic and contain no more than seven pages of briefing per side."). Given this motion in limine arguably raises two legal issues, the Court will consider Buschman's opposition despite the fact that it exceeds seven pages.
For the following reasons, ABC's first motion in limine will be
To provide the context for this motion in limine, the following is a brief chronological synopsis of the events leading to this lawsuit as well as the contracts and transactions whose relevance to this action are disputed. This account is either taken from the parties' list of stipulated facts contained in the pre-trial conference statement or from the copies of the agreements attached as exhibits to the Declaration of Garth Rosengren.
Dr. Buschman is a founding member and sometime board member of NCAP. Docket No. 67, at 5. NCAP is a group of practicing anesthesiology physicians in the San Francisco Bay Area. Id. As these physicians do not have traditional brick and mortar offices or staffs, NCAP — through its arrangement with AAI and later ABC — provided day-to-day administrative "office" management for its member physicians. Id.
In 1995, NCAP and AAI entered into a "Billing and Related Services Agreement" ("1995 Agreement"). Id. Under this agreement, AAI agreed to provide "Practice Management Services" to NCAP which included, among other things, payroll administration related to employee benefits — including insurance-related benefits. Id. Specifically, the relevant portion of the 1995 Agreement provided:
1995 Agreement, art. 1, § 1.04 (Docket No. 49-1). The 1995 agreement contains a termination clause. Id. art. 8, § 8.02.
In December 1996, AAI entered into a "Billing and Related Services Agreement" with Buschman directly ("1996 Buschman Agreement"). Docket No. 49-2. Under this agreement, AAI again agreed to provide various administrative tasks for Buschman. The services AAI agreed to perform under this agreement revolved around "routine billing and collection services" including "billings to patients and third party payors, managing [Buschman's] accounts receivable and making weekly deposits to [Buschman's] bank account of payments received by AAI on behalf of [Buschman]." Id. art. 1, § 1.01. As with the 1995 Agreement, the 1996 Buschman Agreement contained an integration clause stating it constituted the "entire final Agreement between parties." Id. art. 11, § 11.01.
In 2003, NCAP began offering its employees — including Buschman — enrollment in a long term group disability insurance plan, number 581086 0011, provided by Unum Life Insurance Company of America. Docket No. 67, at 6. The parties agree that the "Practice Management Services" AAI was obligated to provide NCAP under the 1995 Agreement included the "administering of, handling, and payment of insurance and disability insurance premiums, including group long-term disability policy, number 581086 0011." Id. AAI would pay the monthly insurance premiums to UNUM on behalf of NCAP, with the premium set based on the number of physicians enrolled in the long term disability policy. Id. AAI would receive the UNUM statement and would directly issue a check to UNUM. Id. AAI would then "deduct the amount of each participating physician's share of the premium for the group long-term disability policy from that physician's payroll check." Id. AAI would provide each NCAP physician with monthly and annual statements and payroll stubs which would reflect, among other things, the amounts that were deducted to pay that physician's share of the long-term group disability premium. Id.
Buschman enrolled in the group long-term disability policy in 2003. Id. His share of the monthly premium was $390.01 which was deducted monthly from his income as an NCAP employee until January 2006. Id. at 7 In 2006, for reasons that are disputed, Buschman's participation in the group long-term disability policy was cancelled by AAI effective February 1, 2006. Id.
On November 1, 2006 (ten months after Buschman's group-insurance coverage had been cancelled), AAI and NCAP entered into a new a "Services Agreement" ("2006 Agreement"). Docket No. 49-4. The 2006 Agreement provided that AAI agreed to provide the services described in an attachment (Exhibit A) to that Agreement. Id. art. 1, § 1.1. Among the services listed were "Financial Services" which, among other things, included (1) "[p]rocessing and payment of Client expenses including insurance premiums, employee benefits and general business expenses"; (2) "[p]reparation of monthly financial statements for Client and for the individual physician members of Client"; and "[a]ssistance to Client's insurance broker in selection and administration of group insurance options." Id. Ex. A, § A-1.4. As with the 1995 Agreement and 1996 Buschman Agreement, the 2006 Agreement included an integration clause. Id. art. 13, § 13.1. The 2006 Agreement was subsequently amended to extend the term of the agreement and, eventually, to replace all references to AAI to read ABC.
In 2008, as described by ABC in its motion in limine, ABC took over "providing services for NCAP . . . after AAI was acquired by ABC's parent company Miramed." Docket No. 53, at 5.
ABC's first motion in limine essentially attacks one of the two breach of contract theories Buschman has alleged in his complaint. His breach of contract action alleges that ABC breached both the 1995 Agreement and 2006 Agreement by (1) "incorrectly reporting to UNUM that Plaintiff had been `terminated' from NCAP, thus causing UNUM to cancel" the group disability policy, and (2) "failing to inform Plaintiff that his coverage" had been cancelled. Compl. ¶ 33. ABC first contends that the 1995 Agreement is the only legally cognizable agreement for Buschman's breach of contract cause of action. Second, it argues that Plaintiff may not rely on extrinsic evidence to import an additional "duty to notify" that does not appear on allegedly clear and unambiguous terms of the 1995 Agreement.
ABC contends that the duties assumed by AAI in the 1995 Agreement are clearly delineated and do not include any requirement that AAI notify any NCAP physician regarding the state of his group disability policy coverage. Docket No. 53, at 7. Accordingly, ABC argues that the 1995 Agreement is unambiguous insofar as it is not "reasonably susceptible" to Buschman's interpretation and, therefore, extrinsic evidence may not be used to alter its terms. ABC thus argues that Buschman should be precluded from introducing extrinsic evidence to establish or interpret the meaning of that agreement.
Under the traditional contract principles, "extrinsic evidence is inadmissible to interpret, vary or add terms of an unambiguous integrated written instrument." Trident Center v. Connecticut General Life Ins. Co., 847 F.2d 564, 568 (9th Cir. 1988). By contrast, while extrinsic evidence may never "be relied upon to alter or add to the terms of the writing," it is nonetheless admissible to "explain or interpret ambiguous language." See Rosenfeld v. Abraham Joshua Heschel Day School, Inc., 226 Cal.App.4th 886, 897-98 (2014). A contractual provision is ambiguous only if it is reasonably susceptible of two or more interpretations." In re Tobacco Cases I, 186 Cal.App.4th 42, 48 (2010).
California, however, has deviated from traditional parol evidence principles by permitting extrinsic evidence to be used to establish ambiguity in an otherwise facially unambiguous provision. In Pacific Gas & Electric Company v. G.W. Thomas Drayage & Rigging Co., 69 Cal.2d 33 (1968), the California Supreme Court rejected the argument that a trial court could reject extrinsic evidence solely on the basis that it appeared to contradict an otherwise unambiguous term. It stated:
Id. at 37. The Court noted that a rule which would "limit the determination of the meaning of a written instrument to its four-corners merely because it seems to the court to be clear and unambiguous, would either deny the relevance of the intention of the parties or presuppose a degree of verbal precision and stability our language has not attained." Id. The Court justified this approach by recognizing that words "do not have absolute and constant referents" but rather must be interpreted "in light of all the circumstances that reveal the sense in which the writer used the words." Id. at 38. Thus:
Id. at 39. In Trident Center v. Connecticut General Life Ins. Co., 847 F.2d 564 (9th Cir. 1988), the Ninth Circuit found that Pacific Gas had a substantial impact on California contract law:
Id. at 568. Accordingly, California's parol evidence rule requires a two-step inquiry. First, the court must provisionally receive (without admitting) "all credible evidence concerning the parties' intentions to determine `ambiguity.'" Wolf v. Superior Court, 114 Cal.App.4th 1343, 1351 (2004). Second, if, in light of this extrinsic evidence, the court finds the language is "reasonably susceptible" to the interpretation advanced, the extrinsic evidence is then admitted to aid in the interpretation of the contract. Id.
