Filed 2/25/20 Ischemia Research and Education Foundation v. Pfizer Inc. CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

ISCHEMIA RESEARCH AND EDUCATION FOUNDATION,

Plaintiff and Appellant,

v.

PFIZER INC., et al.,

Defendants and Respondents.

H045046

(Santa Clara County

Super. Ct. No. 1-04-CV-026653)

In 2004, appellant Ischemia Research and Education Foundation (IREF), a self-described “California non-profit public benefit corporation whose purpose is to reduce heart attack, stroke, and death in high-risk patients,” brought a trade secret misappropriation action against respondent Pfizer, Inc. (Pfizer) and IREF’s former employee, Dr. Ping Hsu (Hsu). IREF alleged that Pfizer and Hsu had misappropriated three of its trade secret databases storing valuable medical data. In 2008, a jury returned a special verdict in favor of IREF, finding that both Hsu and Pfizer had misappropriated IREF’s trade secret databases, and awarded IREF damages of $38 million. The trial court subsequently granted Pfizer’s motion for a new trial on liability and Hsu’s motion for a new trial on damages. IREF appealed to this court, which affirmed the new trial order in an unpublished opinion.

The second jury trial, which is the subject of the current appeal, proceeded only against Pfizer and was bifurcated into liability and damages phases. In 2015, the jury in the liability phase found that Pfizer was liable for misappropriation by its agent, Hsu, of IREF’s trade secrets from one of the trade secret databases, as reflected in seven computer files identified by the jury in a special verdict form. In 2016, the jury in the damages phase found that Pfizer had been unjustly enriched by $165,000 due to Hsu’s trade secret misappropriation. In July 2017, the trial court entered judgment in IREF’s favor in this amount.

IREF appeals the July 2017 judgment, contending that it should be reversed because IREF was denied a trial of its trade secret misappropriation claim as pleaded in its complaint. According to IREF, its trade secret misappropriation claim was unfairly limited in the second jury trial to a number of computer files misappropriated by Hsu instead of encompassing all three databases. IREF argues that the judgment is reversible per se due to this structural error. IREF similarly contends that the trial court committed prejudicial error in limiting the scope of its misappropriation claim with respect to motions in limine, jury instructions, special verdict forms, and evidentiary rulings. For the reasons stated below, we find no merit in IREF’s contentions and affirm the judgment.

I. FACTS AND PROCEDURAL BACKGROUND

This court’s opinion in Ischemia Research I provides a comprehensive discussion of both the factual background of IREF’s suit against Pfizer and Hsu and the proceedings in the first trial. (Ischemia Research I, supra.) We restate here only those facts pertinent to the issues in the instant appeal.

A. The Complaint

In 2004, IREF and Dr. Dennis T. Mangano, IREF’s founder and chief executive officer, filed a complaint naming Pfizer, a pharmaceutical company, and Hsu, IREF’s former senior scientific officer, as defendants who allegedly conspired to misappropriate IREF’s trade secrets in connection with Pfizer’s attempt to secure regulatory approval for pharmaceutical drugs it had developed. IREF asserted that its trade secrets were proprietary databases containing patient medical data known as the EPI-l database, the EPI-2 database, and the Acadesine database.

In 1999, Pfizer entered into a clinical research agreement with IREF to design and execute a clinical study to study the safety of two of Pfizer’s drugs, valdecoxib and parecoxib, for the treatment of acute pain in patients undergoing coronary artery bypass graft surgery (CABG). The study was known as “CABG I.” The clinical research agreement for CABG I included “ ‘productive access’ ” to IREF’s EPI-1 database, meaning that IREF would analyze the EPI-1 database to answer questions posed by Pfizer, but Pfizer would not have direct access to the database. IREF staff, including Hsu, worked with Pfizer to design and implement the CABG I study, using data from both the EPI-1 database and incomplete, unvalidated data from the EPI-2 database.

In 2001, Pfizer approached IREF regarding participation in a follow-on clinical study, which was known as “CABG II.” According to IREF, the services offered by IREF in its proposed clinical research agreement for CABG II included productive access to both the EPI-1 database and the now-validated EPI-2 database. However, Pfizer did not sign IREF’s proposed clinical research agreement.

In 2002, Pfizer asked Hsu to serve on the independent data monitoring committee for CABG II. Although Hsu was its employee, IREF approved Hsu serving on the independent data monitoring committee on the conditions that he separate his work on the committee from his duties at IREF and not use IREF’s intellectual property. IREF alleged in its complaint that Pfizer retained Hsu on the independent data monitoring committee for the purpose of providing Pfizer with productive access to IREF’s trade secret databases, including the EPI-2 and Acadesine databases, for the CABG II study.

IREF further alleged that Pfizer intended to avoid paying for productive access to IREF’s trade secret databases. According to IREF, “Hsu constantly provided data and input to [Pfizer], which he had gleaned from the Trade Secret Databases and which he was in no way authorized to provide to Pfizer.” IREF discovered Hsu’s unauthorized access to IREF’s trade secret databases in 2004 and terminated Hsu’s employment.

Based on these and other allegations, IREF asserted causes of action for (1) statutory trade secret misappropriation (Civ. Code, § 3426 et seq.) ; (2) conversion; (3) common law misappropriation; and (4) breach of fiduciary duty as to Hsu. IREF sought injunctive relief, restitution, “revenues that IREF and Mangano would have received but for Defendants’ wrongful acts,” compensatory damages, punitive damages, and attorney fees.

IREF also filed a supplemental statement pursuant to former Code of Civil Procedure section 2019, subdivision (d), which identified the misappropriated trade secrets as “three comprehensive and strictly defined databases (the ‘Trade Secret Databases,’ collectively consisting of the EPI-1 Trade Secret Database, the EPI-2 Trade Secret Database, and the Acadesine Trade Secret Database).” The supplemental statement also specified in detail the claimed trade secret misappropriation by Hsu, who allegedly “accessed and analyzed the confidential patient data in [IREF’s] Trade Secret Databases for the benefit of Pfizer on several occasions.”

B. The First Jury Trial and Subsequent Appeal

In 2008, the matter proceeded to a jury trial against defendants Pfizer and Hsu on IREF’s claim of trade secret misappropriation. In the course of pretrial discovery, a dispute arose concerning the sufficiency of IREF’s responses to defendant Hsu’s special interrogatories. The trial court ordered IREF to provide further responses to certain of Hsu’s special interrogatories. Hsu was unsatisfied with IREF’s further responses and moved to compel compliance with the trial court’s order and for sanctions. On October 18, 2007, the trial court ruled that IREF had failed to comply with its prior order and ordered both issue and evidentiary sanctions against IREF (hereafter, the 2007 discovery order).

