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  • Writer's pictureShelly Albaum

CA Trial Begins Tuesday May 12

I don't know how I missed it, but on January 23rd Judge Carney entered an order back-dated to January 22nd setting our trial date. You can read the order here:

The Court hereby schedules a pretrial conference for Monday, April 20, 2020 at 3:00 p.m. and a jury trial for Tuesday, May 12, 2020 at 8:30 a.m.

It's going to be a short trial, too:

As discussed at the January 21, 2020 hearing, the Court will impose time limits in this case. Each side will have fourteen hours to present, not including jury selection, opening statements, or closing arguments. The parties’ allotted time includes the time spent on direct and re- direct examination of its own witnesses as well as cross-examination and re-cross- examination of the other party’s witnesses.

Judge Carney reiterated his disinterest in seeing any motions in limine filed. (Motions in limine seek to limit the other side's ability to present evidence at trial):

As discussed at the January 21, 2020 hearing, the Court strongly discourages the parties from filing motions in limine. Such motions should be unnecessary given the extensive motion practice in this case and the time limits to be imposed at trial...

His Honor then offered the parties a brief primer in evidentiary motion practice:

A motion in limine is a procedural tool to expedite trial and prevent anticipated prejudicial evidence before it is offered...The advantage of a motion in limine is “to avoid the futile attempt to unring the bell in the event a motion to strike is granted in the proceedings before the jury.” It is improper to use motions in limine as a substitute for dispositive motions prescribed by statutes. Doing so circumvents procedural protections that statutory motions provide, blindsides the nonmoving party, and may infringe on the litigant’s right to a jury trial. Nor may a party use a motion in limine to sterilize the other party’s presentation of the case. It is also a misuse of motions in limine to attempt to compel a witness or a party to conform his or her trial testimony to a preconceived factual scenario based on testimony given during pretrial discovery...

It will be interesting to see how the parties respond to this stern warning not to file evidentiary motions. If any such motions do get filed, Judge Carney is likely to just deny them almost immediately.

However, both parties filed motions in limine last August. Let's go back and take a look at those.

1. Exclude Expert Testimony of Lance Gunderson

2. Exclude Expert Testimony of Carla Kagel

3. Exclude Evidence of Personal Conduct by Elysium Personnel

Elysium seems to care very deeply about the personal conduct evidence, but we haven't seen it, yet, because Judge Carney's order unsealing the prior exhibits only applied to the summary judgment motions, not to the evidentiary motions.

I can't believe that Elysium won't try again to exclude that from the trial. However, I think they are less likely to renew their objections to the testimony of ChromaDex's expert.

1. Exclude expert testimony of Iain Cockburn

2. Exclude references to the Honig/Brauser/Frost investigations

3. Prevent Elysium from referring to a "fraudulent spreadsheet"

4. Prevent Elysium from referring to royalty refunds as evidence of patent misuse

Judge Carney, in his summary judgment ruling, already derogated the Cockburn testimony a great deal, and you would think the same arguments would be appropriate for the rest of the Cockburn testimony, but apparently not.

ChromaDex's other three requests, like Elysium's concern about personal conduct evidence, go directly to the risk of allowing the jury to be prejudiced by non-probative evidence. As Judge Carney suggested in his ruling above, it is better to prevent the introduction of such evidence in the first place than wait for a motion to strike and then admonish the jury to ignore what they just heard.

So we'll see. If any of those motions are renewed, they will be heard at the pretrial conference on April 20.

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