Ultimately, because the Court concludes that the 1995 Agreement is simply ambiguous on its face, it need not address whether, under Pacific Gas, extrinsic evidence renders it ambiguous. See Universal Green Solutions, LLC v. VII Pac Shores Investors, LLC, No. C-12-5613-RMW, 2014 WL 1994880, at *2 (N.D. Cal. May 15, 2014) ("[T]he court can determine whether the contract is ambiguous on its face or by using extrinsic evidence of the parties' intent."). The 1995 Agreement is vague as to the precise nature of the services AAI would provide NCAP and its physicians. As the language quoted above indicates, the agreement called for AAI to provide "practice management services." Rather than precisely define these services, the 1995 Agreement states that they "shall include" such things as (1) "[m]anagement assistance and related services" to the physicians and (2) "[t]ransmission of payroll and pension contributions." 1995 Agreement, art. 1, § 1.04 (emphases added). The "practice management services" term, as discussed in the 1995 Agreement, is ambiguous. First, the introductory phrase "shall include" suggests the listed services are merely illustrative. Cf. Project Vote/Voting for America, Inc. v. Long, 682 F.3d 331, 338 (4th Cir. 2012) ("Courts have repeatedly indicated that `shall include' is not equivalent to `limited to.'"). Second, the specific enumerated "practice management services" such as "management assistance" (particularly when coupled with the even more amorphous "related services") and "transmission of payroll and pension contribution" do not provide a clear, plain meaning. Cf. In re Western Asbestos Co., 416 B.R. 670, 695 (N.D. Cal. 2009) (finding agreement ambiguous because there was "no plain meaning contained within the agreement itself regarding the purpose for and limitations on Hartford's audit/review rights, and also regarding Hartord's `copying' rights"); Stonebrae, LP v. Toll Bros., Inc., No. C08-0221 EMC, 2009 WL 1082067 (N.D. Cal. Apr. 22, 2009) (finding term "Default Notice" to be ambiguous because the agreement merely stated the notice must be written — "[n]owhere does the Agreement specify what the contents of a Default Notice must be"); Lebas Fashion Imports of USA, Inc. v. ITT Hartford Ins. Group, 50 Cal.App.4th 548, 560 (1996) (finding terms "misappropriation," "advertising idea," and "style of doing business" in an insurance policy to be ambiguous as these terms did not have "a single, plain and clear meaning").
The facial ambiguity is perhaps most clearly demonstrated by the parties' stipulation of facts. ABC has conceded by stipulation that under the 1995 Agreement, AAI agreed to take on the "administering of, handling, and payment of insurance and disability insurance premiums." Docket No. 67, at 6. It is not evident, however, from what provision in the 1995 Agreement this obligation arose as the Agreement does not expressly speak of insurance premiums. For example, while handling and payment of the insurance proceeds may be construed as fitting within the "transmission of payroll and pension contribution" (if it is accepted that insurance premiums constitute "payroll" contributions), the parties' stipulation speaks more broadly of "administering" the insurance premiums — a term that suggests more than serving as a mere conduit for payment.
In light of the above, the Court is unable to determine whether the parties to the 1995 Agreement intended that "practice management services" include the obligation that AAI notify NCAP physicians when, and if, their coverage was terminated without recourse to extrinsic evidence. Accordingly, the broad, somewhat amorphous, language of the 1995 Agreement is "reasonably susceptible" to Buschman's interpretation, permitting the use of extrinsic evidence to aid in the interpretation of the provision. The Court further notes that use of extrinsic evidence to support this interpretation does not impermissibly vary, add to, or contradict the express terms of the 1995 Agreement. Rather, it provides an interpretation of the ambiguous terms discussed above — "management assistance service," "related service," etc. See, e.g., In re Western Asbestos Co., 416 B.R. at 699-700 (using extrinsic evidence to interpret ambiguous "audit right" provision in settlement agreement and imposing limitation that information obtained under the audits could only be used in limited circumstances). Accordingly, Buschman will be able to submit extrinsic evidence in support of his interpretation, and ABC will likewise be permitted to rebut this evidence and assert that the 1995 Agreement does not contain the asserted "notification" obligation. Ultimately, the resolution of any disputed extrinsic evidence and the contract's meaning in these circumstances will be a question for the jury. See, e.g., Nat'l Union Fire Ins. Co. of Pittsburgh v. Argonaut Ins. Co., 701 F.2d 95 (9th Cir. 1983 ("[A]mbiguity in a contract raises a question of intent, which is a question of fact . . . ."); Cotran v. Rollins Hudig Hall Int'l, Inc., 17 Cal.4th 93 (1998) ("If the terms of the contract are ambiguous or uncertain . . . determining the contract's term is a question of fact for the trier of fact (here the jury), based on `all credible evidence concerning the parties' intention . . . .'").
Accordingly, to the extent ABC seeks to preclude introduction of extrinsic evidence to interpret the 1995 Agreement, its first motion in limine is
In addition to arguing that the 1995 Agreement is unambiguous and therefore immune from extrinsic evidence, ABC also contends that Buschman should be precluded from introducing evidence relating to the post-1995 Agreements on the ground they are irrelevant. The Court first addresses the admissibility of evidence relating to the 1996 Buschman Agreement before turning to the 2006 Agreement.
Buschman argues that the agreement is relevant to (1) show his "overall reliance on AAI/ABC to serve as the administrative office NCAP lacked" and (2) "shows, consistent with AAI's duties under the 1995 Agreement and the testimony of its CEO that AAI acted as Dr. Buschman's `office' and administrative staff, handling billing and collections and other services." The Court concludes evidence relating to the 1996 Buschman Agreement
As to the 2006 Agreement, ABC argues that the agreement is irrelevant because it was entered into after the alleged breach — the January 2006 cancellation and failure to notify Buschman of the cancellation. Buschman contends, pointing to deposition testimony of two former NCAP officers, that the "2006 Agreement was a more explicit memorialization of the duties AAI had assumed under the 1995 Agreement and had performed for NCAP and Dr. Buschman for over a decade." He further contends that the 2006 Agreement was itself breached by "AAI's and ABC's continued failure to notify Dr. Buschman of AAI's cancellation of his group disability policy from late 2006 until early 2012." Buschman has alleged in his complaint that the cancellation of the group-disability policy and failure to notify him of that cancellation breached both the 1995 Agreement and 2006 Agreement.