The 2007 discovery order states in relevant part: “For failure to comply with the order of August 23, 2007, the court imposes the following sanctions: [¶] . . . 2. IREF is precluded from introducing evidence that Dr. Ping Hsu, or anyone else acting at his direction, accessed the EPI-1, EPI-2 or Acadesine databases other than at IREF’s direction during the period January 1, 2002, through February 2004, except for those files listed in Exhibit 3 to the deposition of Dr. Dennis Mangano and those identified in the declaration of Dr. Sam Teichman.” (Italics added.) The order indicates that “Exhibit 3 to [the] deposition of Dr. Dennis Mangano” lists 159 computer files, and the declaration of Dr. Teichman lists 2 computer files. IREF has not sought appellate review of the 2007 discovery order.

The first jury trial began in November 2008. Following the presentation of evidence, the jury returned a special verdict in favor of IREF, finding that both Hsu and Pfizer had misappropriated IREF’s trade secret databases in February 2002 and awarding IREF damages of $38 million. The jury also found that the misappropriation by Pfizer and Hsu was willful and malicious. The trial court denied IREF’s motion for an award of exemplary damages.

The judgment, entered on May 5, 2009, provided that IREF would recover “jointly and severally” from Pfizer and Hsu more than $38 million plus prejudgment interest of more than $19 million. After judgment was entered, each party filed a motion for a new trial. Following briefing and argument, the trial court issued an order vacating the judgment and granting (1) Pfizer’s motion for a new trial on liability; (2) Hsu’s motion for a new trial on damages; and (3) IREF’s motion for a new trial on exemplary damages.

In so ruling, the trial court found that although there was sufficient evidence that Hsu had misappropriated IREF’s trade secrets, there was insufficient evidence that Pfizer knew or had reason to know that Hsu had done so, and insufficient evidence that Pfizer had acquired or used any IREF trade secrets knowing or having reason to know that the information was acquired through improper means. The trial court also found that the damages award of $38 million was excessive because in light of all the evidence it was “unreasonable to conclude that the loss to IREF from any misappropriation in this case would exceed the range of $1 million to $3 million.”

IREF appealed from the trial court’s order granting the new trial motions and from the judgment “insofar as the Judgment fails to award exemplary damages.” Pfizer filed a cross-appeal from the trial court’s new trial order and the judgment, and Hsu filed a cross-appeal from the trial court court’s order denying his motion for judgment notwithstanding the verdict and from the judgment.

In 2013, in Ischemia Research I, supra, this court affirmed the trial court’s order granting Pfizer’s motion for a new trial on liability and Hsu’s motion for a new trial on damages and determined that IREF’s motion for a new trial on exemplary damages was therefore moot. In light of this disposition, this court did not address Pfizer’s and Hsu’s cross-appeals.

C. The Second Jury Trial—Liability Phase

In 2015, the matter proceeded to a second jury trial against Pfizer on the cause of action for statutory trade secret misappropriation. (§ 3426 et seq.) The trial court ordered the trial to proceed in two phases, beginning with a trial on Pfizer’s liability, followed, if necessary, by a trial on damages. The jury trial on Pfizer’s liability began in September 2015. Hsu did not appear as a defendant or as a witness at the second trial, and the trial court gave a pretrial instruction to the jury that Hsu had already been determined to have misappropriated the IREF databases EPI-1, EPI-2, and Acadesine.

After the close of evidence, IREF’s trial counsel stated that it was not seeking to prove Pfizer’s liability “on conspiracy or direct liability” but instead was “pursuing the agency theory only.” The trial court accordingly instructed the jury that “IREF claims that Pfizer is responsible for Dr. Hsu’s misappropriation of IREF’s trade secrets because Dr. Hsu was acting as Pfizer’s agent within the scope of the agency when the misappropriation occurred. [¶] You must decide whether Pfizer is responsible for Dr. Hsu’s conduct. Pfizer is responsible if IREF proves the following: [¶] 1. That Dr. Hsu was Pfizer’s agent; and [¶] 2. That Dr. Hsu was acting within the scope of his authority when he misappropriated IREF’s databases.”

On October 29, 2015, the jury returned the following special verdict on liability:

“Question No. 1: Do you find that Dr. Ping Hsu was an agent of Pfizer in connection with any work for Pfizer or any work on the CABG-II Independent Data Monitoring Committee? [¶] [Jury Answer:] Yes

“Question No. 2: Do you find that Dr. Ping Hsu misappropriated any IREF trade secrets by using them in connection with any work for Pfizer or any work on the CABG-II Independent Data Monitoring Committee? [¶] [Jury Answer:] Yes

“Question No. 3: Do you find that Dr. Ping Hsu was acting within the scope of his agency with Pfizer when he misappropriated IREF’s trade secrets in connection with any work for Pfizer or any work on the CABG-II Independent Data Monitoring Committee? [¶] [Jury Answer:] Yes

“Question No. 4: If you answered ‘yes’ to Question No. 3, identify those files from Trial Exhibit 3 (attached) that you found reflect misappropriation of IREF trade secrets by Dr. Ping Hsu while acting within the scope of his agency with Pfizer: [¶] [Jury Answer: Files 3, 35, 74, 78, 89, 91, 96]

“Question No. 5: If you listed any files in response to Question No. 4, identify those files you listed in response to Question No. 4 by number, if any, that consist of information that was readily ascertainable to Pfizer by proper means: [Jury Answer:] None.”

The seven files listed by the jury in response to question No. 4 of the special verdict form were drawn solely from the EPI-2 database. The jury in the liability phase did not list any files in response to question No. 4 that were drawn from either the EPI-1 or Acadesine databases. After the verdict was read and the jurors polled, the trial court discharged the jury in the liability phase.

