Dopson-Troutt et al v. Novartis Pharmaceuticals Corporation

Filing 183

ORDER granting in part, denying in part, and deferring in part 144 Plaintiffs' Omnibus Motion in Limine. Signed by Judge Susan C Bucklew on 9/20/2013. (GMS)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
RUTH DOPSON-TROUTT and
FRANK TROUTT,
Plaintiffs,
v.

Case No.: 8:06-CV-1708-T-24-EAJ

NOVARTIS PHARMACEUTICALS
CORPORATION,
Defendant.
__________________________________________/
ORDER
This cause comes before the Court on the Omnibus Motion in Limine filed by Plaintiffs
Ruth Dopson-Troutt and Frank Troutt.
Corporation opposes.

[Doc. 146].

[Doc. 144].

Defendant Novartis Pharmaceuticals

A hearing on the motion was held after the pretrial

conference on September 12, 2013.
I.

BACKGROUND FACTS
Plaintiff Ruth Dopson-Troutt was diagnosed with breast cancer, which later metastasized

to her hip and pelvic bones. Dr. Arthur Feldman, her oncologist, prescribed Aredia and Zometa,
which are bisphosphonate drugs that are produced, sold, and marketed by Defendant Novartis
Pharmaceuticals Corporation (“NPC”). From 1999 to 2005, Dopson-Troutt was infused with
Aredia and then Zometa, with her last Zometa infusion occurring on May 12, 2005. DopsonTroutt had her tooth extracted, after which she began experiencing jaw pain caused by
osteonecrosis of the jaw (“ONJ”).
In 2006, Dopson-Troutt and her husband brought this action against NPC, alleging that
its manufacturing, labeling, marketing, selling, advertising, and distributing of Aredia and

Zometa caused their injuries and that NPC failed to, inter alia, adequately warn of the risk of
ONJ. This action was transferred to a Multidistrict Litigation Court in the Middle District of
Tennessee for consolidated pretrial proceedings with other actions brought against NPC.
In 2012, the case was remanded back to this Court. Jury trial is set to begin on October
21, 2013. Plaintiffs’ remaining claims are: negligent failure to warn (count III), breach of
express warranty (count IV), and loss of consortium (count VI). [Docs. 1, 138].
II.

PLAINTIFFS’ OMNIBUS MOTION IN LIMINE
A.

Evidence of Zometa’s1 benefits

Plaintiffs seek to exclude NPC’s evidence regarding alleged off-label benefits of
Zometa—e.g., statements that the drug is a “cancer drug” or that the drug “extends life”—
beyond those approved by the FDA for inclusion on the drug’s label at the time Dopson-Troutt
was prescribed and used the drug.
Plaintiffs assert that Zometa’s only approved use at the time Dopson-Troutt was taking
the drug was to reduce her risk of a “skeletal-related event” (“SRE”), not to fight cancer.
Plaintiffs argue that attempts to equate Zometa to chemotherapy are appeals to jury sympathy
and are irrelevant, prejudicial, and wholly improper under Rules 401 and 403.
At this point, the Court is unable to determine whether Zometa’s off-label uses are
necessarily irrelevant, and it does not appear to be prejudicial to refer to a drug routinely
prescribed to cancer patients as a cancer drug. Further, it would be difficult to limit evidence of
benefits to what was known by Dr. Feldman at the time he prescribed Zometa to Plaintiff, given
that he does not remember her. Accordingly, Plaintiffs’ motion to limit the benefits of Zometa is
DENIED.

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Plaintiffs’ references to “Zometa” generally also includes Aredia for the purposes of their motion in limine.

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B.

Argument or evidence that Zometa does not cause ONJ

Plaintiffs seek to prohibit NPC from offering argument or evidence that Zometa does not
cause ONJ—i.e., prohibit NPC from contesting general causation. Plaintiffs assert that “in the
course of twelve trials to verdict Novartis has lost this issue in every case where the jury reached
it.” [Doc. 40 at 5]. Plaintiffs argue that NPC’s “position on general cause is usually opaque
when not disingenuous,” and that precluding NPC from contesting general causation would
prevent it from confusing the jury and extending the length of trial. [Id. at 7, 9].
NPC responds that it has won seven of the twelve trials since the consolidated litigation
and, of those, only one involved a special verdict form in which the jury found general causation.
NPC also contends that Plaintiffs’ motion is unworkable because general causation is a necessary
component of specific causation and inextricably tied up with whether NPC failed to warn at
various times in light of the evidence that existed.
Plaintiffs are seeking to estop NPC from relitigating an issue which NPC has previously
litigated and lost against other plaintiffs. However, the Court has broad discretion in determining
whether to apply offensive collateral estoppel. Parklane Hosiery Co., Inc. v. Shore, 439 U.S.
322, 331 (1979). The Court declines to exercise that discretion in this case.
At the outset, the Court disagrees with Plaintiffs’ assertion that the jury verdict forms
establish that NPC lost the general causation issue in every case. Further, the Court simply does
not have enough information about the facts of the other trials. It is not clear that the time
periods of the other twelve trials apply here.