As to the cancellation of the group-disability policy itself, Buschman may not base his breach of contract action on the 2006 Agreement. Under California law, as in all states, a breach of contract action requires that there be a contract in place that was allegedly breached by the defendant's actions. See CFF Firefighters v. Maldonado, 158 Cal.App.4th 1226, 1239 (2008). Here, the cancellation occurred 9 months before the 2006 Agreement was signed. Accordingly, the cancellation could not have breached any duty imposed by the 2006 Agreement as it did not even exist at the time.
Buschman's argument that ABC breached the 2006 Agreement by continually failing to notify him of the cancellation is more complicated. First, Buschman has offered deposition testimony of NCAP officers that suggests the 2006 Agreement was not a completely "new" but rather a "more explicit memorialization of all the duties AAI had assumed under the 1995 Agreement and had performed for over a decade." See Deposition of Gershon Levinson ("Levinson Dep.") at 48 (Docket No. 29-1); Deposition of Craig Van Valkenburg ("Valkenburg Dep.") at 57 (witness stating that, with one exception, the 2006 Agreement provided for the same "financial services" as the 1995 Agreement). Second, as with the 1995 Agreement, the 2006 Agreement is not only facially ambiguous as to whether AAI was required to provide notification to Buschman of the cancellation of his policy, but also whether this was a continuing obligation. For example, the 2006 Agreement generally provides that AAI would provide, among other things:
2006 Agreement, Ex. A, § A-1.4. It is not clear on the face of the agreement that "administration of group insurance options" or "preparation of monthly financial statements" did not impose an obligation on ABC to notify the participating physicians of the nature and status of their group insurance coverage.
In light of the above, the Court cannot conclude on this record that Buschman cannot state a claim for breach of the 2006 Agreement based on AAI/ABC's failure to continuing notice of its cancellation of his group insurance policy. Buschman is advised, however, of the burden of production he will need to satisfy to even potentially prevail on this claim. It is not sufficient that he show the 2006 Agreement imposed a duty on AAI to notify participating physicians when their coverage was cancelled. This duty, if it existed at all, was breached in January 2006 and constituted a breach of the 1995 Agreement as the 2006 Agreement did not exist. Rather, Buschman must present sufficient evidence at trial from which the jury (or, if the evidence on this point is not disputed, the Court) could not only conclude that the 2006 Agreement imposed a duty on AAI to notify him of the cancellation of his group disability insurance, but also that this duty was of a continuing nature such that AAI had a contractual duty to notify him of a cancellation that had occurred nine months previously. At the pre-trial conference the Court expressed skepticism as to whether Buschman will be able to make this showing. Buschman is forewarned that at the close of Buschman's case, if insufficient evidence has been presented on this point, the Court will, on motion or sua sponte, grant ABC judgment as a matter of law as to this theory. See Ervco, Inc. v. Texaco Refining and Marketing, Inc., 428 F. App'x 725 (9th Cir. 2011) (recognizing the power of a court to sua sponte grant a Rule 50 JMOL after the jury has heard the relevant evidence on the issue).
Finally, the Court notes that evidence relating to the 2006 Agreement may be used to aid in the interpretation of the 1995 Agreement. As the 1995 Agreement is ambiguous for the reasons discussed above, extrinsic evidence may be used to interpret and give meaning to its ambiguous terms. This extrinsic evidence may take the form of evidence regarding the parties' actions subsequent to the agreement. See Barham v. Barham, 33 Cal.2d 416, 423 (1949) ("Where any doubt exists as to the purport of the parties' dealings as expressed in the wording of their contract, the court may look to the circumstances surrounding its execution including the object, nature and subject matter of the agreement, as well as to subsequent acts . . . of the parties shedding light upon the question of their mutual intention at the time of contracting."); see also Hartnell Comm. College Dist. v. Superior Court, 124 Cal.App.4th 1443 (2004) ("`[E]xtrinsic evidence is inadmissible to contradict a clear contract term, but if a term is ambiguous, its interpretation depends on the parties' intent . . . in light of earlier negotiations, later conduct, related agreements, and industry-wide custom.'" (quoting Pace v. Honolulu Disposal Serv., Inc., 227 F.3d 1150, 1158 (9th Cir. 2000).
Testimony that the 2006 Agreement provided for the same services that AAI had provided under the 1995 Agreement (but provided a more explicit memorialization of those services) is relevant evidence of the course of dealing between AAI and NCAP and can therefore be used to interpret the 1995 Agreement. See Morey v. Vannucci, 64 Cal.App.4th 904, 912 (1998) ("The mutual intention as to which the courts give effect is determined by objective manifestations of the parties' intent, including the words used in the agreement, as well as extrinsic evidence of such objective matters as the surrounding circumstances under which the parties negotiated or entered into the contract; the object, nature and subject matter of the contract; and the subsequent conduct of the parties."); Cf. Heston v. Farmers Ins. Group, 160 Cal.App.3d 402 (1984) ("[E]vidence of the actions of the parties subsequent to an inquiry because of an ambiguous contract may be considered in interpreting an agreement . . . .").
For the foregoing reasons, ABC's first motion in limine is
In its second motion in limine, ABC seeks to preclude Buschman from introducing evidence of alleged "other acts" by ABC or AAI under Federal Rule of Evidence 403 or 404(b). ABC argues that Buschman seeks to introduce a number of exhibits that serve "no other purpose than to create the impression that AAI and ABC were negligent as a matter of course, and to thereby cause the jury to believe that AAI and ABC acted in conformity with its other `negligent' acts with respect to Plaintiff." Docket No. 54. ABC seeks to exclude seven exhibits propounded by Buschman on this ground.
Federal Rule of Evidence 404(b) generally provides that "[e]vidence of a crime, wrong, or other act is not admissible to prove a person's character in order to show that on a particular occasion the person acted in accordance with the character." Fed. R. Evid. 404(b)(1). Other act evidence, however, may be admissible — subject to Rule 403 — for "another purpose," including "proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident." Fed. R. Evid. 404(b)(2). Applying this rule, courts have excluded evidence that a defendant had acted negligently on a prior occasion when used to establish that the defendant was negligent in any particular instance. See Sparks v. Gilley Trucking Co., Inc., 992 F.3d 50, 53 (4th Cir. 1993) (finding evidence of defendant's prior speeding tickets because they "tended to show at most a trait about Sparks, that he tended to speed, and to suggest that because he speeded on prior occasions, he was speeding at the time of the accident"); Jones v. So. Pac. R.R., 962 F.2d 447, 449 (5th Cir. 1992) ("Haley's prior safety infractions had little to do with what actually happened on the day of the wreck. Such evidence was not admissible to show that Haley was negligent in conducting the train.").
Federal Rule of Evidence 406, however, is a general exception to Rule 404(b)'s bar on the use of evidence of prior actions to prove subsequent conduct in conformity therewith. This rule provides, in relevant part: "Evidence of a person's habit or an organization's routine practice may be admitted to prove that on a particular occasion the person or organization acted in accordance with the habit or routine practice." Fed. R. Evid. 406. The advisory committee notes, relying on McCormick's evidence treatise, distinguishes "habit" from "character" by stating that while character is a "generalized description of one's disposition, or of one's disposition in respect to a general trait," habit is the "person's regular practice of meeting a particular kind of situation with a specific type of conduct . . . . The doing of the habitual acts may become semi-automatic." Fed. R. Evid. 406 committee note.
