1 2 3 6 7 NATHANIEL FOSTER, et al., Case No. 3:19-cv-02530-JD
8 Plaintiffs, PRETRIAL ORDER v. 9
10 UNITED AIRLINES, INC., et al., Defendants. 11
12 13 As discussed at the pretrial conference on July 27, 2023, a jury trial is set for August 7, 14 2023, at 9:00 a.m. and will be conducted under these procedures and rulings. 16 1. Trial days are Monday through Thursday. Fridays are reserved for the Court’s other 17 matters, but may be used here if the case is ready for closings or the jury is 18 deliberating. 19 2. Trial will be held each trial day from 9:00 a.m. to 2:00/2:30 p.m., with two 15-minute 20 breaks. The Court will set aside time before the jury is seated at 9:00 a.m. as needed to 21 address urgent matters. 22 3. Plaintiffs, collectively, and each defendant will have up to 30 minutes for opening 23 statements. Duplicative statements by co-parties will not be allowed. The parties are 24 directed to meet and confer on the demonstratives to be used in each side’s opening 25 statements. 26 4. Plaintiffs, collectively, and each defendant will have up to 60 minutes for closing 27 arguments. 1 5. Each side has 10 hours of trial time, excluding opening statements and closing 2 arguments. 3 6. As specified in the Court’s standing order for civil jury trials, the Courtroom Deputy, 4 Ms. Lisa Clark, will have the final word on the time count. 6 1. The Courtroom Deputy will distribute the written juror questionnaire responses to 7 counsel by email by August 1, 2023. The responses will be discussed by Zoom 8 webinar on August 3, 2023, at 1:00 p.m. The Courtroom Deputy will provide counsel 9 with a link. 10 2. The Court will seat nine jurors using the “strike and replace” method. A prospective 11 juror not excused after a round of challenges will be deemed a member of the jury and 12 may not subsequently be challenged. The Court will conduct the voir dire based on its 13 own questions and the questions proposed by the parties. The Court will post the 14 proposed voir dire questions by August 3, 2023. The parties may raise any objections 15 or concerns on August 7, 2023, at the start of jury selection. 16 3. Jury selection typically takes no more than the morning session of the day the venire is 17 sworn in. The parties should be prepared to give an opening statement, if desired, and 18 begin presenting witnesses on August 7, 2023. 20 1. Trial team members who will be present in the courtroom (including attorneys, 21 paralegals, IT staff, interpreters, and any other personnel) need not be masked so long 22 as they have completed a COVID-19 vaccine primary series and received at least one 23 booster. Lead counsel will be responsible for ensuring compliance with this 24 requirement by their team members. 25 2. Witnesses will not be masked while testifying on the witness stand in order to aid jury 26 comprehension and evaluation. If any witness declines or is unable to certify 27 compliance with the vaccination requirement above, the parties should immediately 1 alert the Court -- no later than 24 hours before the witness will be called -- so that any 2 necessary accommodations can be discussed. 3 3. For jurors, the decision to mask will be left up to each individual. 4 4. Pursuant to Federal Rule of Civil Procedure 43(a), all witnesses’ trial testimony must 5 be taken live and in person in open court unless there is a compelling reason not to do 6 so which has been approved by the Court. 8 1. Jury notebooks. Jurors will be permitted to take notes. The parties will prepare jury 9 notebooks and bring 12 copies on the first day of trial. The notebooks should be in the 10 form of 1.5-inch 3-ring binders that have a plastic cover sleeve with a caption page 11 (stating the case name and number), and must include these materials: 12 i. 50 pages of blank, lined paper. 13 ii. A tab for witness photos. The jury will be provided with a color photo (a 14 headshot) of each witness just before that witness takes the stand. The party 15 calling the witness is responsible for providing the Courtroom Deputy with 12 16 three-hole punched, letter-sized copies of each photo. The Courtroom Deputy 17 will distribute the photos to the jury. The witness must appear exactly the same 18 in the photo as they will appear on the witness stand (e.g., same clothing, 19 hairstyle, eyewear). The photo should include the witness’s name. 20 iii. Tabs for the preliminary and final jury instructions, which the Court will 21 distribute. 22 2. Witness exhibit binders. The parties will prepare exhibit binders on a witness-by- 23 witness basis, and have two copies ready to hand to the Court as each witness is called 24 to the stand. 