[00:00:11] Speaker 03:
And next we will hear on Wendy Cunning versus Sky Bioscience Inc.

[00:00:52] Speaker 04:
Good morning, Ms.

[00:00:53] Speaker 04:
Voits.

[00:00:54] Speaker 01:
Good morning, Your Honor.

[00:00:55] Speaker 01:
May it please the Court, I'd ask to reserve three minutes of my time for rebuttal, if I may.

[00:00:59] Speaker 04:
Very well.

[00:01:01] Speaker 01:
My name is Anne Voits, and I represent Appellant Sky Bioscience.

[00:01:05] Speaker 01:
The evidence at trial showed that Ms.

[00:01:07] Speaker 01:
Cunning was terminated because her skills lay in marketing, and Sky, an early-stage biopharmaceutical company, had nothing to market.

[00:01:14] Speaker 00:
Would you slow down, please?

[00:01:14] Speaker 00:
You're going so quickly that you're missing what you're saying.

[00:01:18] Speaker 04:
And I'll give you some advice that Judge Berzon gave to other counsel, which is it's sometimes better just to argue your case instead of reading your notes, because we want to hear from you.

[00:01:29] Speaker 04:
I really want to hear what you're thinking about this case, but you do what you need to do.

[00:01:35] Speaker 01:
Certainly, Your Honor.

[00:01:36] Speaker 01:
What I was going to say was that the evidence at trial showed that Ms.

[00:01:39] Speaker 01:
Cunning was terminated because her skills no longer fit the needs of the company, not for any other reason.

[00:01:46] Speaker 01:
And the reason that the jury reached a contrary verdict is based on four critical errors that the district court committed, any one of which would warrant relief, but all of which combined compel reversal.

[00:01:59] Speaker 01:
So I'd like to begin, if I may, with the evidentiary issues, because I think those are sort of the threshold core issue.

[00:02:07] Speaker 01:
What the court did was it allowed in evidence that was entirely irrelevant to the substance of Ms.

[00:02:12] Speaker 01:
Cunning's claims.

[00:02:14] Speaker 01:
It did so, even though that evidence was deeply prejudicial, and it did so over Skye's objection.

[00:02:20] Speaker 01:
That evidence included testimony that she believed that the board of directors included members who had had dealings with the Russian mafia,

[00:02:29] Speaker 00:
with the Canadian mafia, that one of them had brandished a gun, and most critically, that— But Miss Voits, what questioning brought that into relevance other than saying to Miss Cunning, as she was asked at cross-examination, you didn't tell anybody else except Murphy?

[00:02:53] Speaker 00:
And she said, that's right, I didn't tell anybody else about Murphy.

[00:02:57] Speaker 00:
So you opened the door to the question, why didn't you tell anybody else than Murphy?

[00:03:03] Speaker 00:
And the answer is, because they were all crooks, right?

[00:03:07] Speaker 01:
Well, Your Honor, if I may, I have two responses to that.

[00:03:09] Speaker 00:
Did they open the issue by asking why didn't she ask, or did you do so, or pardon me, the trial counsel opened the door by asking why?

[00:03:18] Speaker 01:
Your Honor, they began with it.

[00:03:20] Speaker 01:
All of this came in in their opening statement.

[00:03:24] Speaker 01:
It was the first thing that the jury heard, was in opening statement, was about the alleged misdeeds of Avatar Dillon.

[00:03:32] Speaker 00:
Did you object to that, saying that that was irrelevant?

[00:03:35] Speaker 01:
Your Honor, yes, they had objected in their motion in Lemonay.

[00:03:38] Speaker 01:
We objected based on relevance and 403 grounds.

[00:03:42] Speaker 01:
The court denied that.

[00:03:44] Speaker 01:
And we would submit that that was more than sufficient to raise the issue.

[00:03:49] Speaker 01:
Once that came in, first off, Skye had also said that complaining to Dr. Murphy was enough.

[00:03:56] Speaker 01:
Second, even if the court nonetheless thought it was necessary for it to come in, there were absolutely no limiting instructions given that would actually tell the jury what purpose it should consider it for and that it should only consider it for her state of mind.

[00:04:11] Speaker 01:
Instead, what Ms.

[00:04:14] Speaker 01:
Cunning did and what her counsel did was to say that this was a group of people who all did bad things and therefore they should believe that they had also done this bad thing.

[00:04:24] Speaker 01:
That was improper and the court should not have allowed it.