Courts have noted the difficulty in distinguishing between admissible evidence of habit and inadmissible evidence of character. See Zubulake v. UBS Warburg LLC, 382 F.Supp.2d 536, 542 (S.D.N.Y. 2005). Accordingly, in Simplex, Inc. v. Diversified Energey Systems, Inc., 847 F.2d 1290 (7th Cir. 1988), the Seventh Circuit noted that it is "cautious in permitting the admission of habit or pattern-of-conduct evidence . . . because it necessarily engenders the very real possibility that such evidence will be used to establish a party's propensity to act in conformity with its general character." Id. at 1293. It then held that "before a court may admit evidence of habit, the offering party must establish the degree of specificity and frequency of uniform response that ensures more than a mere `tendency' to act in a given manner, but rather, conduct that is `semi-automatic' in nature." Id. Finally, at least one district court has found that a where a party has introduced evidence of its routine business practices, the opposing party is "entitled to present evidence of instances" in which the party utilizing routine-practice evidence failed to follow its routine business practices." Rowley v. American Airlines, 885 F.Supp. 1406, 1413 (D. Or. 1995). With these principles in mind, the Court examines each proffered exhibit ABC has challenged in its second motion in limine.
Buschman's Exhibit 6 is a spreadsheet entitled "Northern California Anesthesia Physicians 2007 Long Term Disability" and establishes that it is in reference to "Policy No. 58106-001." Docket No. 49-7. This spreadsheet, despite being made in 2007 — approximately one year after AAI had terminated his coverage under Policy No. 58106-001 — lists "Buschman, Alan" as being a participant. Id. at 2. None of ABC's arguments as to why this document should be excluded implicate Rule 404(b). Rather, ABC argues that (1) the document is "inaccurate" since it is "undisputed that Plaintiff was not a participant as of this date" and (2) it is unknown when, how, or for what purpose this spreadsheet was prepared." Docket No. 54. These are not Rule 404(b) arguments, and ABC's conclusory statement that it is being used for "no other purpose for introducing this document other than as propensity evidence" does not make it so.
The relevance of this document is clear — if a document was created in 2007 reflecting the author's (presumably an individual from AAI as it was produced from AAI's files) belief that Buschman was a participant in the group-disability insurance policy, it makes it more likely that Buschman was supposed to have been a participant in the policy, and, therefore, that the prior cancellation of coverage was erroneous. Also, if AAI had documents in its possession post-cancellation suggesting that Buschman was, in fact, participating in the policy, it would support a finding that AAI/ABC did not send Buschman notification that his cancellation was terminated. Stated another way, Defendant's argument that this document should be inadmissible as it is "inaccurate" misses the point — the document has relevance precisely because it is inaccurate. This is not a "propensity" argument — rather it is evidence tending to show that AAI made an error in cancelling Buschman's coverage — the precise question involved in this action. Defendant's arguments that it is unclear who made the document, when, or for what purpose go to the weight of the evidence not its admissibility. Further, the Court notes that ABC, as the successor entity to AAI, is in the best position to answer these questions.
Buschman's Exhibits 17 and 18 consist of an e-mail exchange between Dr. Gershon Levinson — an NCAP physician — and AAI personnel relating to Dr. Levinson's personal disability insurance policy. Docket No. 49-8. While not entirely clear, it appears that Dr. Levinson had not received a letter that UNUM had sent to him (via AAI) regarding the effect of his 65th birthday on his personal disability insurance coverage. In April 2008, AAI informed Dr. Levinson that a letter had been "sent to your attention (at our old address) in December [2007]. We are contacting carrier to make sure they update addresses in all files and not just the billing address." Docket No. 49-8, at 3.
Buschman argues that these exhibits are not "character" or "propensity" evidence but rather relevant evidence to "rebut Defendant's claim that AAI and ABC complied with its own routine procedures at all times." Docket No. 54, at 15. He further argues that the e-mail communication "shows that AAI understood it had a duty to pass on material communications from UNUM to NCAP's physicians, and that AAI acted as the communications conduit between UNUM and NCAP's physicians." Id.
The Court concludes that this evidence is not barred by Rule 404(b). According to the parties' pre-trial conference statement, there are a number of disputed legal and factual issues, which include: (1) "[w]hether all communications from UNUM concerning the group long-term disbaility policy . . . were addressed to AAI personnel at AAI's or Defendant's business office, not to NCAP or any individual NCAP physician"; (2) "[w]hether NCAP and its physicians reasonably relied on AAI as the sole means to inform them of any communications from the insurer"; and (3) "[w]hether NCAP paid AAI to inform in writing its physicians of any material communications from the insurer UNUM." Docket No. 67. The exchange with Dr. Levinson supports a finding that AAI did, in fact, operate as a conduit for communications between UNUM and the participating physicians. It further suggests that AAI personnel were aware that they had a duty to pass on comminations from UNUM to the participating physicians. The exchange does this because: (1) the UNUM letter was directed to Dr. Levinson but was sent to AAI's business address; (2) upon locating the letter that had been sent four months earlier, AAI forwarded it to Dr. Levinson and stated that they were ensuring that UNUM updated AAI's address in all of its files — suggesting a recognition that letters regarding the insurance policies and coverage were properly sent to it, not the participating physicians.
For this reason, the Dr. Levinson exchange is relevant — it supports Buschman's argument that AAI/ABC had a duty to send communications relating to his insurance coverage to him, or at least did so as a matter of course such that he could rely on AAI/ABC to do so. Similarly, the exhibits are relevant course of performance evidence which can be used to interpret AAI's duties under the 2006 Agreement and, perhaps, the 1995 Agreement. Cf. Kidder, Peabody & Co., Inc. v. IAG Int'l Acceptance Group, No. 94 CIV. 4725 (CSH), 1999 WL 11553 (S.D.N.Y. Jan. 13, 1999) (overruling Rule 404(b) objection as the documents in question were "at least somewhat probative of the contract's meaning"). These theories of relevance do not involve any improper propensity reasoning. While there is the risk that the jury could use this evidence for that improper purpose (i.e., that it concludes that because AAI had failed to timely send a letter to one doctor on a separate occasion, they must have done so in this case), the Court concludes that probative value of the exchange is not substantially outweighed by this risk. Further, the Court will, should ABC request it at trial, consider providing a limiting instruction to the jury.
For the foregoing reason's ABC's Rule 404(b) objection to Exhibits 17 and 18 are
Buschman's Exhibits 42 and 43 are internal AAI documents apparently created after a periodic review of the NCAP file. Exhibit 42 is entitled "NCAP March Financial Review Notes" from April 2004. Docket No. 49-10. This AAI internal document includes five action items relating to outstanding checks, checks that had not cleared, or actions that needed to be taken with regards to payroll. For example, one entry provides: "Overhead Federal Provision needs to be reclassed to clear out the Federal Income Tax Payable on the balance sheet ($2408). Then you can drop the description on the summary. Sorry, I think I told you to post it to overhead." Docket No. 49-10, at 2. Exhibit 43 is a similar, though undated, document. Docket No. 49-11. This document contains four action items, some of which appear to be corrections for previous incorrect acts. For example, for one doctor, the document states "On-call meals were posted to regular meals and ent. Doesn't change payroll but needs to be reclassed for tracking purposes." Docket No. 49-11, at 2.