D. The Second Jury Trial—Damages Phase

In October 2016, the trial court empaneled another jury to consider the damages Pfizer owed IREF based on the trade secret misappropriation findings in the liability phase. Before the first witness testified, the trial court read to the jury an agreed-upon statement of the case, which stated in part: “In a prior proceeding, Dr. Hsu was found to have misappropriated seven computer files related to an IREF database by using the files in connection with work for Pfizer on the independent data monitoring committee. The database is called EPI-2; it contained historical medical information regarding heart bypass surgery patients, and it was a trade secret of IREF. [¶] There was a finding in a prior proceeding that Pfizer is legally responsible for the damages, if any, caused by Dr. Hsu’s misappropriation by use of the seven files while acting as an agent for Pfizer. There was no finding in the prior proceeding that Pfizer received or used any IREF trade secrets itself, or that Pfizer knew that or agreed with Dr. Hsu that he would use them. [¶] You will hear evidence about what the appropriate amount of damages might be. Accordingly, after the close of evidence, you will be asked whether IREF suffered monetary damages as a result of Dr. Hsu’s misappropriation by use of the seven files and, if so, in what amount.”

The jury in the damages phase heard from several damages experts. On November 10, 2016, the jury returned the following special verdict on damages:

“Question No. 1: Did IREF prove that Dr. Hsu’s misappropriation by use of the seven files caused unjust enrichment? [¶] [Jury Answer:] Yes

“Question No. 2: By what amount do you find that Dr. Hsu’s use of the seven files caused unjust enrichment? [¶] [Jury Answer:] $165,000

“Question No. 3: What were Pfizer’s expenses, including costs, that you find should be deducted from the unjust enrichment amount you found in response to question no. 2? [¶] [Jury Answer:] Zero

“Question No. 4: After subtracting the total expenses amount you found in response to question no. 3 from the unjust enrichment amount you found in response to question no. 2, what are the total unjust enrichment damages you award, if any? If the answer is a negative number, enter ‘zero.’ [¶] [Jury Answer:] $165,000.”

The trial court subsequently entered judgment on July 13, 2017, in favor of IREF, and IREF appealed. Pfizer has not filed a cross-appeal. Hsu is not a party to the current appeal.

II. DISCUSSION

IREF’s primary argument on appeal is that it was denied a trial of its trade secret misappropriation claim as pleaded in its complaint, which alleged that Pfizer and Hsu misappropriated IREF’s trade secret databases EPI-1, EPI-2, and Acadesine. According to IREF, its trade secret misappropriation claim was unfairly limited to the 159 computer files misappropriated by Hsu listed in the 2007 discovery order. IREF seeks reversal of the judgment with directions for a trial of its “actual case.”

A. Right to Trial on the Trade Secret Databases

IREF devotes the bulk of its briefing on appeal to its assertion that IREF was denied its right to trial on its misappropriation claim as asserted in the complaint. In support of its contention that it should have been allowed to argue that Pfizer violated its trade secrets by accessing the three trade secret databases as a whole rather than limiting its trade secrets to the list of files identified in the 2007 discovery order, IREF cites the language of its complaint, its pretrial designation of its trade secrets, the language of the 2007 discovery order, principles of judicial estoppel, and this court’s prior opinion in Ischemia Research I. IREF’s briefing focuses principally on what it describes as Pfizer’s reversal in the second trial of its decade-long position that IREF’s databases “were the crux of its substantive claim and the proper measure of its damages” to Pfizer’s “new position” in the second trial that the files listed in the 2007 discovery order were the “metes and bounds” of the trade secrets at issue. While IREF provides considerable detail on Pfizer’s alleged litigation conduct, IREF’s briefing in this court is much less clear in its identification of any prejudicial errors made by the trial court in connection with the second jury trial.

For its part, Pfizer in this court agrees with IREF—indeed, says it is “undisputed”—that “IREF’s asserted trade secrets were the databases.” Nevertheless, Pfizer maintains that the trial court in the second jury trial allowed IREF to make its case that Pfizer, through its agent Hsu, misappropriated trade secrets by accessing the three databases and contends that IREF has not identified any prejudicial error made by the trial court.

We therefore accept as undisputed on appeal that the trade secrets at issue in this matter are IREF’s three databases, not merely the files accessed by Hsu listed in the 2007 discovery order. We next turn to the specific rulings identified by IREF in its opening brief that it contends amounted to a denial of its “right to a trial” on trade secret misappropriation from the three databases. Specifically, we examine the trial court’s pretrial rulings on IREF’s May 2015 motion on the scope of the trial and Pfizer’s July 2015 motion in limine on the 2007 discovery order. We also consider the special verdict form and jury instructions given in the liability phase, as well as the trial court’s response to a jury question submitted in the liability phase. We then examine certain jury instructions and the special verdict form given in the damages phase. Finally, we address miscellaneous rulings made by the trial court that IREF contends amount to structural error.

B. Trial Court Rulings Challenged by IREF

1. Pre-Trial Rulings
2.
a. Order Denying IREF’s May 2015 Motion on the Scope of Trial

In May 2015, IREF filed a pretrial motion “to confirm the scope of the re-trial.” In its memorandum of points and authorities, IREF argued that the “retrial” of Pfizer’s liability (1) should be “limited in scope to those issues identified by the Court as to which it believed there was insufficient evidence to support the jury’s prior verdict”; (2) the “previous orders and rulings made by the Court during or in connection with the prior trial with respect to evidentiary, procedural, in limine, and other issues pertaining to the conduct of the trial” should be adopted; and (3) the parties should be precluded “from filing a motion or otherwise raising any evidentiary, procedural, or limine point that already was litigated and resolved in the first trial.” Pfizer opposed IREF’s motion, arguing that its motion for new trial had been granted in full on all issues and noting this court affirmed the order granting the motion for new trial. Therefore, a limited retrial would be improper.

The trial court denied IREF’s motion, ruling that “[t]he effect of the order granting [a] new trial as to Pfizer is to leave [IREF] and Pfizer in the same position as if the case had never been tried as between them. [Citation.] As such, rulings made in connection with the prior trial are not binding and this Court is obligated to deliberate the merits of any given issue concerning the conduct of trial.”

On appeal, IREF asserts that it was denied its right to trial on the databases because its motion to confirm the scope of retrial argued that the three databases were the misappropriated trade secrets; Pfizer opposed the motion on the ground that only the 159 computer files were the misappropriated trade secrets; and the trial court “endorsed” Pfizer’s position when it denied IREF’s motion.

Pfizer acknowledges that IREF’s motion to confirm the scope of retrial included IREF’s request that it be established in the second trial that IREF’s databases were trade secrets, that IREF owned them, and that Hsu had misappropriated them. In addition, Pfizer did argue in the trial court that, as a consequence of the 2007 discovery order, IREF could only “assert liability based on acquisition or use of information contained in 161 specific computer files.” However, Pfizer points out that, although the trial court denied IREF’s motion, the court did not foreclose the possibility that “ ‘findings made by the jury with respect to liability of defendant Ping Hsu may be imported into the trial on Pfizer’s liability.’ ” Furthermore, Pfizer contends that the trial court did not adopt Pfizer’s limited view of the relevant trade secrets because the court’s later instructions to the jury expressly stated that the EPI-1, EPI-2, and Acadesine databases were IREF’s trade secrets.