[00:04:29] Speaker 01:
With respect to the evidence that came in,

[00:04:33] Speaker 01:
that included not just the allegations about involvement with the Russian and Canadian mafias, it also included detailed evidence about Avatar Dillon's unrelated criminal convictions.

[00:04:45] Speaker 01:
And it is difficult to overstate that prejudice to Skye in this case, because again, it came in with no instructions for the jury.

[00:04:56] Speaker 01:
It came in against a case where there was very little evidence affirmatively to support her case.

[00:05:01] Speaker 00:
There was a request of an instruction to the jury that they would consider Mr. Dillon's refusal to testify and draw an adverse inference from that, and the judge refused to give it.

[00:05:15] Speaker 01:
That is correct.

[00:05:17] Speaker 01:
The court also, however, did not tell them for what purpose they could consider that.

[00:05:21] Speaker 01:
The court never told the jury, you should consider this only for purposes of her state of mind.

[00:05:27] Speaker 01:
To the jury's impression, they could consider the evidence of Avatar Dillon's guilty plea,

[00:05:32] Speaker 01:
of the allegations about involvement with the mafia and the allegations about Mr. Hepple brandishing a gun for any purpose that they chose.

[00:05:41] Speaker 02:
Should the district court have instructed Mr. Dillon to testify to answer the questions?

[00:05:46] Speaker 02:
He couldn't answer the questions to whether he at one time had possessed a medical license.

[00:05:50] Speaker 01:
Your Honor, I think that is, as we pointed out, in Skye's opposition to the motion to eliminate, there should have been a question by question assessment.

[00:05:59] Speaker 01:
First, was the invocation warranted?

[00:06:02] Speaker 02:
Skye had an opportunity to cross-examine Mr. Dillon and did examine him, even though he invoked the fifth every time.

[00:06:08] Speaker 02:
They did.

[00:06:09] Speaker 01:
We think at that point the damage was done.

[00:06:11] Speaker 01:
At that point there had been a series of questions asked by plaintiff's counsel to which he had invoked, even on the most tenuous of grounds, his Fifth Amendment rights.

[00:06:20] Speaker 01:
The fact that he was allowed to do that in front of the jury was wrong.

[00:06:23] Speaker 01:
The fact that there was no attempt to assess outside the presence of the jury whether that invocation was proper was wrong.

[00:06:30] Speaker 01:
And again, the prejudice of that was enormous and can't be overstated.

[00:06:35] Speaker 01:
The argument that, in fact, was one that plaintiffs' counsel returned to time and time again in opening throughout trial with virtually every witness that they questioned and in closing.

[00:06:48] Speaker 01:
We think for that reason that those evidentiary issues are reason enough to reverse.

[00:06:53] Speaker 02:
What should the district court have done?

[00:06:56] Speaker 02:
Should the district court have just simply barred Dylan's testimony altogether?

[00:07:00] Speaker 01:
I think, yes, as an initial matter, yes, it should have.

[00:07:03] Speaker 01:
At a minimum, it should have simply allowed there to be a statement that he had invoked the Fifth.

[00:07:08] Speaker 01:
It should have tested whether that invocation was proper, particularly for questions that were related to the claims here, because that was deeply prejudicial for him to stand up.

[00:07:17] Speaker 02:
On the question as to whether he should have barred Mr. Dillon altogether, you should have barred him because he was going to invoke the Fifth or because he was irrelevant?

[00:07:24] Speaker 02:
I think either would be an adequate basis.

[00:07:26] Speaker 02:
But he surely is relevant.

[00:07:28] Speaker 02:
I think in this case, this is a very, very small operation, this guy's chairman of the board.

[00:07:32] Speaker 01:
It was a very small operation, we agree, but as to whether it was more prejudicial than probative, absolutely.

[00:07:37] Speaker 02:
But it surely would have been probative to the question as to whether he knew anything about cunning, perhaps the nature of their relationship, what kind of contact he had with her.

[00:07:47] Speaker 02:
It would have been relevant as to whether as to whether he was involved in it whether there was any reason to justify Her concerns that she could not go to the board of directors because they were worse than Murphy

[00:07:59] Speaker 01:
And I think in that case what the court could have done was to actually test which questions were appropriate for Dr. Dillon to invoke the fifth.

[00:08:08] Speaker 01:
But it didn't.

[00:08:09] Speaker 01:
It let it in entirely unfettered from any instructions to the jury.

[00:08:15] Speaker 02:
Give me an example of a couple of questions that the district court should not have permitted under any circumstances that were deeply prejudicial.

[00:08:23] Speaker 01:
Certainly, I think the questions that were unrelated to Ms.