ABC contends that the only purpose for which Buschman seeks to use these documents is to "highlight for the jury that AAI has made errors in the past." Docket No. 54, at 6. Buschman, by contrast, that the exhibits are relevant to rebut ABC's defense that it "at all times sent accurate payroll statements to NCAP's physicians which properly detailed the amount of deductions for insurance contributions." Docket No. 54. They further argue that the documents are relevant to show that the "related services" provided by AAI under the 1995 Agreement were broad. Id.
As the Court noted at the pre-trial conference, the Court does not view the admissibility of these documents as a Rule 404(b) question, but rather a question of Rule 403. The Court does not believe prior instances of mistakes in administration of a corporate entities' policies and practices can properly be said to be evidence of that entities' "character." If, however, the incident in question is factually distinct from the circumstances presented in this case (i.e., involves different conduct or different individuals) or lacks a sufficient temporal connection to the events underlying this action, the probative value of that incident decreases, raising potential Rule 403 concerns given its potential prejudice in highlighting unrelated errors. Additionally, the relevance of this evidence depends, to an extent, on the defense put on by ABC.
Turning to Exhibits 42 and 43, to the extent Buschman argues that these exhibits are relevant extrinsic evidence to show the nature of the services AAI provided to NCAP, the Court disagrees. The parties have already stipulated that under the 1995 Agreement, AAI would handle the payment of insurance policies from participating physicians' payroll checks. Docket No. 67, at 6. These two documents do no more than show AAI performed payroll tasks for NACP and thus do not have any independent probative value when compared to the stipulation. Any slight marginal probative value these exhibits have compared to the stipulations is substantially outweighed by the risk of needless cumulative presentation of evidence.
Further, the Court finds that these exhibits' probative value is substantially outweighed by the risk of juror confusion under Rule 403. While Buschman argues that these documents challenge the contention that ABC's payroll statements and financial reports were accurate, the exhibits only speak of internal classifications of certain expenses (none of which involve insurance). One of the documents explicitly says that the change did not affect payroll, but merely needed to be changed for tracking purposes. Finally, the documents discuss small errors in 2004 — almost two years before Buschman's group disability insurance was cancelled. These errors appear to have little in common with the allegedly erroneous termination of Buschman's group disability policy in 2006. In these circumstances, unless Buschman can show a plausible substantial connection with the 2006 termination, the Court finds the probative value of these documents to be very slight and the risk of confusion of issues great, and they will be excluded under Rule 403.
Buschman's Exhibits 57 and 58 are memoranda dated April 19, 2006, and May 17, 2006, respectively. Docket Nos. 56-12; 56-13. They were drafted by Amy Pratt and sent to NCAP and a number of NCAP physicians. Relevant for ABC's motion, these memoranda reveal errors in the medical insurance bills for January, February, and March. The April 19, 2006 memorandum states: "The medical insurance bills for February & March premiums were incorrect. I have determine the amount paid and expended for January premiums was not correct. This correction will be made on the May 15th payroll." Docket No. 56-12, at 2. Similarly, the May 17, 2006 memorandum states: "I have determined the amount paid and expensed for January medical insurance premiums was not correct. This correction will be made on the June 15th payroll." Docket No. 56-13, at 2.
Defendant argues: (1) Buschman seeks to use these documents simply to show that ABC and AAI had a "propensity for making mistakes"; (2) are irrelevant on the question as to whether ABC "acted negligently with respect to Plaintiff's insurance coverage"; (3) and that the errors related to the "amount paid and expensed" for health insurance premiums — a question distinct from removing a participant from the group policy. Accordingly, it contends that given the dissimilarities between these exhibits and the question presented in this case, the jury will likely be confused by the exhibits into concluding that AAI knew it erred in removing Buschman from the group coverage and failed to correct it. Buschman responds that these exhibits are highly relevant as they involve AAI errors relating to the accuracy of its administration of insurance premiums in January 2006 — the same month that his coverage was, allegedly, cancelled in error.
The Court will not exclude these exhibits under Rule 404(b). As discussed above, the admissibility of these documents is more properly reviewed under Rule 403. Applying the Rule 403 standard, the Court finds that Exhibits 57 and 58 raise a close question of admissibility. The incidents referenced in these documents pertain to the same general subject (payment and administration of insurance premiums) and have a temporal connection (January 2006) with the incident that forms the basis of this action. However, there is no foundation laid as of yet showing the connection between these errors and the termination of Buschman's disability insurance (e.g., same AAI employees likely involved, there was an overarching practice that would have resulted in all these errors, etc.).
For the foregoing reasons, ABC's objection to Exhibits 57 and 58 on Rule 404(b) grounds is
ABC seeks to preclude Buschman from referencing the fact that the 2006 payroll file for Buschman cannot be located. It argues that NCAP has not been an ABC client for years and that ABC sent its NCAP related files to NCAP's new practice management company — Abeo. Docket No. 54, at 8.
ABC's Rule 404(b) objection is
However, the Court notes that the 2006 evidence is of reduced relevance given the fact that the payroll records for 2007, 2008, 2010, and 2011 — all years prior to Buschman's disability — will be introduced at trial. Accordingly, even without the 2006 file, both parties are able to argue what the payroll records (and their deductions or lack thereof for insurance policy premiums) show. Given the marginal probative value of the 2006 file in light of this other evidence, the Court will not permit Buschman to engage in any prolonged exposition or argument regarding the absence of this file. Rather, he may elicit on a one time basis testimony from a proper witness that the 2006 file could not be located.
Finally, the parties will meet and confer and arrive at a stipulated limiting instruction that clarifies the purposes for which this evidence may, and may not, be used. The parties shall provide the court with their stipulated limiting instruction no later than 3:00 p.m., Friday, September 5, 2014.
Finally, ABC seeks to exclude testimony or evidence relating to the fact that Dr. Gershon Levinson — at the time the head of NCAP — hired an outside auditor to evaluate AAI's billing and collection work. Docket No. 54, at 8. According to Dr. Levinson's deposition testimony, the auditor came to the conclusion that
Deposition of Gershon Levinson ("Levinson Dep.") at 74-75 (Docket No. 56-14). ABC argues that Buschman seeks to use this evidence to show that ABC or AAI generally kept sloppy records and therefore must have been negligent in its cancelling Buschman's group-coverage. Buschman responds that it is "directly relevant to show the relationship of reliance and course of performance between NCAP, its physicians, and AAI/ABC under the 1995, 1996, and 2006 written service agreements." Docket No. 54.
The Court reserves judgment whether this testimony should be excluded under Rule 403. Evidence that ABC had, in the opinion of an auditor, "very poor" or "very sloppy" procedures in their billing and collections department is of minimal relevance to the issue of this case unless, as discussed above, Buschman can draw a plausible connection to the 2006 policy termination. The Court will exclude this testimony under Rule 403 if no such foundation is laid.
In its final motion in limine, ABC seeks an order excluding any and all lay opinion evidence or testimony regarding the standard of care that applies to ABC's or AAI's conduct. Docket No. 55. ABC contends that because the standard of care to which these entities should be held to as providers of "practice management services" is not within an ordinary person's common knowledge, Buschman should be required to present expert testimony on this ground.