In reply, IREF argues that “at Pfizer’s urging, the trial court established the trade secret status of IREF’s databases only for background purposes. [Citation.] The Hsu files became the substance of IREF’s case and the measure of its damages.”

IREF’s pretrial motion on the scope of the retrial sought to shape the legal and factual issues to be presented during the trial and was, therefore, a motion in limine. (See Eckert v. Superior Court (1999) 69 Cal.App.4th 262, 266.) Where, as here, an order on a motion in limine does not have the effect of granting a motion for nonsuit or a motion for judgment on the pleadings, the standard of review is abuse of discretion. (Osborne v. Todd Farm Service (2016) 247 Cal.App.4th 43, 51 (Osborne).)

Having reviewed IREF’s motion to confirm the scope of retrial, Pfizer’s opposition, and the trial court’s July 6, 2015 order denying the motion, we are not persuaded by IREF’s argument that the trial court thereby erred. IREF’s motion sought an order limiting the scope of the second jury trial by adopting the rulings made in the first jury trial and precluding relitigation of evidentiary and other issues. The trial court denied the motion, ruling that it could not adopt prior rulings or preclude the parties from making certain motions or arguments since the order granting a new trial placed the parties in the same position as if the case had never been tried.

IREF does not challenge on appeal any aspect of the trial court’s order other than its implicit endorsement (in IREF’s reading) of Pfizer’s position that IREF’s trade secret misappropriation claim was limited to the computer files listed in the 2007 discovery order. However, we see no language in the July 6, 2015 order that could be construed as an order finding for purposes of trial that IREF’s three trade secret databases were not the subject of IREF’s trade secret misappropriation claim or that the 159 computer files were the only trade secrets at issue. Accordingly, we determine that IREF has not shown that the trial court abused its discretion in denying IREF’s motion to confirm the scope of retrial in the July 6, 2015 order.

b. Order on Pfizer’s Motion in Limine on the 2007 Discovery Order

Among other motions in limine, Pfizer filed motion in limine No. 7 regarding the 2007 discovery order. Pfizer argued that the 2007 discovery order precluded IREF from arguing or presenting any evidence of trade secret misappropriation other than the specific 162 files identified in the 2007 discovery order. In its opposition, IREF maintained that “[t]he trade secrets IREF claims were misappropriated are the EPI-1, EPI-2, and Acadesine databases. The 162 ‘files’ to which Pfizer makes reference are the analyses or queries of the trade secret databases by Dr. Hsu [for Pfizer] that IREF was able to identify and document.” The trial court ruled that the 2007 discovery order spoke for itself, was binding on the parties, and that any attempt by IREF “to go beyond what has been presented in [the 2007 discovery order] and in response to it . . . would be improper.”

IREF argues that Pfizer’s motion in limine No. 7 improperly sought an order limiting IREF’s trade secret misappropriation claim to the computer files identified in the 2007 discovery order, and the trial court’s September 4, 2015 order granting Pfizer’s motion in limine No. 7 showed that “[t]he court thus solidified its view that the Hsu files were the only proper subject of IREF’s claim.” Pfizer responds that the trial court in granting motion in limine No. 7 never made a ruling that the computer files listed in the 2007 discovery order were the trade secrets. Having reviewed the record, we agree.

In motion in limine No. 7, Pfizer expressly requested that the trial court grant the motion and preclude “IREF from arguing or presenting evidence of alleged misappropriation of any purported trade secrets other than the specific 162 files discussed in [the 2007 discover order].” The trial court granted the motion from the bench as follows: “Motion in limine number 7, I believe what we can all agree on here is that [the 2007 discovery order] does speak for itself. It’s specific; it’s binding; it’s still a part of this trial; it doesn’t go away.” The court also stated: “If there is an attempt by [IREF] to go beyond what has been presented in [the 2007 discovery order] and in response to it, then I believe that would be improper.”

The trial court therefore granted Pfizer’s motion in limine No. 7 on the ground that the evidentiary sanctions contained in the 2007 discovery order were still in effect. Those sanctions expressly precluded IREF from introducing any evidence that IREF’s three trade secret databases were misappropriated other than as demonstrated by the 159 computer files identified in Exhibit 3 to Dr. Mangano’s deposition and the two computer files identified in one other deposition. The trial court’s order in the second trial did nothing more than confirm the evidentiary sanctions imposed in the 2007 discovery order. Furthermore, the 2007 discovery order specifically describes the computer files accessed by Hsu as evidence of the misappropriation of trade secrets rather than the scope of the trade secrets themselves. Therefore, the trial court’s order granting motion in limine No. 7 to enforce the 2007 discovery order cannot be construed as a ruling that the computer files listed in the 2007 discovery order—rather than the three databases themselves—are IREF’s trade secrets. IREF has not shown that the trial court abused its discretion in granting Pfizer’s motion in limine No. 7. (See Osborne, supra, 247 Cal.App.4th at p. 51.)

3. Liability Phase
4.
a. Special Verdict Form and Jury Instructions

IREF contends that the special verdict form for the liability phase of the retrial improperly failed to mention IREF’s trade secret databases. In particular, IREF faults special verdict question No. 4, which states: “If you answered ‘yes’ to Question No.3, identify those files from Trial Exhibit 3 (attached) that you found reflect misappropriation of IREF trade secrets by Dr. Ping Hsu while acting within the scope of his agency with Pfizer:” The jurors answered “[Files] 3, 35, 74, 78, 89, 91, 96.” IREF further argues that this defect in the special verdict form was not cured by the jury instructions because the instructions “relegated the databases to background information and treated the Hsu files as the only subject of the trial.”

Pfizer contends IREF cannot prevail on its contention the judgment should be reversed based on the wording of the special verdict form for two independent reasons. First, IREF forfeited any objection on appeal to the purported error in question No. 4 by proposing a similar question for the special verdict form. Second, the jury instructions did not improperly limit IREF’s trade secret misappropriation claims but instead properly instructed that the jury could consider the 159 files on Hsu’s computer as possible evidence of misappropriation from the trade secret databases. In response to Pfizer’s forfeiture argument, IREF contends that its proposed verdict form focused on the “trade secret databases” instead of on the files accessed by Hsu.