25 3. Sidebars. There will be no sidebars during trial. The parties should not ask for one. 26 Any issues that need to be discussed outside the presence of the jury may be raised 27 before the start of the trial day or when the jury is on a break. 1 4. Motions during trial. No motions may be filed during trial without the Court’s prior 2 approval. Unauthorized motions will be summarily denied. 3 5. Objections. Counsel must stand to state any objections, and should do so by simply 4 stating the rule that forms the basis of the objection. No arguments or elaborations 5 should be made unless called for by the Court. 6 6. Witnesses ready. Each party must have its witnesses for the trial day available in the 7 courthouse and ready to testify. Failure to have the next witness ready or to be 8 prepared to proceed with the evidence will usually constitute resting. 9 7. Disclosure of witnesses. A party must disclose the identity of the witnesses it plans to 10 call -- as well as the exhibits to be used during the direct examination of any witness -- 11 by 3:00 p.m. two court days before calling the witness to the stand, except that Monday 12 witnesses will be disclosed by the preceding Friday at 3:00 p.m., and Tuesday 13 witnesses will be disclosed by the preceding Saturday at 3:00 p.m. The parties may 14 jointly agree to change this disclosure schedule. Any party that has an objection to a 15 witness call must alert the Court as soon as possible, and the Court will take up the 16 objection outside the presence of the jury. 18 1. MIL No. 1 re Nathaniel Foster’s personal marital matters (Dkt. No. 252): 19 GRANTED IN PART. Defendants may present evidence about plaintiffs’ preexisting 20 emotional distress, but not the reasons for any distress with respect to marital issues. 21 2. MIL No. 2 re evidence on causes of NJ Foster’s brain injury (Dkt. No. 253): 22 DENIED IN PRINCIPLE. To the extent that defendants want to offer alternative 23 causes, they must lay an adequate foundation. 24 3. MIL No. 3 re spoliation of evidence (Dkt. No. 254): DENIED. There will be no 25 adverse-inference instruction. Plaintiffs may offer testimony that there are missing 26 recordings of Pamela Foster’s calls to defendant United’s accessibility desk. 27 1 4. MIL No. 4 re precluding defendants from offering evidence that the first 2 responders were negligent (Dkt. No. 255): DENIED. See La. Civ. Code Arts. 2323, 3 2324. 5 1. MIL No. 1 to exclude mention of other incidents alleged against United (Dkt. No. 6 261): DEFERRED TO TRIAL. Plaintiffs have identified too many prior incidents 7 that they intend to introduce at trial, and have not adequately justified why incidents 8 that postdate February 2019 should be admitted. Plaintiffs may offer approximately 9 three to seven proffers, one full court day ahead of time, that identify (i) the prior 10 incident, (ii) the witness who will testify about the prior incident, and (iii) how the 11 prior incident is substantially similar to this case. See Elsworth v. Beech Aircraft 12 Corp., 37 Cal. 3d 540, 555 (1984). 13 2. MIL No. 2 to exclude mention of certain conditions at Monroe Regional Airport 14 (MLU) (Dkt. No.
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1 2 3 6 7 NATHANIEL FOSTER, et al., Case No. 3:19-cv-02530-JD
8 Plaintiffs, PRETRIAL ORDER v. 9
10 UNITED AIRLINES, INC., et al., Defendants. 11
12 13 As discussed at the pretrial conference on July 27, 2023, a jury trial is set for August 7, 14 2023, at 9:00 a.m. and will be conducted under these procedures and rulings. 16 1. Trial days are Monday through Thursday. Fridays are reserved for the Court’s other 17 matters, but may be used here if the case is ready for closings or the jury is 18 deliberating. 19 2. Trial will be held each trial day from 9:00 a.m. to 2:00/2:30 p.m., with two 15-minute 20 breaks. The Court will set aside time before the jury is seated at 9:00 a.m. as needed to 21 address urgent matters. 22 3. Plaintiffs, collectively, and each defendant will have up to 30 minutes for opening 23 statements. Duplicative statements by co-parties will not be allowed. The parties are 24 directed to meet and confer on the demonstratives to be used in each side’s opening 25 statements. 26 4. Plaintiffs, collectively, and each defendant will have up to 60 minutes for closing 27 arguments. 1 5. Each side has 10 hours of trial time, excluding opening statements and closing 2 arguments. 