In California, a professional negligence claim "requires testimony of experts as to the standard of care in the relevant community." U.S. Fidelity & Guar. Co. v. Lee Invest. LLC, 641 F.3d 1126, 1138 (9th Cir. 2011) (citation omitted); see also Sanchez v. Brooke, 204 Cal.App.4th 126, 138 (2012) ("Generally, expert testimony is required to establish the standard of care that applies to a professional."). Accordingly, California courts have required expert testimony to establish the duty of care applicable to doctors, attorneys, insurance brokers, contractors, and the like in negligence actions. See, e.g., U.S. Fidelity, 641 F.3d at 1138-39 (insurance brokers); Avivi v. Centro Medico Urgente Med. Ctr., 159 Cal.App.4th 463 (2008) (medical malpractice action); Wilkinson v. Rives, 116 Cal.App.3d 641, 647 (1981) (attorneys); Chaplis v. County of Monterey, 97 Cal.App.3d 249, 264 (1979) (general contractor).
However, even if it is assumed that AAI/ABC are "professionals" or provide "professional services" for purposes of this rule, the expert testimony requirement is not absolute. Rather, while expert testimony is generally required in such cases,
Sanchez, 204 Cal. App. 4th at 138 (quoting Flowers v. Torrance Memorial Hospital Medical Center, 8 Cal.4th 992, 1001 (1994)). Accordingly, the identity of the defendant as a professional is not dispositive — rather the key question is whether evaluation of the defendant's acts or omissions in a given case requires some form of specialized or scientific knowledge that only an expert can provide. See id. (expert testimony not required if a "lay person's common knowledge includes the conduct required by the particular circumstances").
The California Supreme Court case of Miller v. Los Angeles County Flood Control Dist., 8 Cal.3d 689 (1973) provides a useful example of where expert testimony is, and is not, required in a professional negligence action. Miller involved allegations of negligence in the construction of a home, and the California Supreme Court held that, in general, expert testimony was needed to determine whether the builder had complied with the relevant standard of care:
Id. at 702-03. At the same time, the Court noted that certain acts by a contractor would not require expert testimony such as "those failures on the part of the builder which are so obvious, if not bizarre, that they present no problem in the determination of his negligence, as for example the installation of a fireplace without a chimney or of a second floor without any means of access to it." Id. at 702 n.15; see also Aramyan v. United States, CV 08-0360 MMM CWX, 2010 WL 532536, at *22 (C.D. Cal. Feb. 8, 2010) ("[T]he standard of nonmedical, administrative, ministerial, or routine care in a hospital need not be established by expert testimony because the jury is competent from its own experience to determine and apply such a reasonable-care standard." (citation omitted)); Friedman v. Dresel, 139 Cal.App.2d 333, 341 (1956) ("[W]here negligence on the part of a doctor is demonstrated by facts which can be evaluated by resort to common knowledge, expert testimony is not required since scientific enlightenment is not essential for the determination of an obvious fact." (citation omitted)). Accordingly, application of the common knowledge exception turns on whether the alleged failures are sufficiently obvious that they pose "no problem" in determining negligence. Miller, 8 Cal. 3d at 702 n.15.
The Court concludes that the alleged negligent acts involved in this case do not require that Buschman provide expert testimony to establish the standard of care. Here it is alleged that AAI/ABC wrongfully had his group-disability insurance coverage canceled without his consent and then failed to inform him of this cancellation. These allegations, particularly in light of the allegations and evidence that NCAP and its member physicians relied on AAI/ABC to provide administrative tasks and to serve as the conduit for communications with UNUM, are not outside the "common knowledge" of a lay individual. Cf. American Int'l Reocvery v. Allstate Ins. Co., No. 2009-P-0008, 2009 WL 4758823, at *3 (Ohio Ct. App. Dec. 11, 2009) ("It is a matter of common knowledge that when insurance is cancelled, it is critical to timely notify the insured of the effective date of that cancellation, especially if that cancellation occurs immediately. The issues regarding duty of care owed in the instant case are not of a complex nature involving industry standards or policy interpretation."); Schultz v. Bank of Am., N.A., 990 A.2d 1078, 1086-87 (recognizing that expert testimony would not be needed to explain the standard of care in a case where "an attorney fails to inform his client that he has terminated his representation of the client"). Determining whether these acts meet the applicable standard of care does not require an evaluation of the reasoned judgment of a professional the way that, for example, evaluating a doctor's treatment decisions, a home builder's architectural designs, or a book-keeper's choice of accounting methods would. Nor do the alleged acts or omissions by AAI and ABC touch on highly technical or scientific principles that are beyond the common understanding of jurors.
For the foregoing reasons, ABC's third motion in limine is
In his motion in limine, Buschman seeks to preclude ABC from arguing that it is not liable for the acts or omissions of AAI. Docket No. 59. Buschman had proffered the following stipulation, that ABC rejected: "As a the result of a merger of ABC and AAI in 2008, ABC would be responsible for any damages if you find that AAI was negligent or breached its contract with NCAP." Id. at 1. ABC agreed, in part, and offered the following counter-stipulation: "As the result of a merger of ABC and AAI in 2008, ABC would be responsible for any damages if you find that AAI was negligent or breached its contract with NCAP. No claim is made that ABC itself did anything wrong. The only claim is that ABC would be liable as the successor in interest to AAI as a result of the merger." Docket No. 61-2, at 4. It appears the central fact dividing the parties on this ground is the fact that Buschman alleges that ABC itself — by failing to notify Buschman of the earlier cancellation of his insurance coverage — engaged in conduct that constitutes negligence or breach of contract. Accordingly, Buschman was unable to agree with the counter-stipulation statement that "No claim is made that ABC itself did anything wrong."
As a preliminary matter, ABC first argues in its opposition that Buschman's motion represents an untimely motion for summary judgment. The Court finds this argument unpersuasive. The motion in limine is not seeking judgment as a matter of law on any of Buschman's claims. Rather, it is seeking to preclude specific arguments from being made at trial — arguments, which as described below — are not case dispositive.
Further, ABC argues that it has "consistently . . . contend[ed] that it is not liable for any damages suffered by Plaintiff as a result of AAI's conduct. Instead ABC contends that Dr. Buschman himself is `responsible for any damages even if AAI was negligent or breached its contract with NCAP.'" Docket No. 59-1, at 4. ABC contends that Buschman's motion in limine would "prevent ABC from making this argument." Id. The Court disagrees. All Buschman's motion in limine holds is to the extent the jury finds that AAI engaged in negligent conduct or breached its contract and this conduct caused Buschman's injury, ABC is liable as AAI's successor in interest. This would not prevent ABC from arguing that AAI's conduct was not the cause of Buschman's injury, but rather Buschman's failure to mitigate or comparative negligence was the cause.
The Court finds that, as a matter of law, ABC as the surviving entity of a merger involving AAI is liable for the acts and omissions of AAI to the same extent as if ABC had performed those acts. In January 2008, AAI filed Articles of Merger with the Oregon Secretary of State. Docket No. 60-1.
In its opposition, ABC contends that it is not "obligated to stipulate" regarding the effect of the merger or "with whom liability for AAI's pre-merger conduct resides." Docket No. 5901. Rather, it contends that "Plaintiff is obligated to connect at least some of the dots on his own." Id. As detailed above, Plaintiff has "connected the dots" — it has shown that ABC is the surviving entity resulting from the merger between AAI and "AA Merger Corp."