“ ‘ “[A] special verdict is that by which the jury find the facts only, leaving the judgment to the Court. The special verdict must present the conclusions of fact as established by the evidence, and not the evidence to prove them; and those conclusions of fact must be so presented as that nothing shall remain to the Court but to draw from them conclusions of law.” (Code Civ. Proc., § 624.) [¶] . . . “A special verdict is ‘fatally defective’ if it does not allow the jury to resolve every controverted issue.” ’ ” (Trejo v. Johnson & Johnson (2017) 13 Cal.App.5th 110, 136.) The standard of review for analyzing the correctness of a special verdict is de novo. (Saxena v. Goffney (2008) 159 Cal. App.4th 316, 325.)

We need not address Pfizer’s contention of forfeiture, because we determine IREF has not shown error in the wording of the special verdict form. Having reviewed the special verdict form for the liability phase of the trial, and in particular question No. 4, we determine that the special verdict form properly allowed the jurors to resolve the controverted issue of whether any of the 159 computer files were evidence that Hsu had misappropriated IREF’s trade secret databases within the scope of his agency for Pfizer. Question No. 4 expressly asked the jurors to determine whether any of the 159 computer files “reflected misappropriation of IREF’s trade secrets.” The dictionary definition of “reflect” is “to make manifest or apparent: SHOW.” (Merriam-Webster Dict. Online (2020) [as of Feb. 24, 2020].) Therefore, question No. 4 plainly indicated that the jurors were to decide whether any of the 159 computer files were evidence of trade secret misappropriation because the files showed misappropriation. Contrary to IREF’s contention, the wording of question No. 4 did not indicate that the computer files themselves were the trade secrets.

In addition, the jury instructions given at the liability phase did not limit the trade secrets to the specific computer files accessed by Hsu. Instead, the instructions stated “you should accept as true that the [databases] are owned by IREF; that those databases are trade secrets; and that Dr. Ping Hsu misappropriated the databases.” IREF points to no language in the instructions that limited the jury’s considerations of the misappropriated trade secrets to the individual files accessed by Hsu.

Accordingly, we find no merit in IREF’s contention that the wording of the special verdict form in the liability phase of the trial was legally erroneous because it did not expressly mention IREF’s trade secret databases or because it relegated the databases to background information.

b. Response to Jury Question

Jurors in the liability phase of the trial submitted jury question No. 6. Although jury question No. 6 was not preserved in the record, the parties agree that the jurors requested software to open the JMP and SAS computer files that were in evidence.

After discussing jury question No. 6 with the parties, the trial court gave the following response to the jury: “The applications are not part of the evidence and you have not been given access to the software. Some files exist in document form.”

On appeal, IREF contends that the trial court’s refusal to provide the JMP and SAS software requested by the jury was prejudicial error, because the jury could not review the computer files that were in JMP and SAS format. IREF also argues that the trial court was required to provide the jury with the software necessary to review evidence in electronic format, pursuant to CACI No. 5021 and the jury’s right to review the evidence.

Pfizer responds that IREF forfeited this issue by failing to raise this issue during the trial proceedings. Having reviewed the record pertaining to jury question No. 6, we agree.

As a general rule, our appellate review is limited to those issues that the appellant has preserved for appeal. The California Supreme Court has instructed that “ ‘[a]n appellate court will ordinarily not consider procedural defects or erroneous rulings, in connection with relief sought or defenses asserted, where an objection could have been but was not presented to the lower court by some appropriate method . . . . The circumstances may involve such intentional acts or acquiescence as to be appropriately classified under the headings of estoppel or waiver . . . Often, however, the explanation is simply that it is unfair to the trial judge and to the adverse party to take advantage of an error on appeal when it could easily have been corrected at the trial.’ ” (Doers v. Golden Gate Bridge etc. Dist. (1979) 23 Cal.3d 180, 184–185, fn. 1.)

Thus, a party’s failure to object to a purported error in the superior court results in a forfeiture of that claim of error on appeal. (In re S.B. (2004) 32 Cal.4th 1287, 1293, fn. 2 (S.B.).) “As many courts have noted, any other rule would permit a party to trifle with the courts by standing silently by, thus permitting the proceedings to reach a conclusion in which the party could acquiesce if favorable and avoid if unfavorable.” (In re Urayna L. (1999) 75 Cal.App.4th 883, 886.)

With regard to jury question No. 6, the record shows that, after the trial court responded to the question and declined to provide the JMP and SAS software requested by the jury, IREF filed a memorandum of points and authorities objecting to the trial court’s response. However, the record before us does not reflect that IREF requested that the jury be given the JMP and SAS software or otherwise objected that the jury was not provided with the software. Instead, IREF requested in its memorandum of points and authorities that the trial court’s response be supplemented or clarified with the following further response: “You have requested the software applications necessary to view SAS or JMP files contained on the electronic exhibits admitted into evidence in this case. The Court will not permit you to have access to the SAS and JMP software required to manipulate these files. The SAS and JMP files, however, are part of the evidence in this case. During your deliberations, you should consider those files just as you would any other evidence admitted in the case. However, you must rely on your recollections of the SAS and JMP files as they were displayed and demonstrated to you in open court.”

As IREF never requested, in response to jury question No. 6 that the jury be provided with the JMP and SAS software and did not object to the trial court’s refusal to provide the software, we determine that IREF failed to preserve this issue for appeal. (See S.B., supra, 32 Cal.4th at p. 1293, fn. 2.) We decline IREF’s invitation to address the merits of the issue under CACI No. 5021 despite its failure to raise this issue in the trial court.

5. Damages Phase Rulings
6.
a. Jury Instructions

IREF contends that the jury instructions in the damages phase of the trial, including special instruction No. 1, CACI No. 4409, and CACI No. 4410, improperly instructed the jury that IREF’s trade secrets were limited to the seven computer files listed by the jury in the liability phase in the special verdict form. Pfizer counters that no error occurred because the jury instructions allowed the jury to select a damages award based on the value of full access to the EPI-2 database, instead of limiting the damage award to the value of the seven files alone. Pfizer notes that the jury instructions never instructed that the seven files were trade secrets, but they did instruct that the EPI-2 database was a trade secret. In addition, Pfizer argues that the damages instructions were correct because they defined the unjust enrichment as that caused by Dr Hsu’s use of the seven computer files, which was the benefit received by Pfizer. Alternatively, Pfizer argues that the purported errors were not prejudicial because the jury’s award of $165,000 was apparently based on the testimony that Duke University charged $165,000 for full productive access to its comparable database.