Plaintiffs suggest that the time periods are

applicable because all of the trials were decided after 2009 and scientific knowledge on Zometa
has not changed since 2009. However, the scope of NPC’s duty to warn also depends on
whether NPC knew the risks of ONJ at the time Dopson-Troutt used Zometa. Plaintiffs fail to

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address whether, if Dopson-Troutt took the drug at different times than other plaintiffs, the
scientific knowledge relevant in Dopson-Troutt’s case and the other plaintiffs’ trials would be
different.
Further, NPC asserts that, even if the Court granted Plaintiffs’ motion, its defense will
continue to be that Zometa did not specifically cause Plaintiffs’ injury. NPC argues that because
general causation is a necessary component of specific causation (about which this Court, in
denying NPC’s summary judgment motion, determined that genuine issues of material fact
existed), prohibiting it from contesting general causation would be unworkable. Plaintiffs did
not address this in their motion or at oral argument. Given the common scientific principles
underlying general and specific causation, general causation would have to be explained to the
jury in order for the jury to understand and determine the parties’ arguments regarding specific
causation. Thus, prohibiting NPC from offering evidence on or contesting general causation
would confuse the jury, unfairly prejudice NPC, and save little time.
Thus, the risk of unfair prejudice and jury confusion outweigh the benefit of judicial
economy that might be derived from precluding NPC from arguing or offering evidence that
Zometa does not cause ONJ. Accordingly, Plaintiffs’ motion is DENIED.
C.

Offsetting damages with the benefits of Zometa

Plaintiffs seek to exclude evidence or argument suggesting that damages may be offset by
the benefits of Zometa. Plaintiffs argue that this is highly prejudicial and contrary to law.
Plaintiffs contend that Restatement (Second) of Torts § 920—which sets forth the
“benefit rule” of torts—is inapplicable. Section 920 states:
Where the defendant’s tortious conduct has caused harm to the plaintiff or to his
property and in so doing has conferred a special benefit to the interest of the
plaintiff that was harmed, the value of the benefit conferred is considered in
mitigation of damages, to the extent that this is equitable.

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Restatement (Second) of Torts, § 920 (1979). Plaintiffs argue that § 920 is inapplicable because
it is limited to when the tort confers a “special benefit” to the injured plaintiff and no such
benefit was conferred here. Further, even if Zometa conferred a special benefit, Plaintiffs argue
it is not the type of special benefit contemplated by § 920. Plaintiffs contend courts have only
applied § 920 to offset damages in “wrongful birth” cases—e.g., where a medical professional’s
negligence results in a baby born with a disease—and not in cases like this one.
In response, NPC contends that that the benefit rule is a mitigation of damages principle
that applies to tortious conduct, including the tort at issue in this case. Further, NPC points to the
Fussman case, where the court instructed the jury that the jury could consider the plaintiff’s
benefits when determining compensatory damages in another NPC case. [Doc. 146, Ex. 7].
Plaintiffs contend that Dopson-Troutt took Zometa to delay the risk of SRE. However, in
arguing that Zometa conferred no special benefit, Plaintiffs do not provide any authority showing
what constitutes a special benefit and why delaying the risk of SRE would not be a special
benefit. Nor have Plaintiffs provided any authority supporting their contention that § 920 must
be limited to wrongful birth cases. Although § 920 appears to arise most often in that category
of cases, one of the illustrations in § 920 “at least arguably resembles the situation” here:
A, a surgeon, without B’s consent, operates upon B's eye, causing B to lose the
sight in that eye. In an action of battery, it may be shown in mitigation of damages
for the loss of the eye that had A not operated, the sight of the other eye would
have been lost.
Guenther v. Novartis Pharm. Corp., 2013 WL 4456505, at *2-3 (M.D. Fla. Aug. 16, 2013)
(quoting Restatement (Second) of Torts § 920 ill. 2.)). Here, Plaintiffs contend that DopsonTroutt would not have taken the drug had she been adequately warned, and NPC “seeks to
introduce evidence of medical harm she would have suffered but for taking the drug.” Id. at *3.