[00:08:27] Speaker 01:
Cunning's claims, the questions about his unrelated conviction.

[00:08:32] Speaker 02:
Okay, so we've got the SEC action, but why wouldn't that be relevant to her claim that she had heard

[00:08:42] Speaker 02:
rumors that the board of directors, you know, that the people on the board of directors were engaged in some funny business and therefore she could not go to them to report on what she thought was Murphy's bad behavior.

[00:08:53] Speaker 01:
Because critically it was a function of timing.

[00:08:56] Speaker 01:
The conviction itself came and the charges came long after she had been terminated.

[00:09:02] Speaker 02:
But she might have been aware of rumors of conduct that suggested that she could not reliably go to the board of directors and complain.

[00:09:10] Speaker 01:
But what the court let in was not just what she said she had heard.

[00:09:14] Speaker 01:
It let in the Citron report, which detailed allegations not just against Avatar Dillon, but against other members of the board of directors.

[00:09:22] Speaker 01:
It also let in the evidence of the subsequent charges against Dr. Dillon.

[00:09:26] Speaker 01:
And the guilty plea, I thought, right?

[00:09:27] Speaker 01:
And the guilty plea, that is correct.

[00:09:29] Speaker 01:
And not just testimony about it, but also the documents themselves.

[00:09:33] Speaker 00:
And on the timing, as I understand it,

[00:09:36] Speaker 00:
Not only were the charges against Mr. Dillon regarding a different company, but they were lodged two years after Ms.

[00:09:45] Speaker 00:
Cunning had been terminated.

[00:09:48] Speaker 01:
Yes, Your Honor, that's exactly correct.

[00:09:51] Speaker 01:
And that, we think, makes the argument that it was relevant to her state of mind even more tenuous.

[00:09:58] Speaker 01:
Because how could it have affected her state of mind if it was something that happened later and at a separate company?

[00:10:06] Speaker 01:
So we think given the prejudice there, that under any reasonable 403 analysis, it should have been excluded.

[00:10:16] Speaker 01:
I'm certainly happy to continue addressing the evidentiary issues, but if I might, I'd like to take a few minutes to address some of the other issues that we've also raised, specifically the request for bifurcation, the emotional distress damages, and the statute of limitations defense.

[00:10:31] Speaker 01:
With respect to bifurcation, it is correct that both parties asked for bifurcation.

[00:10:36] Speaker 01:
Skye explained why it thought it was appropriate.

[00:10:38] Speaker 01:
And simply by looking at the trial record, one can see not just some of the

[00:10:44] Speaker 01:
evidence that came in about financial condition, which was one of the reasons that Skye advanced, but also the evidence about the criminal charges, which were at most relevant, as the court had pointed out, to refuting one of Skye's arguments on liability.

[00:10:58] Speaker 01:
It had nothing to do with the punitive damages, which were tied to this particular conduct, not generalized bad behavior.

[00:11:07] Speaker 01:
With respect to the emotional distress issue, it is clear that you can't recover for pre-termination damages given how she had pled her claim.

[00:11:15] Speaker 01:
The jury was told that there was no fixed standard for assessing them.

[00:11:18] Speaker 01:
And when Ms.

[00:11:19] Speaker 01:
Cunningham's counsel asked for emotional damages in closing, what they did was they said you should give her a certain amount of money per minute and that you should calculate it over all this time.

[00:11:28] Speaker 01:
They plainly asked for, both in closing and elsewhere, for damages that applied to emotional distress incurred before.

[00:11:36] Speaker 01:
That, too, was also error.

[00:11:39] Speaker 01:
Finally, with respect to the statute of limitations defense, the court held that it was waived by not raising a pre-verdict rule 50A motion.

[00:11:47] Speaker 01:
But in this case, the court had already ruled on it as a matter of law at the motion for summary judgment.

[00:11:51] Speaker 01:
At a minimum, this court should send it back for the court to correctly consider it.

[00:11:55] Speaker 00:
If it was a joint judgment, both federal and state retaliation, why does that matter?

[00:12:04] Speaker 00:
If we support the federal judgment, the state, the error in the state law has no effect, does it?

[00:12:13] Speaker 01:
No, it does because that is the basis for the punitive damages in this case.

[00:12:17] Speaker 01:
And so that is the relevance.

[00:12:18] Speaker 01:
I see that I'm running short on time.

[00:12:20] Speaker 02:
I do have one last question with respect to Mr. Dillon.

