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This post is from the non-Dechert side of the blog

Not long ago, one of our co-bloggers fielded some correspondence that, distilled from its abundant rhetoric, seemed to criticize a blog post for its defense-leaning bias. Given this, we hasten to reiterate, before we begin today’s post, that this is a defense blog.  We are overjoyed when a court or regulatory body does something that makes sense from a defense perspective and pads the arsenal we can deploy in defending our clients and/or that rebukes the sloppy and self-interested lawyering we encounter on the plaintiffs’ side of mass tort litigation.  Unapologetically, we proclaim that the “score” in today’s opinion, setting forth decisions on five of the parties’ motions in limine, is Defendant 4, Plaintiff 1.  Yes, we are simplistic enough to be pleased by this breakdown. But it gets even better upon examination of the holdings.  The case is Africano v. Atrium Medical Corporation, 2021 WL 4477867 (N.D. Ill. Sept. 30, 2021), a hernia mesh case in which the plaintiff claimed that he was injured by mesh that allegedly was not properly sterilized.

Defendant’s Motions in Limine

          Motion No. 1

The defendant moved to exclude evidence related to a consent decree between the defendant and the federal government, shutting down one of the defendant’s manufacturing facilities until it was in compliance with FDCA manufacturing regulations.  The plaintiff sought to admit the complaint and the consent decree.   He argued that the complaint fell within the “public records” exception to the hearsay rule, admitting a “record or statement of a public office” if it sets out, in a civil case, “factual findings from a legally authorized investigation” and the “opponent does not show that the source of information or other circumstances indicate a lack of trustworthiness.”  Africano, 2021 WL 4477867 at *2, citing Fed. R. Evid. 803(8).  But, the court held, a complaint “obviously” contains “mere allegations, not factual findings,” and is not admissible under the public records exception.  With respect to the consent decree, the plaintiff argued that it constituted a “statement of a party opponent” under Fed. R. Evid. 801(d)(2).  The court disagreed, holding that a consent decree was “a judicial act,” and that court rulings were not “statements of a party.”  The court emphasized that civil judgments were hearsay as to the facts underlying them and were not “usable as evidence” of those facts, and that consent orders were “considered settlements,” and inadmissible, under Fed. R. Evid. 408, to prove the truth of the matters asserted in them or to impeach a witness’s credibility.”  Id. (citations omitted).   Motion GRANTED.

          Motion No. 3.

The defendant moved to exclude evidence related to a 2017 conviction entered by an Italian court against the defendant and its former president.  The plaintiff argued that he could use the evidence for impeachment purposes.  But the Italian appellate court overturned the conviction in 2020, and the court emphasized that, “once a conviction has been overturned, it cannot be used to impeach the accused.”  Id. at *3 (citations omitted).  Nor was the evidence admissible, as the plaintiff argued, under Fed. R. Evid. 405(b), which admits “relevant, specific instances of [a] person’s conduct” when the person’s “character or character trait is an essential element of a . . . claim or defense.”  Id.   Neither the defendant’s character nor the character of its former president was an essential element of the claims or defenses in the case, and, in any event, the conviction was overturned and therefore irrelevant.   Motion GRANTED.

          Motion No. 5.

The defendant moved to exclude financial information related to its foreign parent corporation.   The court held, “. . . [E]vidence associated with the financial status of the Defendant’s parent corporation is irrelevant where, as here, the parent is not a named party, the parent did not participate in the conduct giving rise to Plaintiff’s claims, and Plaintiff has not demonstrated that the corporate veil should be pierced.”   Id. (citations omitted).  The court also excluded evidence of compensation paid to the defendant’s former president.  The plaintiff argued that the evidence was relevant to demonstrate “the importance of [the former president’s] position and “his motivation to keep his high-paying job,” but it was undisputed that the former president had left the company . . . three years before his deposition and six years before trial,” so evidence of his prior compensation was irrelevant for the stated purposes.  Motion GRANTED.

Plaintiff’s Motions in Limine

`           Motion No. 1.

The plaintiff moved to exclude the defendants’ disclosures of its non-retained experts, arguing that the disclosures were untimely under an order issued by the magistrate judge.  The court held that the plaintiff misinterpreted the magistrate judge’s order, which addressed only the exchange of expert reports and not the disclosure of non-retained experts, who were not required to prepare reports pursuant to Fed. R. Civ. P. 26.  The defendant’s disclosure of its non-retained experts was timely under Fed. R. Civ. P. 26(a)(2)(C), so the motion was DENIED.

          Motion No. 2

Finally, the plaintiff moved to exclude any report or testimony of a consultant the defendant had hired as a sterilization consultant after it received a warning letter from the FDA.  While the defendant had not named the consultant as a witness, it sought to introduce three letters from the consultant, explaining the revalidation of the defendant’s sterilization process, which the defendant included in correspondence with the FDA.  The defendant argued that the letters were admissible under the “business records” exception to the hearsay rule, which permits admission of records “kept in the course of a regularly conducted business activity if making the records is a regular practice of the business activity, so long as neither the source of information nor the method or circumstances of preparation indicate a lack of trustworthiness.”  Id. at *5 (internal punctuation and citations omitted).  The defendant submitted a business records affidavit from the consultant, but the court held that the certification alone was insufficient – the court still was required to ensure that the documents were “trustworthy” under Fed. R. Evid. 803(6).  Id. (citations omitted).  The court held that the consultant’s letters lacked trustworthiness because the defendant hired him to look into its sterilization practices and prepare the letters after it knew of the FDA’s concerns; in other words, for the purpose of defending against the government’s accusations, and because the consultant may have had “an incentive to result positive results for Defendant.”  Id. at *6.  As such, the court held, the circumstances “indicate[d] a lack of routineness to the documents and raise[d] . . . trustworthiness concerns . . . .”  Id., citing Fed. R. Evid. 803(6) advisory committee note (“Absence of routineness raises lack of motivation to be accurate.”) (Additional citations omitted).  Motion GRANTED.

Another of the defendant’s motions was granted by agreement, and the court reserved ruling on the remaining motions.  A nice “score,” to be sure, but also a nice set of well-reasoned rulings –even the one in favor of the plaintiff.   We will keep you posted on additional developments in this case.  In the meantime, enjoy the beautiful fall weather, and stay safe.