Under Oregon law, when a merger takes effect, "[a]ll obligations of each of the business entities that were parties to the merger, including, without limitation, contractual, tort, statutory and administrative obligations, are obligations of the surviving business entity." Or. Rev. Stat. § 60.497. California's Corporation Code law is materially similar. See Cal. Corp. Code § 1107 ("Upon merger. . . the surviving corporation . . . shall be subject to all the debts and liabilities of each in the same manner as if the surviving corporation had itself incurred them."). Here, the "surviving business entity" or "surviving corporation" from the merger between AAI and AA Merger Corp. was AAI. A year later, AAI's name was changed to ABC. In these circumstances, and as the Article of Merger fully recognized, the surviving entity (AAI, which then changed its name to ABC) became "subject to all the duties, liabilities, debts, obligations, restrictions and disabilities" of pre-merger AAI. What is more, ABC has wholly failed to substantively contest this point with any citation to or discussion of relevant corporate legal principles. Accordingly, as a matter of law, any act or omission by AAI prior to the merger will be ascribed to ABC.
As stated above, ABC remains free to argue that AAI's acts or omissions were not negligent and did not constitute a breach of any contract. Further, ABC can argue that even if AAI was negligent or breached either the 1995 or 2006 Agreement, it is Buschman's failure to mitigate his damages (or his comparative negligence) that caused his damages. ABC will not, however, be permitted to introduce evidence or make argument that it should not be held liable simply because the act or omission was done by AAI and rather than ABC. Stated simply, the Court understands Buschman's motion in limine to stand for the proposition that ABC is liable for AAI's acts and omissions to the same extent and degree as if ABC itself had engaged in those actions. For the reasons stated above, the Court agrees and, to this extent, Buschman's motion in limine is
The parties shall meet and confer and arrive at a stipulation that reflects the effect of the AAI merger on this case as discussed above. The parties shall file this stipulation with the Court no later than 3:00 p.m., Friday, September 5, 2014.
The parties have filed a joint witness list that includes the following individuals (the party calling the witness is identified parenthetically):
The parties failed to provide an estimate of the length of testimony for each witness as required by this Court's pretrial order. Docket No. 24, at 4.
The parties have filed an exhibit list that includes 150 items. The parties, however, failed to comply with this Court's pretrial order in that they did not file a joint statement in which each side identified 15 bellwether exhibits for which they sought a ruling in advance of trial. Docket No. 24, at 5. The parties filed the required joint statement after a request was made by the Court. Buschman contends that ABC engaged in "gamesmanship" by providing him with his list of exhibits with only 90 minutes to spare before the deadline in question. The Court finds no evidence of gamesmanship on the part of ABC and notes that Buschman did not request an extension of time to file the joint statement. Further, the Court notes this would not have been an issue had the parties initially complied with the Court's pre-trial order.
The Court rules as follows on the parties' bellwether exhibits:
The Court shall not use a jury questionnaire but shall voir dire the potential jurors (taking into account the proposed voir dire submitted by the parties). The Court has already described in its last Case Management Conference order the list of standard questions it intends to ask. See Docket No. 24, a 9. The Court shall also give each party twenty minutes to voir dire the potential jurors after questioning by the Court.
The Court shall provide the parties with the Court's proposed jury instructions in advance of the first day of trial and will schedule a process for comments and resolution of any disputes.
The Court will review the proposed verdict forms and provide a final verdict form before the close of evidence.
Attached to this order are the Court's guidelines for trial in civil cases.
IT IS SO ORDERED.
1. Should a daily transcript and/or real-time reporting be desired, the parties shall make arrangements with the Supervisor of the Court Reporting Services at (415) 522-2079, at least ten calendar days prior to the trial date.
2. During trial, parties may wish to use, e.g., overhead projectors, laser-disk/computer graphics, poster blow-ups, models, or specimens of devices. The United States Marshal requires a court order to allow equipment into the Courthouse. Parties should be prepared to fix any equipment, if necessary.
1. Trial will normally be conducted from 8:30 a.m. to 2:00 p.m. (or slightly longer to finish a witness), with one 15-minute break and one 40-minute lunch break. Parties must arrive by 8:00 a.m. or, in a jury trial, earlier as needed for any matters to be heard out of the presence of the jury. The jury will be called at 8:30 a.m. The trial week is Monday through Friday, excluding holidays. Thursday are dark.
1. In civil jury cases, there are no alternate jurors, and the jury is typically selected as follows. At the outset, 18 potential jurors are called and seated in the jury box and front courtroom bench in the order their names are drawn from the drum. This placement will determine their order in the selection process. The Court will first conduct its voir dire of the entire panel (not just the seated 18) to determine hardships. Jurors excused from the seated 18 will be replaced from those drawn from the panel. The Court will then voir dire the seated 18 for cause. Afterwards, the parties will be allowed a brief follow-up voir dire (15 minutes). Once all voir dire is completed, the Court will address all challenges for cause and excuse those potential jurors who have been successfully challenged. After a short recess, each side may exercise its allotment of peremptory challenges. The plaintiff has the first challenge, the defendant the next two, the plaintiff the next two, and so forth. The default number of peremptory challenges per party or side is three. Any party that passes will be deemed to have used a challenge. The eight (or such other size as will constitute the jury) surviving the challenge process with the lowest numbers become the final jury. Once the jury selection is completed, the jurors' names will be read again, and they will be seated in the jury box and sworn in. The Court may alter the above procedure in its discretion.
2. Jurors may take notes. Note pads will be distributed at the beginning of each trial. The pads will remain in the jury room at the end of each day. Jurors will be instructed on the use of notes both in the preliminary and final jury instructions.
1. Ordinarily, the Court shall set fixed time limits for the presentation of evidence by each side at the final pretrial conference. The time limit includes all examination time (whether direct, cross, re-direct, or re-cross) for each witness regardless of which party called the witness. Opening and closing time limits shall be separately considered.
1. Each side may be subject to a predetermined time limit for its opening statement.
2. Parties must cooperate and meet and confer to exchange any visuals, graphics, or exhibits to be used in the opening statements, allowing for time to work out objections and any reasonable revisions one court day in advance of trial.
3. In a jury case, parties should be prepared to give opening statements as soon as the jury is sworn.
1. At the close of each trial day (at 2:00 p.m.), parties shall exchange a list of witnesses for the next full court day and the exhibits that will be used on direct and cross-examination (other than for impeachment of an adverse witness). By 4:00 p.m. that same day, opposing parties shall provide any objections to such exhibits and further shall provide a list of all exhibits to be used with the same witnesses on cross-examination (other than for impeachment). The Court will address objections before 8:30 a.m. on the following day. The first notice of objection shall be provided one court day prior to the first day of trial. All notices should be provided in writing and filed with the Court, and a courtesy copy should be given to chambers immediately.
2. Parties should always have their next witness ready and in the Courthouse. Failure to have the next witness ready may constitute resting.
3. Parties are expected to cooperate with each other in the scheduling and production of witnesses. Witnesses may be taken out of order if necessary. Every effort shall be made to avoid calling a witness twice (as an adverse witness and later as a party's witness).
