Morey v. Mentor Corporation

Filing 179

ORDER Regarding Subsequent Remedial Measure. Ordered by Judge Clay D. Land on 06/12/2013. (CGC)

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IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF GEORGIA COLUMBUS DIVISION IN RE MENTOR CORP. OBTAPE * TRANSOBTURATOR SLING PRODUCTS * LIABILITY LITIGATION MDL Docket No. 2004 4:08-MD-2004 (CDL) Case No. 4:11-cv-5065 (I. Morey) * O R D E R Persistence aggressive is admirable stubbornness. regarding the from market the an admissibility is quality—until Plaintiff’s of counsel’s Defendant’s approaching the it removal latter. The becomes arguments of ObTape Court has clearly ruled during the first phase of this MDL proceeding that the removal of ObTape from the market is a subsequent remedial measure for purposes of Federal Rule of Evidence 407. 2010 Order, ECF No. 341 in 4:08-md-2004. that ruling’s applicability pretrial conference. ECF No. 109. to this May 20, The Court confirmed specific case at the Pretrial Conference Hr’g Tr. 140:15-23, The Court did leave open the possibility that such evidence could be admitted if Defendant opened the door. Id. It is this sliver of hope that persistent counsel latches onto in support of his argument that the evidence should now be admitted. Counsel argues that Defendant has created the impression with the jury that the FDA has approved this product, has the authority to remove it from the market, and has allowed it to remain on the market to this day. argument. The evidence regarding The Court rejects this FDA clearance of ObTape pursuant to the 510(k) preclearance process focused on clearing ObTape for States. sale No when it specific was first evidence introduced was in presented the that United the FDA continued to monitor it and determined that it should remain on the market. Moreover, the Court gave a limiting instruction to the jury describing the 510(k) clearance process, specifically explaining that determination such that the clearance product by was the safe FDA and was not effective, a but instead was a finding that ObTape was substantially equivalent to another product that was already on the market. Defendant has not yet opened the door for the admissibility of the removal of ObTape from the market. The Court also rejects counsel’s argument that the withdrawal of ObTape from the market should be admitted for punitive damages purposes. Federal Rule of Evidence 407 specifically prevents the introduction of subsequent remedial measures to prove “negligence,” “culpable conduct,” “a defect in a product or instruction.” its design,” or Fed. R. Evid. 407. 2 “a need for warning or Accordingly, it cannot be admitted to show that Defendant’s “culpable conduct” authorizes punitive damages.1 IT IS SO ORDERED, this 12th day of June, 2013. S/Clay D. Land CLAY D. LAND UNITED STATES DISTRICT JUDGE 1 Although it may be a bit unorthodox to enter evidentiary rulings in writing during a jury trial, the Court finds it necessary here given the Court’s apparent inability to make its rulings on these issues clear orally and given the likelihood that these issues may recur during other trials in this MDL proceeding. 3

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