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United States ex rel. Kiro v. Jiaherb Inc.

United States District Court, C.D. California

July 3, 2019

UNITED STATES OF AMERICA, ex rel. TRAVIS KIRO Plaintiff,
v.
JIAHERB, INC., Defendant.

          ORDER RE: RELATOR'S MOTION IN LIMINE 1-7 [95]; DEFENDANT'S MOTION IN LIMINE 1-9 [98]

          HONORABLE RONALD S.W. LEW SENIOR UNITED STATES DISTRICT JUDGE

         Currently before the Court is Relator Travis Kiro's (“Relator”) Motion in Limine (“MIL”) 1-7 [95]; and Defendant Jiaherb, Inc.'s (“Defendant”) MIL 1-9 [98]. Having reviewed all papers submitted pertaining to the Motions, the Court NOW FINDS AND RULES AS FOLLOWS: the Court GRANTS Relator's MIL #1; GRANTS Relator's MIL #2; DENIES Relator's MIL #3; GRANTS Relator's MIL #4; DENIES Relator's MIL #5; DENIES Relator's MIL #6; GRANTS Relator's MIL #7; GRANTS Defendant's MIL #1; GRANTS Defendant's MIL #2; GRANTS Defendant's MIL #3; DENIES Defendant's MIL #4; GRANTS Defendant's MIL #5; GRANTS Defendant's MIL #6; GRANTS Defendant's MIL #7; DENIES Defendant's MIL #8; and GRANTS Defendant's MIL #9.

         I. BACKGROUND

         This case arises out of a qui tam action brought by Relator on behalf of himself in the name of the United States Government (“the Government”) for violations of the False Claims Act, 31 U.S.C. § 3729 et seq. (“FCA”). Compl., ECF No. 1. The Government declined to intervene [22]. Currently before the Court are Relator's and Defendant's MIL for the forthcoming trial currently set for July 9, 2019. Relator filed seven MIL seeking the Court to:

MIL #1) Preclude Defendant from referring to or advising the jury about penalties under the FCA
MIL #2) Exclude all reference to the recovery of attorneys' fees and expenses under the FCA
MIL #3) Exclude evidence regarding any purported “Government knowledge” defense
MIL #4) Not permit Defendant to argue or introduce evidence that the Government has not intervened
MIL #5) Preclude Defendant from asserting equitable affirmative defenses
MIL #6) Preclude Defendant from introducing prejudicial and irrelevant evidence about Relator
MIL #7) Preclude Defendant from introducing self-serving evidence about its or its employees' charitable activities

Defendant filed nine MIL seeking the Court to:

MIL #1) Not qualify Relator Travis Kiro as an expert witness
MIL #2) Exclude proposed expert testimony from Relator Travis Kiro regarding the price of imports, the processes and composition of imports, proper duties owed, and customs procedures
MIL #3) Exclude Relator Travis Kiro's proposed expert testimony
MIL #4) Exclude character evidence or testimony regarding alleged prior acts unrelated to the payment of customs duties
MIL #5) Limit evidence and testimony to exclude any continued, unnecessary, harmful interference with Defendant's business relationships
MIL #6) Exclude any evidence or testimony implying an alleged scheme was more likely because Defendant's parent company is located in China
MIL #7) Limit evidence and testimony to the issues raised by the Complaint
MIL #8) Require properly identified trial exhibits and exclude Relator's proposed exhibits to the extent they contain irrelevant, immaterial and inadmissible evidence
MIL #9) Exclude evidence concerning Defendant's finances

         II. DISCUSSION

         A. Relator's MIL

         1. Relator's MIL #1 is GRANTED

         In Relator's MIL #1, Relator requests that the Court preclude the introduction of any evidence or argument to the jury regarding the FCA's mandatory civil penalties. The FCA provides that any person who violates the Act “is liable to the United States Government for a civil penalty of not less than $5, 000 and not more than $10, 000 . . . plus 3 times the amount of damages which the Government sustains because of the act of that person.” 31 U.S.C. § 3729(a)(1). Relator is correct that the role of the jury in this case is to determine whether Defendant violated the FCA, and if so, the number of violations. The imposition of penalties are reserved to the Court as a matter of law. See, e.g., Cook County, Ill. v. United States ex rel. Chandler, 123 S.Ct. 1239, 1247 (2003) (citing 31 U.S.C. § 3729(a)) (“But under the FCA, . . . if [the jury] finds liability, its instruction is to return a verdict for actual damages, for which the court alone then determines any multiplier, just as the court alone sets any separate penalty.”); Brooks v. Cook, 938 F.2d 1048, 1052 (9th Cir. 1991) (“The majority rule is that it is error for a court to instruct a jury that it will subsequently treble any damages the jury awards.”). Moreover, ...


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