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That seems reasonable to this Court. Accordingly, Plaintiffs’ motion to exclude the benefits of
Zometa is DENIED.
D.

Identify retained experts and limit each area of expertise to one expert

Plaintiffs request that NPC be barred from offering more than one retained expert
oncologist or oral surgeon at trial and be required to tell Plaintiffs who they intend to call three
weeks before trial. NPC responds that this request is moot, because NPC has already stated its
intention to limit its retained experts as requested and also agrees to exchange final witness lists
with Plaintiffs at least three weeks before trial. Accordingly Plaintiffs’ motion to limit experts is
GRANTED.
E.

Irrelevant and unduly prejudicial evidence
1.

Abortion

Plaintiffs seek to exclude evidence of Dopson-Troutt’s abortion. Plaintiffs argue that this
evidence is irrelevant and prejudicial. The Court agrees. Accordingly, Plaintiffs’ motion to
exclude abortion evidence is GRANTED.
2.

Attempted suicides

Plaintiffs seek to exclude evidence of Dopson-Troutt’s attempted suicides in 1963 and
1972. NPC responds that while it does not intend to use affirmatively any evidence relating to
her suicides, it may become relevant depending on how Plaintiffs’ damages are characterized.
For example, if Plaintiffs assert that ONJ caused Dopson-Troutt to struggle with depression, her
prior suicide attempts may become relevant.
The Court agrees with NPC that the evidence could be relevant and will defer ruling until
trial. However, before offering evidence relating to Dopson-Troutt’s attempted suicides, NPC

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should seek permission from the Court. Accordingly, the Court defers ruling on the exclusion of
attempted suicide evidence.
3.

Hearing voices in 1972

Plaintiffs seek to exclude evidence related to Dopson-Troutt’s testimony that she heard
voices telling her “nobody loves her” and “she should die” when questioned about her 1972
abortion. This evidence, like the abortion evidence, is irrelevant and prejudicial. Accordingly,
Plaintiffs’ motion is GRANTED.
4.

2008 Arrest

Plaintiffs seek to exclude evidence of Dopson-Troutt’s 2008 arrest as a co-conspirator in
the identify theft crime of her daughter, Gaye Michelle Perkins-Glascoe. Plaintiffs argue that
Dopson-Troutt was not convicted, and that the arrest is irrelevant to this case.

NPC responds

that Dopson-Troutt’s arrest bears on her character for truthfulness and should be allowed on
cross-examination under Rule 608(b).

The Court disagrees.

convicted, evidence of her arrest is not admissible.

If Dopson-Troutt was not

Accordingly, Plaintiffs’ motion is

GRANTED.
5.

Same-sex relationship

Plaintiffs seek to exclude evidence of Dopson-Troutt’s same-sex relationship from the
1970’s prior to her marriage to Mr. Troutt. Plaintiffs contend this is irrelevant, harassing, and
impermissible character evidence.

The Court agrees.

Accordingly, Plaintiffs’ motion is

GRANTED.
6.

Testimony of Gaye Michelle Perkins-Glascoe

Plaintiffs seek to exclude any testimony of Gaye Michelle Perkins-Glascoe, DopsonTroutt’s daughter, who NPC deposed as a person with knowledge of Plaintiffs’ injuries.

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Plaintiffs argue that Perkins-Glascoe should be barred from testifying, because: (1) she harbors
hostility towards her mother and their relationship has been contentious and estranged; (2) her
knowledge of Plaintiffs’ injuries is second-hand, gleaned from her brother; and (3) Plaintiffs do
not intend to call her to testify.
NPC responds that Perkins-Glascoe has first-hand knowledge of facts relevant to
Plaintiffs’ physical condition and loss of consortium claim. Specifically, Dopson-Troutt lived
with Perkins-Glascoe for a period of time in 2008, while Dopson-Troutt was allegedly suffering
from ONJ and experiencing marital problems.
The Court defers ruling on the admissibility of this evidence until trial. If PerkinsGlascoe has first-hand knowledge of relevant evidence, she can testify. Plaintiffs can crossexamine on her hostility.
III.

CONCLUSION
Accordingly, it is hereby ORDERED that Plaintiffs Ruth Dopson-Troutt and Frank

Troutt’s Omnibus Motion in Limine [Doc. 144] is GRANTED IN PART, DENIED IN PART,
AND DEFERRED IN PART as provided above.
DONE AND ORDERED at Tampa, Florida, this 20th day of September, 2013.

Copies To: Counsel of Record and Parties

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