3 6. As specified in the Court’s standing order for civil jury trials, the Courtroom Deputy, 4 Ms. Lisa Clark, will have the final word on the time count. 6 1. The Courtroom Deputy will distribute the written juror questionnaire responses to 7 counsel by email by August 1, 2023. The responses will be discussed by Zoom 8 webinar on August 3, 2023, at 1:00 p.m. The Courtroom Deputy will provide counsel 9 with a link. 10 2. The Court will seat nine jurors using the “strike and replace” method. A prospective 11 juror not excused after a round of challenges will be deemed a member of the jury and 12 may not subsequently be challenged. The Court will conduct the voir dire based on its 13 own questions and the questions proposed by the parties. The Court will post the 14 proposed voir dire questions by August 3, 2023. The parties may raise any objections 15 or concerns on August 7, 2023, at the start of jury selection. 16 3. Jury selection typically takes no more than the morning session of the day the venire is 17 sworn in. The parties should be prepared to give an opening statement, if desired, and 18 begin presenting witnesses on August 7, 2023. 20 1. Trial team members who will be present in the courtroom (including attorneys, 21 paralegals, IT staff, interpreters, and any other personnel) need not be masked so long 22 as they have completed a COVID-19 vaccine primary series and received at least one 23 booster. Lead counsel will be responsible for ensuring compliance with this 24 requirement by their team members. 25 2. Witnesses will not be masked while testifying on the witness stand in order to aid jury 26 comprehension and evaluation. If any witness declines or is unable to certify 27 compliance with the vaccination requirement above, the parties should immediately 1 alert the Court -- no later than 24 hours before the witness will be called -- so that any 2 necessary accommodations can be discussed. 3 3. For jurors, the decision to mask will be left up to each individual. 4 4. Pursuant to Federal Rule of Civil Procedure 43(a), all witnesses’ trial testimony must 5 be taken live and in person in open court unless there is a compelling reason not to do 6 so which has been approved by the Court. 8 1. Jury notebooks. Jurors will be permitted to take notes. The parties will prepare jury 9 notebooks and bring 12 copies on the first day of trial. The notebooks should be in the 10 form of 1.5-inch 3-ring binders that have a plastic cover sleeve with a caption page 11 (stating the case name and number), and must include these materials: 12 i. 50 pages of blank, lined paper. 13 ii. A tab for witness photos. The jury will be provided with a color photo (a 14 headshot) of each witness just before that witness takes the stand. The party 15 calling the witness is responsible for providing the Courtroom Deputy with 12 16 three-hole punched, letter-sized copies of each photo. The Courtroom Deputy 17 will distribute the photos to the jury. The witness must appear exactly the same 18 in the photo as they will appear on the witness stand (e.g., same clothing, 19 hairstyle, eyewear). The photo should include the witness’s name. 20 iii. Tabs for the preliminary and final jury instructions, which the Court will 21 distribute. 22 2. Witness exhibit binders. The parties will prepare exhibit binders on a witness-by- 23 witness basis, and have two copies ready to hand to the Court as each witness is called 24 to the stand. 25 3. Sidebars. There will be no sidebars during trial. The parties should not ask for one. 26 Any issues that need to be discussed outside the presence of the jury may be raised 27 before the start of the trial day or when the jury is on a break. 1 4. Motions during trial. No motions may be filed during trial without the Court’s prior 2 approval. Unauthorized motions will be summarily denied. 3 5. Objections. Counsel must stand to state any objections, and should do so by simply 4 stating the rule that forms the basis of the objection. No arguments or elaborations 5 should be made unless called for by the Court. 6 6. Witnesses ready. Each party must have its witnesses for the trial day available in the 7 courthouse and ready to testify. Failure to have the next witness ready or to be 8 prepared to proceed with the evidence will usually constitute resting. 