Special instruction No. 1 given to the jury in the damages phase states: “In this case, IREF has the burden of proving unjust enrichment caused by Dr. Hsu’s misappropriation by use of the seven files.” CACI No. 4409 states in part: “IREF is entitled to recover damages if the misappropriation by Dr. Hsu’s use of the seven files caused unjust enrichment.” CACI No. 4410 states: “There was unjust enrichment if Dr. Hsu’s misappropriation by use of the seven files caused a benefit that otherwise would not have achieved.”

i. Legal Standards

We observe that IREF did not object to the language of special instruction No. 1 Nevertheless, the California Supreme Court has stated that in general, “[a] party may, . . . challenge on appeal an erroneous instruction without objecting at trial.” (Lund v. San Joaquin Valley Railroad (2003) 31 Cal.4th 1, 7.) Therefore, IREF has not forfeited on appeal any legal error in the wording of the jury instructions given at the damages phase. We apply the de novo standard of review to determine the propriety of jury instructions. (Harb v. City of Bakersfield (2015) 233 Cal.App.4th 606, 617.)

Having carefully reviewed the record of the trial in the damages phase, we conclude that reversal of the judgment is unwarranted. Even if we accept IREF’s argument that the jury instructions erroneously referred to the unjust enrichment as that caused by Hsu’s misappropriation of the seven files, IREF cannot show a probability that the jury’s damages award was based on that error. We explain the basis of our conclusion below.

ii. Prejudice

Not all legal error in jury instructions requires reversal of the judgment. As this court recently summarized, “ ‘[I]nstructional error requires reversal only “ ‘where it seems probable’ that the error ‘prejudicially affected the verdict[.]’ ” [Citation.] The reviewing court should consider not only the nature of the error, “including its natural and probable effect on a party’s ability to place his full case before the jury,” but the likelihood of actual prejudice as reflected in the individual trial record, taking into account “(1) the state of the evidence, (2) the effect of other instructions, (3) the effect of counsel’s arguments, and (4) any indications by the jury itself that it was misled.” ’ ” (Guernsey v. City of Salinas (2018) 30 Cal.App.5th 269, 282 (Guernsey).)

To consider whether it seems probable that any error in the wording of the jury instructions affected the verdict, we review the evidence heard by the jury during the damages phase of the trial and the parties’ arguments to the jury based on that evidence.

iii. Testimony at the Damages Phase

Dr. Mangano, IREF’s founder, testified that IREF was created as a nonprofit, housing patient data collected by investigators in medical centers around the world. The EPI-2 database includes data collected from 5,065 patients in medical centers in 69 countries, with a total of 55 million pieces of patient data. Dr. Mangano has never seen a database with as much patient data as the EPI-2 database.

In 2001, Pfizer had discussions with IREF regarding IREF’s potential involvement in the CABG II clinical trial. In 2002, IREF sent Pfizer a proposed clinical research agreement for the CABG II clinical trial that stated a fee of $10,081 per patient for approximately 1,500 to 2,500 patients. Some of the services included in IREF’s proposed clinical research agreement were design, development, and supervision of the study, as well as productive access to IREF’s databases. Pfizer did not accept IREF’s proposed clinical research agreement due to the anticipated total cost of $15 million to $25 million, the inclusion of services that Pfizer did not need, and the lack of a cost breakdown for services.

IREF’s damages expert, Jimmy Joe Jackson, explained that the per patient fee of $10,081 that IREF charged in its proposed clinical research agreement for CABG II was a “bundled price.” The “bundled price” meant that Pfizer would have to pay the $10,081 per patient fee for all services in IREF’s proposed clinical research agreement in order to obtain productive access to the EPI-1 and EPI-2 databases. Jackson did not determine what portion of the $10,081 fee could be attributed solely to productive access to IREF’s databases.

To form his opinion of Pfizer’s unjust enrichment, which Jackson defined as the cost Pfizer had avoided by accessing IREF’s trade secrets through its agent Hsu, Jackson made several calculations. First, Jackson calculated that Pfizer would have had to pay $16 million for access to the EPI-2 database in the CABG II study, based on Pfizer’s enrollment of 1,636 patients in the clinical trial at the “bundled price” of $10,081 per patient. Next, Jackson subtracted $1,798,075, which was the amount Pfizer had paid Gentiae for its services on the CABG II clinical trial that overlapped the services in IREF’s proposed clinical research agreement. Jackson then added the $14,993,196 cost of a 10-month extension to IREF’s proposed clinical research agreement that, in his opinion, would have been needed to complete the CABG II clinical trial. Based on these calculations, Jackson concluded that the total amount that Pfizer was unjustly enriched by not having to pay IREF’s price for productive access to IREF’s databases for the CABG II clinical trial was $29,687,637.

Pfizer’s expert, Mark Newman, M.D., was a member of the independent data monitoring committee for the CABG II clinical trial and at the time of trial was the president of the physician practice at Duke University and Duke University Medical Center. Dr. Newman was familiar with the Duke University database that collects data from patients with cardiovascular disease and with IREF’s EPI-1 and EPI-2 databases. In 2002, the Duke University database had data from 40,000 coronary artery bypass graft patients treated at Duke. Dr. Newman believed that the Duke database and EPI-2 database are comparable.

Duke University entered into a sponsored research agreement with a company called BioMarin in connection with a drug study in 2002. The research agreement included a database access fee of $165,000 for creating a complete dataset and analysis of 8,000 patients in the Duke database. The fee of $165,000 was not based on the number of patients in the clinical trial. Newman testified that the $165,000 was the highest amount Duke had charged in the 2002 time frame for access to data in the database.

Pfizer’s second expert witness was Daniel Scharfstein, a professor of biostatistics at Johns Hopkins Bloomberg School of Public Health. Scharfstein examined the seven computer files that the jury in the liability phase found reflected misappropriation by Hsu as agent for Pfizer. He concluded that the seven computer files all related to the EPI-2 database and were of limited statistical value with regard to the “design, analysis, and monitoring of the CABG-II trial.” This conclusion was based on his findings that two files were program files (containing lines of software code), two files were datasets (containing small subsets of data from EPI-2), and three files were output files (showing the results of running a program on a dataset).