[00:12:24] Speaker 02:
So I did note that Sky did ask questions.

[00:12:29] Speaker 02:
Did you ask the district judge to compel Mr. Dillon to answer any questions?

[00:12:34] Speaker 02:
We did not.

[00:12:36] Speaker 02:
So can you object on that basis here?

[00:12:38] Speaker 02:
Does that make this plain error review as to that claim?

[00:12:41] Speaker 01:
No, we think that we sufficiently raised it by challenging the prejudicial nature of having Mr. Dillon testify, whether it was by... But that's a sort of an interim measure to ask him to compel him to answer certain questions.

[00:12:54] Speaker 02:
If you didn't ask Judge Carter to do that, how can you come

[00:12:57] Speaker 02:
now and complain that Judge Carter didn't compel Dylan to answer some of the questions.

[00:13:01] Speaker 01:
Because, Your Honor, I think what we can say is that in assessing the consequences of the error, what we contend is the error is that it came in at all.

[00:13:09] Speaker 01:
In assessing the consequences, the fact that the court made no attempt to parse what came in and allowed this extended questioning goes to the scope of the impact of that on the verdict.

[00:13:21] Speaker 01:
For those reasons, we think this court should reverse.

[00:13:23] Speaker 01:
If I may, I'd like to reserve the balance of my time.

[00:13:25] Speaker 01:
Very well.

[00:13:26] Speaker 01:
Thank you.

[00:13:27] Speaker 04:
Good morning, Mr. Lowe.

[00:13:38] Speaker 05:
Good morning.

[00:13:39] Speaker 05:
May it please the court, Daniel Lowe, on behalf of plaintiff.

[00:13:42] Speaker 00:
You tried the case, did you not?

[00:13:44] Speaker 05:
I did not, your honor.

[00:13:46] Speaker 05:
No.

[00:13:48] Speaker 05:
On the issue of the evidence of board member misconduct, Skye argued that one of the essential elements of the Whistleblower Protection Act claim was that she needed to report the violation to somebody other than CEO Murphy.

[00:14:03] Speaker 05:
Skye made that argument in closing 7 ER 1498 and in its pre-verdict Rule 50A motion at 6 ER 1363.

[00:14:13] Speaker 05:
The trial court recognized that the evidence went to Cunning's state of mind and provided valid reasons for her not bringing the complaints to the board.

[00:14:25] Speaker 05:
Cunning did not make inflammatory arguments about the evidence and never argued that the board members had a propensity for wrongdoing.

[00:14:33] Speaker 04:
Why did you all need the guilty plea?

[00:14:37] Speaker 04:
You really need the guilty plea?

[00:14:40] Speaker 04:
And why isn't that prejudicial, such that we should ... Didn't you over-try the case?

[00:14:47] Speaker 05:
Well, I did not try the case, but ...

[00:14:53] Speaker 05:
The guilty plea comes in under Rule 609A2 as a crime of dishonesty.

[00:15:00] Speaker 05:
Skye argues that because it was before sentencing, it doesn't come in.

[00:15:07] Speaker 05:
And they cite some state court decisions on that.

[00:15:11] Speaker 05:
But the federal courts have held that a guilty plea counts as a conviction for purposes of Rule 609, even more for sentencing.

[00:15:19] Speaker 05:
And they raised the issue in their reply brief, so we didn't get a chance to respond.

[00:15:24] Speaker 05:
But the 11th Circuit and 10th Circuit have addressed this.

[00:15:27] Speaker 00:
Mr. Lowe, can I interrupt you for a second?

[00:15:29] Speaker 00:
Would you please walk me through this?

[00:15:32] Speaker 00:
If the guilty plea takes place two years after the woman has been terminated,

[00:15:40] Speaker 00:
What relevance does it have as to why she didn't tell her complaints to Mr. Dillon?

[00:15:49] Speaker 05:
Two responses to that, Your Honor.

[00:15:50] Speaker 05:
One, under Rule 609, it's allowed for impeachment purposes.

[00:15:54] Speaker 05:
It's what?

[00:15:55] Speaker 05:
Allowed for impeachment purposes, because he was a witness.

[00:15:58] Speaker 00:
You're impeaching Dillon, who doesn't testify?

[00:16:01] Speaker 05:
He did take the stand, Your Honor.

[00:16:04] Speaker 00:
He said he wouldn't testify.

[00:16:05] Speaker 05:
He answered a couple questions at the beginning.

[00:16:08] Speaker 00:
Yeah, his name.

[00:16:11] Speaker 00:
Sure.