9 7. Disclosure of witnesses. A party must disclose the identity of the witnesses it plans to 10 call -- as well as the exhibits to be used during the direct examination of any witness -- 11 by 3:00 p.m. two court days before calling the witness to the stand, except that Monday 12 witnesses will be disclosed by the preceding Friday at 3:00 p.m., and Tuesday 13 witnesses will be disclosed by the preceding Saturday at 3:00 p.m. The parties may 14 jointly agree to change this disclosure schedule. Any party that has an objection to a 15 witness call must alert the Court as soon as possible, and the Court will take up the 16 objection outside the presence of the jury. 18 1. MIL No. 1 re Nathaniel Foster’s personal marital matters (Dkt. No. 252): 19 GRANTED IN PART. Defendants may present evidence about plaintiffs’ preexisting 20 emotional distress, but not the reasons for any distress with respect to marital issues. 21 2. MIL No. 2 re evidence on causes of NJ Foster’s brain injury (Dkt. No. 253): 22 DENIED IN PRINCIPLE. To the extent that defendants want to offer alternative 23 causes, they must lay an adequate foundation. 24 3. MIL No. 3 re spoliation of evidence (Dkt. No. 254): DENIED. There will be no 25 adverse-inference instruction. Plaintiffs may offer testimony that there are missing 26 recordings of Pamela Foster’s calls to defendant United’s accessibility desk. 27 1 4. MIL No. 4 re precluding defendants from offering evidence that the first 2 responders were negligent (Dkt. No. 255): DENIED. See La. Civ. Code Arts. 2323, 3 2324. 5 1. MIL No. 1 to exclude mention of other incidents alleged against United (Dkt. No. 6 261): DEFERRED TO TRIAL. Plaintiffs have identified too many prior incidents 7 that they intend to introduce at trial, and have not adequately justified why incidents 8 that postdate February 2019 should be admitted. Plaintiffs may offer approximately 9 three to seven proffers, one full court day ahead of time, that identify (i) the prior 10 incident, (ii) the witness who will testify about the prior incident, and (iii) how the 11 prior incident is substantially similar to this case. See Elsworth v. Beech Aircraft 12 Corp., 37 Cal. 3d 540, 555 (1984). 13 2. MIL No. 2 to exclude mention of certain conditions at Monroe Regional Airport 14 (MLU) (Dkt. No. 262): DENIED for the reason stated on the record. 15 3. MIL No. 3 to exclude mention of certain conduct of United (Dkt. No. 263): 16 DENIED for the reason stated on the record. 17 4. MIL No. 4 to exclude evidence of NJ Foster’s seat assignment on the flight from 18 Houston to Monroe (Dkt. No. 249): DENIED for the reason stated on the record. 19 5. MIL No. 5 to exclude any suggestion that the Houston-Monroe flight had not been 20 completed at the time of the incident (Dkt. No. 250): DENIED for the reason stated 21 on the record. 22 6. MIL No. 6 to exclude evidence that NJ Foster has any ability to experience 23 conscious awareness, experience pain, or respond to stimuli or exhibit emotion 24 (Dkt. No. 256): GRANTED IN PRINCIPLE. Plaintiffs are not permitted to 25 contradict their own expert to the extent that the expert has opined that NJ is in a 26 persistent vegetative state, cannot experience pain, and/or has no conscious awareness. 27 7. MIL No. 7 to exclude evidence of alleged improper conduct prior to the incident 1 8. MIL No. 8 to exclude evidence of bystander plaintiffs’ emotional distress not 2 caused by the viewing of the incident (Dkt. No. 258): GRANTED IN PRINCIPLE. 3 The emotional distress for bystander purposes is limited to plaintiffs’ distress upon 4 witnessing the incident in February 2019, at the airport. See Thing v. La Chusa, 48 5 Cal. 3d 644, 667-68 (1989). 6 || VI. JURY INSTRUCTIONS AND VERDICT FORM 7 1. Proposed jury instructions. As discussed with the parties, the jury instructions 8 should follow the most recent publications of the applicable model instructions (Ninth 9 Circuit Model Civil Jury Instructions, California Civil Jury Instructions, etc.) to the 10 fullest extent possible. 11 2. Preparation of preliminary and final jury instructions. The parties are instructed to 12 revise the jury instructions and file them by August 2, 2023, at 12:00 p.m. The 5 13 instructions should be filed separately as preliminary and final instructions. To the 14 fullest extent possible, the preliminary instructions should copy the language and 15 format in the Avnet case, No. 17-7046, Dkt. No. 353, and the final instructions should 16 do the same with respect to Dkt. No. 375 in Avnet. The revised sets should include 3 17 source notes. Microsoft Word versions of both sets must be emailed to the Court’s 18 jdpo email address. The parties will have an opportunity to comment on the final 19 versions of these instructions before the Court reads them to the jury. 21 Dated: August 1, 2023 22 23 JAMEYPONATO- United tates District Judge 25 26 27 28