4. If a witness is testifying at the time of a recess or adjournment and has not been excused, the witness shall be seated back on the stand when court reconvenes. If a new witness is to be called immediately following recess or adjournment, the witness should be seated in the front row, ready to be sworn.
5. Immediately before each new witness takes the stand, counsel calling the witness shall place on the witness stand a clearly marked copy of each exhibit that counsel expects to have the witness refer to during his or her direct examination. Immediately before beginning cross-examination, counsel conducting cross-examination shall do the same with any additional exhibits to be referenced on cross.
6. If counsel intends to have the witness draw diagrams or put markings on visual exhibits or diagrams prepared by the party calling the witness, the witness shall do so before taking the stand. Once on the stand, the witness shall adopt the diagrams and/or markings and explain what they represent. If the diagram or visual exhibit is prepared by the opposing party, the witness shall not make any markings on the diagram or visual exhibit without leave of the Court.
7. A witness or exhibit not listed in the joint pretrial conference statement may not be called or used without good cause. This rule does not apply to true rebuttal witnesses (other than experts). Defense witnesses are normally considered case-in-chief witnesses, not "rebuttal" witnesses.
1. Depositions used at trial for impeachment shall comply with the following procedure:
a. On the first day of trial, bring the original and clean copies of any deposition(s) intended to be used. A sealed original copy shall be provided to the Judge.
b. The first time a deposition is read, counsel should state the deponent's name, the date of the deposition, and the name of the lawyer asking the question. If the deposition was a Rule 30(b)(6) deposition, counsel should so state.
c. When counsel reads a passage into the record, counsel should simply say, for example, "I wish to read in page ____, lines ____ to ____ from the witness's deposition." A brief pause will be allowed for any objection.
d. Counsel should then proceed by stating "question" and reading the question exactly, then stating "answer" and reading the answer exactly. Stating "question" and "answer" is necessary so that the court reporter, the Court, and the jury (in a jury trial) can follow who was talking at the deposition.
e. Rather than reading a passage, counsel is free to play a videotaped version of the passage, but counsel must have a system for immediate display of the precise passage.
1. The following procedure applies only to witnesses who appear by deposition. It does not apply to live witnesses whose depositions are read in while they are on the stand. To prepare designated deposition testimony, counsel shall photocopy the cover page, the page where the witness is sworn, and each page from which any testimony is proffered, including pages containing a counter-designation made by opposing counsel. Counsel should redact objections or colloquy unless needed to understand the question. In addition, counsel should redact any testimony that has not been designated or any testimony to which an objection has been made and sustained by the Court. Any corrections must be interlineated and references to exhibit numbers must conform to the trial numbers. The finished packet should then be the actual script and should smoothly present the identification and swearing of the witness and testimony desired.
2. Counsel is free to play a videotaped version of any deposition testimony, but counsel must have a system for immediate display of the precise testimony omitting any properly redacted passages.
1. Use numbers only, not letters, for exhibits, preferably the same numbers as were used in depositions. Blocks of numbers should be assigned to fit the need of the case (e.g., Plaintiff has 1 to 100, Defendant A has 101 to 200, Defendant B has 201 to 300, etc.). A single exhibit should be marked only once. If the plaintiff has marked an exhibit, then the defendant should not re-mark it. Different versions of the same document, e.g., a copy with additional handwriting, must be treated as different exhibits. To avoid any party claiming "ownership" of an exhibit, all exhibits shall be marked and referred to as "Trial Exhibit No. ____," not as "Plaintiff's Exhibit" or "Defendant's Exhibit." If an exhibit number differs from that used in a deposition transcript, however, then the latter must be conformed to the new trial number if and when the deposition testimony is read (so as to avoid confusion over exhibit numbers).
2. Exhibits are not to be filed but rather shall be submitted to chambers (two sets). Exhibits must be premarked. In addition, one set of exhibits must be tagged. Exhibits shall be three-hole punched and shall be submitted in binders. Sample tags may be obtained from the Courtroom Deputy and are attached as Exhibit A hereto.
3. Parties must consult with each other and with the Courtroom Deputy at the end of each trial date and compare notes as to which exhibits are in evidence and any limitations thereon. If there are any differences, parties should bring them promptly to the Court's attention.
4. In a jury trial, before the case goes to the jury, parties must confer with the Courtroom Deputy to make sure the exhibits going to the jury room are all in evidence and in good order. Parties may, but are not required to, jointly provide a revised list of all exhibits actually in evidence (and no others) stating the exhibit number and a brief, non-argumentative description (e.g., letter from A to B, dated August 17, 1999). This list may go into the jury room to help the jury sort through exhibits. In a bench trial, parties may follow a similar procedure to help the Court sort through exhibits.
1. Counsel shall stand when making objections and briefly state the basis of the objection.
2. Counsel shall not make speaking objections.
3. There can be only one lawyer per witness per party for all purposes, including objections.
4. In a jury trial, sidebar conferences are discouraged. The procedures outlined in these guidelines should eliminate the need for most sidebars.
5. In a jury trial, to maximize jury time, parties must alert the Court in advance of any problems that will require discussion outside the presence of the jury so that the conference can be held before court begins or after the jury leaves for the day.
1. Shortly before trial or a final pretrial conference, parties occasionally wish jointly to advise the Courtroom Deputy that a settlement has been reached and seek to take the matter off calendar, but it turns out later that there was only a settlement "in principle" and disputes remain. Cases, however, cannot be taken off calendar in this manner. Unless and until a legally binding settlement is reached, all parties must be prepared to proceed with the final pretrial conference as scheduled and to proceed to trial on the trial date, or face dismissal of the case for lack of prosecution or entry of default judgment. To facilitate settlement, the Court is available to place the material terms of a settlement on the record. Only an advance continuance expressly approved by the Court will release parties from their obligation to proceed to trial. If parties expect that a settlement will be final by the time of trial or the final pretrial conference, they should notify the Court immediately in writing or, if it occurs over the weekend before the trial or conference, by voicemail to the Courtroom Deputy. The Court will attempt to confer with the parties as promptly as circumstances permit to determine if a continuance will be in order or if it can assist the parties in putting the settlement on the record. Pending such a conference, however, parties must prepare and make all filings and be prepared to proceed with trial.
2. Civil Local Rule 40-1 provides that jury costs may be assessed as sanctions for failure to provide the Court with timely written notice of a settlement. Please be aware that any settlement reached on the day of trial, during trial, or at any time after the jury or potential jurors have been summoned will normally require the parties to pay juror costs.
Wolf, 114 Cal. App. 4th at 1351 (citation omitted); see also Cetigram Argentina, S.A. v. Centigram Inc., 60 F.Supp.2d 1003, 1007 (N.D. Cal. 1999) ("Interpretation of the contract is an issue of law if a) the contract is not ambiguous, or b) the contract is ambiguous but no parol evidence is admitted or the parol evidence is not in conflict.").
Docket No. 60-1, at 7 (emphasis added). It is thus apparent that while MiraMed Global Services, Inc. entered into a merger agreement and may have been the parent company of AA Merger Corp. (the so called "Merger Subsidiary," MiraMed itself did not merge with AAI, but rather AA Merger Corp. did.