[00:16:12] Speaker 05:
And rule 609, the question is whether he was a witness and he was a witness.

[00:16:16] Speaker 05:
And the second response, your honor, is she testified to being told about these rumors of wrongdoing by Mr. Dillon and others, and the plea and judgment corroborate that testimony.

[00:16:33] Speaker 00:
How does a two-year

[00:16:36] Speaker 00:
plea, which hasn't occurred yet, corroborate that she thought that Dylan was a crook two years before.

[00:16:42] Speaker 05:
Well, it certainly makes more likely that she was telling the truth.

[00:16:46] Speaker 00:
Why doesn't it make more likely, if he didn't commit the act until two years later, why does this?

[00:16:54] Speaker 00:
She says, oh, it's legitimate now because I always suspected that he was a crook.

[00:16:59] Speaker 05:
The conduct that he pleaded guilty to occurred earlier.

[00:17:04] Speaker 05:
How do you know that?

[00:17:05] Speaker 05:
There was a plea agreement that came later.

[00:17:06] Speaker 00:
He pled guilty to... But did she know that?

[00:17:10] Speaker 00:
Where's the evidence that she knew that?

[00:17:13] Speaker 00:
Well, there isn't any.

[00:17:15] Speaker 05:
Okay.

[00:17:16] Speaker 05:
But that's the point is it corroborated that she was told about his misconduct.

[00:17:22] Speaker 00:
After she'd been terminated.

[00:17:28] Speaker 05:
years after she was terminated, it was corroborated that she was engaged in misconduct.

[00:17:35] Speaker 04:
But let's assume that, you know, let's just follow your train of thought here that was relevant.

[00:17:42] Speaker 04:
Let's assume for a second that it is for argument's sake.

[00:17:46] Speaker 04:
But why wasn't there a jury instruction here?

[00:17:49] Speaker 04:
And isn't it error that there wasn't to explain to jury how they could use this particular piece of evidence?

[00:17:57] Speaker 05:
Well, there wasn't a jury instruction because the jury instruction was not requested.

[00:18:02] Speaker 05:
And it's not plain error because, for example, when Ms.

[00:18:08] Speaker 05:
Cunning referenced the evidence in closing.

[00:18:11] Speaker 04:
Well, so a jury can consider that evidence.

[00:18:15] Speaker 04:
This is a bad dude over here, so we're going to rule in this way.

[00:18:18] Speaker 04:
I mean, the jury instruction should be able to advise the jury how they can use that particular piece of

[00:18:24] Speaker 04:
of really, it appears, prejudicial information, don't they?

[00:18:32] Speaker 05:
Well, yes, a jury instruction could have done that, but the way it was used at trial, she made clear the purpose of introducing the evidence.

[00:18:40] Speaker 00:
Didn't the defendant, pardon, didn't the plaintiff request a jury instruction saying that the jury could take an adverse inference from a stranger to testify?

[00:18:53] Speaker 00:
And wasn't that done by you?

[00:18:57] Speaker 00:
And then Judge Carter said, no, that would be too harmful.

[00:19:01] Speaker 00:
Well, then what's the relevance of him not testifying?

[00:19:04] Speaker 05:
Well, there were certainly questions about

[00:19:12] Speaker 05:
whether Mr. Dillon was involved in the termination.

[00:19:17] Speaker 00:
The relevance is that... Was involved in a SEC involvement in another case two years before she was terminated.

[00:19:27] Speaker 00:
Thank you.

[00:19:28] Speaker 00:
Go on to something else.

[00:19:39] Speaker 05:
On the issue of bifurcation,

[00:19:43] Speaker 05:
Sky had the burden of demonstrating that bifurcation was justified under the facts of the case.

[00:19:50] Speaker 05:
Sky did not carry that burden as it offered to the trial court, only a conclusory statement that bifurcation would promote convenience and efficiency.

[00:19:59] Speaker 05:
On appeal, they made a prejudice argument, but that wasn't an argument that was before the trial court, so it did not abuse its discretion in ruling against bifurcation.

[00:20:12] Speaker 05:
on the emotional distress damages, Cunning did testify to pre-termination emotional distress, but pre-termination emotional distress was relevant to demonstrating that Cunning was vulnerable and susceptible to emotional distress, and that the termination exacerbated the pre-existing distress.

[00:20:35] Speaker 00:
But you agree that pre-termination distress was not compensable in this action, do you not?

[00:20:41] Speaker 00:
I do, but I don't agree that the jury awarded it, and Sky can only offer speculation that... Was it argued by the plaintiff that she should get damages pre-termination because she was terribly emotionally distressed?

