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Parties often file motions in limine on fairly case-specific issues, building on the history of discovery and motions practice in the case.  Applying a ruling on in limines from one case to another can be a dicey proposition as potentially significant differences in the facts, law, claims and defenses asserted, and other rulings can

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We have no personal anecdote to share, no movie to discuss, no holiday theme to weave in, and no (self-described) clever theme for our post.  It is a beautiful fall day where we have a relative lull in our slate of depositions, briefs, and arguments, so we will get right to it.  Last month, we had trouble making sense of a long Daubert and summary judgment order in a metal-on-metal hip implant bellwether case.  This month, we think that the evidentiary rulings in the same case make more sense.  Christiansen v. Wright Med. Tech. Inc., MDL No. 2329, 1:13-cv-297-WSD, 2015 U.S. Dist. LEXIS 6704750 (N.D. Ga. Nov. 2, 2015).  Except for this:  neither side filed timely motions in limine, they submitted a joint “Position Statement” on evidentiary issues, and the court issued rulings complete with limiting instructions.  That was awfully generous of the court, as most judges will not rule on what evidence can come in absent a timely motion or objection.  It may be too simplistic to say that plaintiff lawyers in drug and device product liability cases prefer the rules of evidence to be fast and loose, allowing them to spin a narrative that riles up the baser instincts in the jury, whereas defense counsel in such cases prefer that evidence be focused on the issues that the jury will be asked to decide.  In any event, knowing what evidence will be coming in on what issues allows both sides to prepare their respective case so that the jury can hear something coherent.  The Federal Rules of Evidence give trial judges a fair amount of latitude to maximize the chance that the jury will understand the evidence presented and how it fits with what they are asked to decide.  The Christiansen rulings do a pretty good job of that.

In addition to what she could offer from her ten experts and apparently friendly implanting surgeon, plaintiff wanted to offer “fact” testimony from four other orthopedic surgeons who had not treated her and were not designated as experts.  We can think of three basic plausible ways, but maybe objectionable depending on the facts, that these non-treating surgeons could be fact witnesses:  1) they could have something to say about their personal involvement in designing the product at issue; 2) they could have some interaction with the manufacturer before the plaintiff’s implant that allegedly provided notice of the risk of the injury that plaintiff claims (“metallosis” per the prior decision); or 3) they could have done some study on the risks and/or benefits of the product that they will talk about.  No, plaintiff wanted them to talk about whether the product was defective under Utah’s consumer expectations test—with an orthopedic surgeon being the consumer for this prescription device—and what the manufacture told them about the device.

Continue Reading Evening Things Out Some With Trial Evidence Rulings In A Bellwether Case

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In tracking the progress of a case that produces multiple decisions, we sometimes feel like a distant relative getting intermittent updates of a child’s milestones.  As with a child, the milestones do not necessarily become more important and interesting. (Elementary school “graduation” does not eclipse starting school and not just because caps and gowns are absent.)  With Guenther v. Novartis Pharm. Corp., No. 6:08-cv-456-Orl-31DAB (M.D. Fla.), a case on remand from the Aredia/Zometa MDL, we have already posted three times this year on four separate decisions in the case.

Plaintiffs were not consolidated for trial, punitive damages were not available under New Jersey law, Dr. Parisian was limited in trying to make up new duties for drug companies, and the plaintiff was allowed to duck summary judgment on her warnings claims even though she lacked proximate cause evidence from her prescribing physician.  Some important and interesting issues, mostly decided correctly, with a notable exception. Now, as the case heads toward trial—which is undoubtedly an important and interesting event, but one unlikely to produce written decisions on which we would post—we return to Guenther for some rulings on motions in limine.  As we noted recently, pre-trial evidentiary rulings can seem, even at a quick glance, to be significant to the course of the coming trial and to involve recurring issues.  Others, like some photos of someone else’s kid that are sent with expectation of a positive response, clearly matter to the parties but are too fact-specific to matter to other cases.  The Guenther rulings are probably in the middle, yet unusual enough to draw our comment.

The plaintiff sought to preclude the defendant from offering two categories of evidence and argument relating to the drug’s benefit.  As with most in limine motions, the denial does not actually mean any evidence will end up being admitted at trial.  The proponent of the evidence will still need to weather potential form and foundation challenges, but may be most interested in getting to use the verbiage or make the arguments it wants during opening statement even if the actual evidence does not come in as hoped.

Continue Reading For Whom The Benefit Rolls (Into Evidence)

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One of the remand courts in the Aredia/Zometa litigation recently issued a decision on various motions in limine.  See Brown v. Novartis Pharmaceuticals Corp., 2012 U.S. Dist. LEXIS 104985 (E.D.N.C. July 27, 2012).  Here’s the rundown of the “good,” the “not-so-good,” and the “it depends.”
The good:
·                     Post-injury label changes: The court

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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 –

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We reported last week that Judge Anne Conway, who’s overseeing the Seroquel MDL, had granted summary judgment in favor of AstraZeneca in the bellwether cases involving the first two plaintiffs. She had not yet issued her written decision at that time.
She still hasn’t entered that written decision. (We just couldn’t leave you hanging there.)

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This is a practical – some would say, impractical – post. One of the blogging duo is currently involved in one of the more headache-inducing aspects of mass tort litigation, the process of putting together motions in limine. So he’s got a few gripes.

The other half has been there and done that. In