Motions in limine were decided (or not) recently in Wolfe v. McNeil-PPC, Inc., 2012 U.S. Dist. Lexis 2160 (E.D. Pa. Jan. 9, 2012). The defendant did pretty well, so here’s a brief listing of the highlights (this isn’t everything, as some were case specific, not decided, moot, or simply boring).
- Adverse events – These probably aren’t admissible as they are double hearsay. Some earlier ones might be admissible as to notice, assuming that’s disputed. Experts can rely upon them, but not exclusively, and that doesn’t mean they get to talk about them to the jury (which will be decided at trial). Id. at *6-12.
- FDA citizen’s petition – Excluded. The petition was argumentative and didn’t show notice. The defendant also can’t use its outcome to argue that the FDA rejected the requested warnings. Id. at *14-16. A different (older) FDA petition could show notice, assuming that’s disputed. Id. at *17-19.
- Voluntary recalls unrelated to the plaintiff’s condition – Excluded as unduly prejudicial. Id. at *19-21.
- Foreign labeling – Generally excluded subject to plaintiff making specific arguments that a particular foreign label is somehow relevant, and not hearsay. Id. at *21-22.
- Various FDA documents – Generally excluded subject to plaintiff making specific arguments that a particular FDA document is somehow relevant, and not hearsay. Id. at *22.
- Marketing material/information not seen by plaintiff (this is an OTC case) – Generally excluded as prejudicial and irrelevant following dismissal of negligent marketing claim. Plaintiff may seek reconsideration as to specific items. Id. at *22-23.
- Other lawsuits/claims, etc. – Generally excluded as irrelevant. Plaintiff may argue at trial that specific items are relevant to notice. Id. at *24-25.
- Plaintiff continuing to use product after injury – Admissible. That the plaintiff continues to use the product with specific knowledge of its potential risk is relevant to whether any inadequate warning could have been causal. Id. at *31-32.
- Other drugs taken in close proximity – Admissible, as tending to prove alternative causes of the claimed injuries. Id. at *34-35.
One general comment on motions in limine. The court in Wolfe criticized both sides on a number of occasions for making overbroad and unsupported arguments. That’s a good thing to keep in mind when drafting or responding to motions in limine. We believe that anything worth doing is worth doing well. If counsel is serious about filing motions in limine, such motions should be both focused and supported with everything a court would need to rule. It’s not only a waste of time to file vague and generic motions in limine/responses, but such filings run the risk of losing credibility with the court.