[00:20:55] Speaker 05:
No, Your Honor, the plaintiff did point to her pre-termination emotional distress and then argued for emotional distress damages based on a permanent basis over a course of four years.

[00:21:11] Speaker 05:
And there was sufficient evidence to support the amount awarded based on the post-termination distress.

[00:21:19] Speaker 00:
That's a good argument.

[00:21:22] Speaker 05:
On the statute of limitations, in the proposed final pretrial conference order, Sky stated that it planned to pursue a statute of limitations defensive trial, but voluntarily chose not to do so and did not address it in the pre-verdict 50A motion, resulting in a complete waiver of the issue.

[00:21:43] Speaker 05:
For purely legal issues, a denial of summary judgment

[00:21:48] Speaker 05:
except for purely legal issues, denial of summary judgment can't be appealed after trial because the trial record supersedes the record on summary judgment.

[00:21:57] Speaker 05:
Here, acquittal tolling turned on.

[00:22:00] Speaker 00:
The record as to the statute of limitations being a state defense, or defense to the state action, was the same at motion of summary judgment as it was at trial.

[00:22:12] Speaker 00:
The record was identical, wasn't it?

[00:22:14] Speaker 00:
The issue was,

[00:22:16] Speaker 00:
had the statute of limitations run.

[00:22:21] Speaker 00:
Once the judge decides that the statute of limitations will not be allowed as a legal defense of the motion with summary judgment, why isn't that sufficiently reserved for trial?

[00:22:36] Speaker 05:
Because the judge denied their motion for summary judgment, it did not grant the motion brought by Ms.

[00:22:43] Speaker 05:
Cunning.

[00:22:44] Speaker 05:
So the court stated what the relevant standard was for summary judgment, that all reasonable inferences must be drawn in Ms.

[00:22:51] Speaker 05:
Cunning's favor, and then applied that standard and held that under that standard equitable tolling applied.

[00:22:58] Speaker 05:
So there was not a decision on his amendment of law.

[00:23:02] Speaker 00:
Sky did raise the state standard of summary judgment, the statute of limitations of the summary judgment on punitive damages, correct?

[00:23:17] Speaker 05:
Yeah, they brought up the, it was the Lower Protection Act, state law claim, statute of limitations.

[00:23:29] Speaker 05:
And while it's not necessary to reach the issue, the statute of limitations when civil penalties are not requested at trial would be three years, not one year.

[00:23:41] Speaker 05:
The court decided one year because before trial, Ms.

[00:23:46] Speaker 05:
Kenning was requesting statutory or civil penalties, but at trial did not request those.

[00:23:57] Speaker 05:
Issue of Avatar Dillon's testimony and invocation of the fifth.

[00:24:02] Speaker 05:
Sky argues that it preserved the issue in its response to the motion in lemonade number four, for that was a motion brought by Cunning, not by Sky, and it was a motion to permit the use of Avatar Dillon's deposition testimony and prohibited his live testimony.

[00:24:23] Speaker 05:
In its response, Skye advocated that AFDAR Dillon be brought in to testify live in person and objected to the relevance of certain questions asked at the deposition, which does not preserve objections to the testimony at trial.

[00:24:42] Speaker 05:
Sky cites to US versus Lloyd for the proposition that a general challenge to witnesses testimony preserves a challenge to their invocation of the Fifth Amendment, but quotes language from that case related to the application of criminal sentencing guidelines, not an evidentiary challenge.

[00:24:59] Speaker 05:
In our brief, we cite Drayton versus Scallon, that plain error review applies when a party raises a different objection to an evidentiary issue on appeal.

[00:25:11] Speaker 02:
And there- Council, let me take you back to Mr. Dillon, because I think this is an interesting part of the case.

[00:25:16] Speaker 02:
So the charges to which he pled guilty and as to which he was asked and declined on Fifth Amendment grounds

[00:25:27] Speaker 02:
How far back did those charges cover?

[00:25:31] Speaker 02:
So what he was pleading guilty to, in other words, what was the time scope of that conduct?

[00:25:36] Speaker 02:
And did it cover time when Cunning was working for Skye?

[00:25:40] Speaker 02:
It did, Your Honor.

[00:25:43] Speaker 02:
So the conduct for which he pled guilty was conduct that he carried on during the time that she was employed?

[00:25:53] Speaker 05:
It included, I believe it included 2018.