Pfizer’s third expert witness was Ori Ben-Yehuda, M.D., a cardiologist and executive director of a nonprofit cardiovascular clinical trial center. Dr. Ben-Yehuda reviewed the seven computer files to determine their clinical value in the context of the CABG II clinical trial and their monetary value. He noted that the contract between IREF and Pfizer for the CABG I clinical trial included a line item of $100,000 for productive access to IREF’s databases. In Dr. Ben-Yehuda’s opinion, his organization or another academic research organization would charge $50,000 for the content of the seven computer files. He did not know of any organization that priced database access based on the number of patients in a clinical trial. Dr. Ben-Yehuda was asked about the $165,000 fee in the BioMarin contract with Duke for access to the Duke database and analysis of data. Dr. Ben-Yehuda was familiar with the contract. He testified that it would have been “a lot more work” to do the analysis for the BioMarin project compared to the work required to produce the seven computer files.

Pfizer’s final expert trial witness on damages was George Strong, a financial and economic consultant. Strong testified that the price of access to the Duke database was comparable to the price for productive access to the EPI-2 database, but “there is no comparable to the seven files”; “nobody ever sold the seven files.” Regarding price, Strong concluded that the value of productive access (defined as allowing unlimited queries of a database) to the EPI-2 database was less than $200,000. Strong also concluded that the value of access to the limited information in the seven computer files was less than $100,000. Therefore, in his opinion the amount of Pfizer’s unjust enrichment due to Hsu’s use of the seven computer files was between $100,000 and $200,000.

The testimony of the parties’ expert witnesses gave the jury a choice of several calculations of Pfizer’s unjust enrichment, including Jackson’s opinion ($29,687,637 bundled price); Dr. Newman’s testimony ($165,000 for creating a complete dataset from the Duke database containing data from 8,000 patients); Dr. Ben-Yehuda’s opinion ($50,000 for the content of the seven computer files); and Strong’s opinion (less than $100,000 for the seven files and less than $200,000 for productive access to the database). Other than Dr. Newman or references to the contract about which Dr. Newman testified, none of the expert witnesses testified to an unjust enrichment value of $165,000.

In closing argument, the parties provided starkly different arguments with respect to the appropriate calculation of damages based upon Pfizer’s unjust enrichment. IREF argued the appropriate benchmark for unjust enrichment was the $29,687,637 figure cited by its expert Jackson, which was based on the 2002 proposal made by Dr. Mangano that equated to approximately $10,000 per patient to access the entire EPI-2 database. IREF specifically referred to the language of the jury instruction on unjust enrichment, including the reference to seven files, in arguing for this figure. In its closing argument, IREF described the benefit by which Pfizer was unjustly enriched as “access to the database.”

By contrast, Pfizer argued that “[t]his is a case about seven files” and noted that IREF did not base its calculation of unjust enrichment on the value of the seven files. Pfizer argued, in contrast to IREF’s position, that the jury should base its assessment of the benefit Pfizer received solely on the value of the seven files. Pfizer cited the testimony of Dr. Ben-Yehuda that the value of the files was $50,000 and argued that the price to access the Duke database, among others, provided reasonable alternative values for access to the database. Pfizer argued that the value of the seven files was less than $100,000 and “[i]f you’re talking about full productive access to the database, which is much more than we’re talking about, we’re talking about something south of $200,000.” When suggesting how the jury should fill out the dollar amounts if it determined that Pfizer had been unjustly enriched by Hsu’s misappropriation of the files, Pfizer stated “that dollar amount is no more than $100,000 for seven files. If you somehow decide that unlimited access is the amount, that’s no more than a couple hundred thousand dollars.”

In rebuttal, IREF argued to the jury that it should not just break out the value of the seven files and instead asserted the unjust enrichment was appropriately valued as the bundled price for IREF’s proposed clinical research agreement for CABG II.

iv. Analysis

We conclude that it is not probable that the alleged errors in the jury instructions “ ‘ “prejudicially affected the verdict.” ’ ” (Guernsey, supra, 30 Cal.App.5th at p. 282.) The agreed-upon statement of the case expressly informed the jurors that EPI-2 was a trade secret of IREF and the misappropriation was by Hsu’s use of the seven computer files from the EPI-2: “In a prior proceeding, Dr. Hsu was found to have misappropriated seven computer files related to an IREF database by using the files in connection with work for Pfizer on the independent data monitoring committee. The database is called EPI-2; it contained historical medical information regarding heart bypass surgery patients, and it was a trade secret of IREF. [¶] There was a finding in a prior proceeding that Pfizer is legally responsible for the damages, if any, caused by Dr. Hsu’s misappropriation by use of the seven files while acting as an agent for Pfizer.”

More significantly, there is no indication that the jury was misled by the purported errors in special instruction No. 1, CACI No. 4409, or CACI No. 4410. Based on the evidence heard by the jury and in light of the arguments made by counsel, it seems clear that even if we assume, as IREF contends, that the jury followed erroneous instructions, the jury rejected Pfizer’s contention that it should base the unjust enrichment figure solely on the value of the seven files.

The only witness who testified to the damages figure ultimately selected by the jury was Dr. Newman. He testified that Duke University entered into a sponsored research agreement with a company called BioMarin in connection with a drug study in 2002 that included a database access fee of $165,000 for creating a complete dataset and analysis of 8,000 patients in the Duke database. No other witness in the damages phase testified to any value equaling $165,000 from which the jury could have drawn its calculation of unjust enrichment. Multiple witnesses testified that the Duke database was comparable to the EPI-2 database, and the BioMarin contract was comparable to a contract for access to the EPI-2 database. Dr. Newman was never asked about the value of the seven files and only testified about general database access.

The damages verdict also shows that the jurors rejected all of the damage calculations based on the value of the seven files alone. Dr. Ben-Yehuda testified that the value of the seven computer files was only $50,000. Dr. Strong opined that the value of the seven files was less than $100,000. In addition, Dr. Ben-Yehuda testified that the amount of work to produce the report from the Duke database would have been “a lot more” than that required to create the seven computer files, further suggesting that the jury did not base its damages calculation on unjust enrichment attributable only to the seven computer files. Pfizer argued that, if the jury calculated unjust enrichment with respect to the seven files, it should award damages of less than $100,000. The jury, therefore, did not select any of the values of damages associated with a theory of unjust enrichment based solely on misappropriation of the seven files.

