United States District Court, D. Utah
THORNE RESEARCH, INC. and SOFTGELFORMULATORS, INC., Plaintiffs,
XYMOGEN, INC. Defendant.
MEMORANDUM DECISION AND ORDER GRANTING
PLAINTIFFS' REQUEST FOR CURATIVE JURY INSTRUCTION AND
GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION
TO MODIFY COURT'S PROPOSED CURATIVE JURY
Stewart United States District Judge
matter is before the Court on Plaintiffs' request for a
curative instruction and Defendant's Motion to Modify
Court's Proposed Curative Jury Instruction. For the
reasons discussed below, the Court will grant Plaintiffs'
request and deny Defendant's Motion in part and deny it
opening statements counsel for Defendant made certain
statements suggesting the jury could draw certain inferences
and conclusions based on the fact that the parties intend to
use Dr. Judy's deposition testimony, rather than call him
as a live witness. While Plaintiffs did not object at the
time, Plaintiffs timely requested a curative instruction.
Defendant does not object to the Court giving an instruction
on the proper weight and consideration to be given to
deposition testimony, but does object to certain statements
in the Court's proposed instruction.
decision to allow counsel to comment on a missing witnesses
rests with the discretion of the Court. Four factors must
be present before a jury can be instructed to draw a negative
inference from a party's failure to call a witness: (1)
the party must have the power to produce the witness; (2) the
witness must not be one who would ordinarily be expected to
be biased against the pparty; (3) the witness's testimony
must not be comparatively unimportant, or cumulative, or
inferior to what is already utilized in the trial; and (4)
the witness must not be equally available to testify for
either side. The party requesting the adverse inference
bears “the burden to demonstrate that these criteria
are satisfied.” “A curative instruction may be
appropriate where the issue arises during closing argument or
at some other time in trial and the necessary prerequisites
for an adverse inference have not been
time counsel made his statements during opening statements,
Defendant had not presented anything to suggest it had or
could meet the necessary requirements for an adverse
inference. Defendant's Motion does not address these
factors, nor do any of the cases cited in that Motion.
Moreover, even if these factors were present, opening
statements is not the appropriate time to address this issue.
Thus, the Court finds that a curative instruction is
objects to the first and last sentences of the Court's
proposed instruction, which state: “In opening
statements yesterday, counsel for XYMOGEN suggested to you
that you were entitled to draw certain conclusions or
inferences from the fact that Dr. William Judy, the
co-inventor of the ‘888 patent, will testify by
deposition, rather than in person, ” and “You are
instructed to disregard the comments made by counsel insofar
as those comments are in conflict with this
instruction.” Defendant argues that these statements
are unnecessary and are prejudicial. The Court disagrees.
Defendant created the need for the instruction by
counsel's improper and unsupported statements during
openings. Further, the Court believes that its proposed
instruction is a neutral statement and does not cast any
unfair aspersions against counsel. However, the Court will
slightly modify the last sentence to state that the jury
should disregard the statements by counsel to the
extent those comments are in conflict with the
Court's instruction. This modification should ameliorate
some of the concern raised by Defendant.
Court wishes to make clear that it will not permit counsel to
comment on the absence of Dr. Judy, or any other witness, in
this case. In Wilson, the Tenth Circuit stated that
it was permissible for the court to allow both parties to
comment on the absence of the missing witness. “When an
absent witness is equally available to both parties, either
party is open to the inference that the missing testimony
would have been adverse to it.” However, as stated, this
decision rests in the discretion of the Court
recognizing that it has the discretion to allow such
statements, the Court will not exercise that discretion here.
This case is similar to Latin American Music Co. v.
American Society of Composers Authors and
Publishers,  where the First Circuit upheld the refusal
to provide a missing witness instruction. There, as here, the
parties presented the testimony of an individual by
deposition. Both parties stipulated that the witness would
appear by deposition because he resided outside the district.
The deposition was videotaped and shown to the jury and the
witnesses' inability to testify was explained at trial.
Under these circumstances, the court held that the district
court did not abuse its discretion in denying a missing
same result is warranted here. The parties have both
indicated they plan to present Dr. Judy's testimony
through the use of his deposition. No. objection has been
lodged by either party to this practice. The parties have
been given the opportunity to provide designations,
counter-designations, and objections to those designations
and counter-designations. The jurors will be shown the
videotaped deposition of Dr. Judy and will be able to draw
their own conclusions about his testimony. Allowing counsel
to comment on Mr. Judy's absence would serve only to
confuse the issues and mislead the jury. Therefore, the
Court will not allow the parties to comment on Mr. Judy's
absence and will offer a curative instruction based on
counsel's improper statement during opening statements.
therefore ORDERED that Plaintiffs' Request for a Curative
Instruction is GRANTED. It is further ORDERED that
Defendant's Motion to Modify Court's Proposed
Curative Jury ...