[00:25:56] Speaker 02:
The guilty plea comes in well after she's left the company, but the conduct for which she's convicted was contemporaneous with her employment.

[00:26:04] Speaker 02:
Correct, Your Honor.

[00:26:05] Speaker 02:
It overlapped with her employment.

[00:26:07] Speaker 02:
And did any of that, so far as we know, did any of that conduct have anything to do with the Canadian mafia, with Russians?

[00:26:14] Speaker 05:
No, the Canadian mafia and Russians was a different witness and not after Dylan.

[00:26:23] Speaker 02:
And did you ask, did you ask Judge Carter to compel Mr. Dillon to answer questions?

[00:26:28] Speaker 05:
No, neither side requested that, Your Honor.

[00:26:36] Speaker 02:
And you didn't ask for any limiting, for any explanatory jury instruction?

[00:26:42] Speaker 05:
Well, only the adverse inference instruction.

[00:26:45] Speaker 02:
That you could infer an adverse, an adverse instruction, an adverse information.

[00:26:50] Speaker 02:
But that would have covered everything that he was asked about, whether he had a medical license, where he vacationed in the fourth grade.

[00:26:58] Speaker 02:
I mean, it covered all kinds of stuff, some of which was relevant and some of which had nothing to do with anything.

[00:27:05] Speaker 05:
Yeah, I mean, certainly, if an adverse inference instruction had been issued, it should have been tailored.

[00:27:11] Speaker 05:
But it wasn't.

[00:27:12] Speaker 02:
Because Judge Baynes is right.

[00:27:13] Speaker 02:
He didn't answer anything other than, is your name?

[00:27:19] Speaker 02:
That's correct.

[00:27:19] Speaker 02:
Dylan.

[00:27:20] Speaker 05:
But at the same time, Skye did not request an instruction that the jury could not draw an adverse inference, which it could have done.

[00:27:31] Speaker 05:
In his reply brief, Skye argues that in SEC v. Jasper, the case did not address the admissibility of Fifth Amendment invocations, but in fact, at page 1126 of that decision, it does.

[00:27:46] Speaker 05:
And that court found, or this court, Ninth Circuit, found that invocations were admissible.

[00:27:52] Speaker 05:
It did not need to be scrutinized on a question-by-question basis, at least where there were no question-by-question objections.

[00:28:00] Speaker 05:
That court distinguished the Glanzer case.

[00:28:04] Speaker 05:
In Glanzer, the court found that the invocations needed to be made on a question by question basis, not that the admissibility needed to be ruled on question by question.

[00:28:18] Speaker 05:
We also cite Flores Blanco, in which this court found no error in the district court's failure to explicitly inquire into the defendant's reasons for invoking the Fifth Amendment.

[00:28:32] Speaker 05:
Sky points out that in that case, there were two hearings related to the witness invoking the Fifth Amendment, but neither of those hearings was about the propriety of the witness invoking the Fifth Amendment.

[00:28:46] Speaker 05:
And just as here,

[00:28:48] Speaker 05:
There were hearings about AFTAR taking the stand and pleading the fifth on the motion of limine and the motion for an adverse inference.

[00:28:59] Speaker 05:
So this court was aware of the basis for the Fifth Amendment invocations and the criminal conduct.

[00:29:07] Speaker 04:
Council, let me see.

[00:29:08] Speaker 04:
Are there any other questions?

[00:29:10] Speaker 04:
Any other questions?

[00:29:12] Speaker 04:
Very well.

[00:29:12] Speaker 04:
Thank you for your argument.

[00:29:13] Speaker 04:
Thank you, Your Honor.

[00:29:31] Speaker 01:
If I might address three points from my friend's argument.

[00:29:34] Speaker 01:
First, the very first lines of plaintiff's closing argument were, and this is at ER 1434.

[00:29:42] Speaker 01:
When I stood before you two weeks ago, I said that being a whistleblower can be very lonely, and this trial has proved that.

[00:29:48] Speaker 01:
This is a case about a small group of insiders, a tight-knit old boy network, comprised of Dylan's, Avatar Puneet, Jim Heppel, and Dr. Brian Murphy.

[00:29:56] Speaker 01:
They terminated, and skipping the next line, they terminated her because she was a thorn in their side and she was pressing sensitive issues.

[00:30:03] Speaker 01:
They then went on to invoke all of the allegations against Avatar Dillon and others.

[00:30:08] Speaker 01:
So I think, simply put, this was front and center.

[00:30:11] Speaker 01:
It was a central part of plaintiff's case from the beginning through the trial to the very end.