For these reasons, it is not reasonably probable that the jury award of $165,000 was based on a measure of unjust enrichment tied to the value of the seven files misappropriated by Hsu, rather than the misappropriation of access to its database as a whole. Accordingly, even assuming the instructional errors asserted by IREF, we determine that IREF has failed to demonstrate prejudice because it is not reasonably probable that the errors affected the verdict. (See Guernsey, supra, 30 Cal.App.5th at p. 282.)

b. Special Verdict Form

The questions in the special verdict form that IREF contends were improper are: “1. Did IREF prove that Dr. Hsu’s misappropriation by use of the seven files caused unjust enrichment? . . . [¶] . . . 2. By what amount do you find that Dr. Hsu’s use of the seven files caused unjust enrichment?”

We observe that IREF did not object, and in fact agreed, to the language of the special verdict form for the damages phase of the trial. Although there was significant back and forth between the parties and the court over the wording of the special verdict form, IREF did not object to its final wording. After the close of evidence, the trial court stated with regard to the special verdict form, “So, both parties agree to the special verdict form as currently constituted. And that will be provided to the jury later.”

As a general rule, “[f]ailure to object to a verdict before the discharge of a jury and to request clarification or further deliberation precludes a party from later questioning the validity of that verdict if the alleged defect was apparent at the time the verdict was rendered and could have been corrected.” (Henrioulle v. Marin Ventures, Inc. (1978) 20 Cal.3d 512, 521.) Therefore, we determine that IREF has forfeited the issue of the claimed defects in the special verdict form.

7. Structural Error
8.
IREF contends that the judgment must be reversed, even absent a showing of prejudice, because “IREF’s only cause of action was for misappropriation of its databases, not the Hsu files. Yet the trial court denied IREF its right to pursue that cause of action to a trial.”

We understand IREF to base its contention of structural error, in addition to the issues discussed above, on its argument that the trial court erroneously “cut off” Pfizer’s attempts to question the expert witnesses about IREF’s trade secret databases during the damages phase of the trial. This contention is not persuasive in light of the record, which shows that in the liability phase of the trial the jury found that only seven of the 159 computer files showed misappropriation by use of an IREF trade secret database, and the undisputed evidence in the damages phase that all seven files related to only one IREF database, EPI-2. Therefore, as Pfizer argues, the trial court did not abuse its discretion in precluding IREF from eliciting testimony about the value of all three of IREF’s databases in the damages phase of the trial. (See Shaw v. County of Santa Cruz (2008) 170 Cal.App.4th 229, 281 [evidentiary rulings are reviewed for abuse of discretion].)

This court recently addressed structural error in a civil case. “While the California Constitution generally prohibits a reviewing court from reversing a trial court order without a showing of prejudice (Cal. Const., art. VI, § 13), ‘even under article VI, section 13, an error is reversible per se when it constitutes “a ‘ “structural [defect] in the . . . trial mechanism” ’ that defies evaluation for harmlessness.” [Citations.]’ (F.P. v. Monier (2017) 3 Cal.5th 1099, 1108.) Such errors affect ‘the framework within which the trial proceeds, rather than simply an error in the trial process itself,’ thus affecting the entire conduct of the trial from beginning to end. [Citation.] Structural errors require per se reversal ‘because it cannot be fairly determined how a trial would have been resolved if the grave error had not occurred.’ [Citation.] . . . ‘ “In the civil context, structural error typically occurs when the trial court violates a party’s right to due process by denying the party a fair hearing. [Citation.] . . . “A structural error requires reversal without regard to the strength of the evidence or other circumstances.” ’ ” (Severson & Werson, P.C. v. Sepehry-Fard (2019) 37 Cal.App.5th 938, 950–951.)

Based on our review of the record, we are not persuaded by IREF’s contention that structural error occurred because it was not allowed to try its trade secret misappropriation case on its claim of misappropriation of all three trade secret databases (EPI-1, EPI-2, and Acadesine) as pleaded in its complaint. As we have discussed, the jury was instructed in both the liability phase and the damages phase of the second trial that IREF’s trade secrets were the databases. Moreover, the record reflects that IREF presented its claim of misappropriation of all three databases to the jury in the liability phase, through evidence, opening statement, and argument.

For example, IREF’s trial counsel stated in its opening statement: “The misappropriation that Dr. Hsu has been determined to have committed was tapping these databases over a lengthy period of time and when we had no contract to do that. So essentially Pfizer got what it was looking for but without a contract.” Dr. Mangano’s testimony also confirmed that the jury was instructed about misappropriation of the databases as a whole:

IREF’s COUNSEL: “Now, Dr. Mangano, you understand the court has instructed the jury that Dr. Hsu has already been determined to have misappropriated the IREF database; EPI-1, EPI-2 and Acadesine. [¶] Correct?”

DR. MANGANO: “Yes.”

Further, during discussion regarding the special verdict form in the liability phase, IREF’s trial counsel stated: “Our position is the trade secrets [are] the databases. The 159 files . . . are each the instances or evidence of the use of the databases. [¶] And so under our view, the jury should be asked, which or all or none or any of these . . . files reflect uses of the trial secret databases.” The trial court responded: “I agree with you. I think that the proper presentation is to present your question as whether what’s already been found to be a trade secret has in some way been misappropriated.”

Finally, IREF’s trial counsel’s closing argument indicates that the liability phase of the trial was conducted on IREF’s claim that its trade secrets were the three databases and the 159 computer files were the evidence of misappropriation of the databases. IREF’s trial counsel argued that “[y]ou know that IREF’s databases were misappropriated at least by Dr. Hsu. And [IREF] has been telling you how that happened . . . [¶] Now you’ve seen no evidence of any other way in which these databases were misappropriated except what [IREF] has come in and told you about which is Exhibit 3, in those files that are on Exhibit 3. . . . [¶] . . . [IREF’s] databases were misappropriated. Dr. Hsu, whom Pfizer hired, misappropriated them.”

As these examples from the record reflect, IREF was allowed to try its trade secret misappropriation case on its claim of misappropriation of all three trade secret databases (EPI-1, EPI-2, and Acadesine) as pleaded in its complaint. Accordingly, we determine that IREF has not demonstrated that the judgment should be reversed on the ground of structural error.

C. Conclusion

Having found no merit in IREF’s contentions of trial court error or structural error, we conclude that the judgment should be affirmed. Accordingly, we need not address IREF’s contentions regarding estoppel, the right to petition, law of the case, or instructions on remand.

III. DISPOSITION

The July 13, 2017 judgment is affirmed. Costs on appeal are awarded to Pfizer.

______________________________________

Danner, J.

WE CONCUR:

____________________________________

Elia, Acting, P.J.

____________________________________

Grover, J.

H045046

Ischemia Research and Education Foundation v. Pfizer Inc. et al.