[00:30:17] Speaker 02:
Second- But a central part as to what?

[00:30:20] Speaker 02:
Again, her complaint is,

[00:30:22] Speaker 02:
I didn't have any place I could go.

[00:30:24] Speaker 02:
I thought I saw wrongful behavior on the part of the CEO, and I've got a four-person board, including Mr. Aftar Dhillon as the chairman and his nephew, and there are rumors rampant that these guys are engaged in bad activities other places.

[00:30:42] Speaker 02:
There was no place for me to go and complain about the CEO's behavior.

[00:30:46] Speaker 01:
Then the purpose for which it should have come in, and which the jury should have been instructed as to, was that it was coming in only for her state of mind, not as proof of those bad acts, and certainly not as underlying proof of liability.

[00:30:55] Speaker 01:
Did you request an instruction on that?

[00:30:57] Speaker 01:
We did not, but we objected categorically to it, and we objected on 403 grounds.

[00:31:01] Speaker 01:
And we think that then in assessing the error and the scope of it, this court can look to the failure to provide any limits.

[00:31:07] Speaker 02:
If you've just raised a general grounds, it can't come in for anything, that doesn't feel terribly surgical.

[00:31:13] Speaker 02:
It doesn't feel terribly informative to the district court.

[00:31:16] Speaker 02:
If it's just we don't want Dylan in here, I can understand why you didn't want Dylan to testify.

[00:31:21] Speaker 02:
But to exclude it categorically feels a little bit blunt.

[00:31:29] Speaker 01:
But that doesn't warrant an equally blunt response on the court's part.

[00:31:32] Speaker 02:
But that's why I asked if you requested any kind of a limiting instruction, because that would have neutered some of the damage that was done.

[00:31:41] Speaker 01:
Well, interestingly, Your Honor, Ms.

[00:31:43] Speaker 01:
Cunning recognized the potential prejudice by requesting a limiting instruction in the motions in limine.

[00:31:49] Speaker 01:
And so we think that the issue is certainly in front of the court.

[00:31:52] Speaker 01:
We had absolutely raised the 403 issues.

[00:31:54] Speaker 02:
So are you now arguing that it was there for the district court not to grant her motion?

[00:31:59] Speaker 01:
We think that goes to whether the issue of whether there was a less prejudicial way to allow it in if the court considered it.

[00:32:06] Speaker 02:
It certainly might have helped Judge Carter if you had jumped in and said, we agree with Ms.

[00:32:11] Speaker 02:
Cunning on this point.

[00:32:12] Speaker 01:
That is possible, but we also think that the scope of the error was plain.

[00:32:15] Speaker 01:
And so raising it in this way was so prejudicial, particularly the way that it was brought in repeatedly, time and time again, and particularly when weighed against the weakness of her affirmative case.

[00:32:27] Speaker 04:
If I could... If you could summarize your last two points.

[00:32:30] Speaker 01:
Of course.

[00:32:31] Speaker 04:
Because you are out of time.

[00:32:33] Speaker 01:
Yes, I apologize, Your Honor.

[00:32:34] Speaker 01:
Very, very quickly, I just wanted to address the point about the emotional distress.

[00:32:38] Speaker 01:
And if I could refer this court to Paige

[00:32:42] Speaker 01:
1467 in the ER, to my colleague's point that it was not based on pre-termination emotional distress, said, Ms.

[00:32:51] Speaker 01:
Cunning testified that this distress started with that elevator comment back in December of 2018, so it's been going on for four years.

[00:32:58] Speaker 01:
The calculations that they then proposed were based on a four-year period that began long before her actual termination.

[00:33:06] Speaker 01:
And those calculations are proposed at ER 1470.

[00:33:11] Speaker 01:
And then finally, with respect to bifurcation, I'd simply note that we did not simply make a request.

[00:33:15] Speaker 01:
There also were reasons provided.

[00:33:17] Speaker 01:
That's at ER, I'm sorry, SER 196.

[00:33:21] Speaker 01:
We think any of these errors would warrant reversal.

[00:33:23] Speaker 01:
We think cumulatively they compel it.

[00:33:25] Speaker 01:
And with that, unless there are further questions, I'm happy to submit since I'm over time.

[00:33:28] Speaker 01:
Any other questions?

[00:33:29] Speaker 04:
No, thank you.

[00:33:30] Speaker 04:
Thank you very much.

[00:33:32] Speaker 04:
To both of you, the manner of

[00:33:36] Speaker 04:
Wendy Cunning versus Sky Bioscience will be submitted.