Laforet-Neer v. Bayer Healthcare Pharmaceuticals, Inc. et al

Filing 56

ORDER regarding motions in limine. This Order resolves the motions in limine pending at Doc. 21 through Doc. 51. Accordingly, the Court Directs the Clerk of the Court to Terminate the motions pending at Doc. 21 through Doc. 51. Signed by Chief Judge David R. Herndon on 12/22/2011. (Attachments: # 1 Exhibit Exhibit A)(dsw)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF ILLINOIS
___________________________________________
IN RE: YASMIN AND YAZ (DROSPIRENONE) )
MARKETING, SALES PRACTICES AND
)
PMF PRODUCTS LIABILITY LITIGATION
)
)
___________________________________________

3:09-md-2100-DRHMDL 2100

This Document Relates to:
Kerry Sims v. Bayer HealthCare Pharmaceuticals, et al.,
Case No. 3:09-cv-10012-DRH-PMF
Patti Bradish v. Bayer HealthCare Pharmaceuticals, et al.,
Case No. 3:09-cv-20021-DRH-PMF1
Tracy Laforet-Neer v. Bayer HealthCare Pharmaceuticals, et al.,
Case No. 3:10-cv-10223-DRH-PMF2

THE PARTIES JOINT STIPULATION REGARDING MOTIONS IN LIMINE
Plaintiff Kerry Sims (“Plaintiff”) and Defendants Bayer Corporation,
Bayer HealthCare LLC, Bayer HealthCare Pharmaceuticals Inc., and Bayer
Pharma AG (collectively, “Defendants” or “Bayer”) submit this joint stipulation
with respect to the admissibility of certain evidence and argument at trial relating

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Bayer’s motions in limine numbers 5 (Doc. 115); 14 (Doc. 122); 15 (Doc. 126); 16 (Doc. 127); 18 (Doc. 133); 19
(Doc. 139); and 36 (Doc. 129) relate only to the Sims case. All of plaintiff’s motions in limine relate only to the
Sims case.
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Bayer’s motions in limine numbers 5 (Doc. 115); 14 (Doc. 122); 15 (Doc. 126); 16 (Doc. 127); 18 (Doc. 133); 19
(Doc. 139); and 36 (Doc. 129) relate only to the Sims case. All of plaintiff’s motions in limine relate only to the
Sims case.

to motions in limine made by the parties. This stipulation and agreement is
limited to the following:
I.

PLAINTIFF’S MOTIONS IN LIMINE.
The parties agree and stipulate as follows with respect to the following

subparts of Plaintiff’s Omnibus Motion in Limine To Exclude Certain Subjects
from Evidence at Trial (Plaintiff’s Motion in Limine No. 1):
A.

Subpart 11 -- Financial status or resources, of any of Plaintiff’s
attorney’s or their law firms, or any of those attorneys’ other
business or cases.
The parties agree and stipulate that neither party shall seek to
introduce evidence or argument about the financial status or
resources of the parties’ lawyers or their law firms or any of those
attorneys’ other businesses or cases.

B.

Subpart 24 – Evidence, testimony, inference, or document that
bolsters the unchallenged character (e.g., honest) or traits (e.g.,
generous) of the Defendants’ current or former employees,
managers, consultants, experts, agents or fiduciaries
preemptively.
The parties agree and stipulate that that neither party shall seek to
introduce evidence to bolster unchallenged character or unchallenged
traits.

C.

Subpart 27 - State warning defect or failure-to-warn laws pressure
manufacturers to add unsubstantiated, false, or invalid warnings
to avoid lawsuits.
The parties agree and stipulate that Defendants shall not seek to
introduce evidence or argument, before the jury, that State warning

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defect or failure to warn laws pressure manufacturers to add
unsubstantiated, false or invalid warnings. Bayer reserves the right
to advance such legal arguments and to present such evidence to the
Court, outside the presence of the jury, through motions, arguments
or otherwise.
D.

Subpart 28 - State tort law undercuts the FDA’s mission to
provide only scientifically valid warnings.
The parties agree and stipulate that Defendants shall not seek to
introduce evidence or argument, before the jury, that State tort law
undercuts the FDA’s mission to provide only scientifically valid
warnings. Bayer reserves the right to advance such legal arguments
and to present such evidence to the Court, outside the presence of
the jury, through motions, arguments or otherwise.

E.

Subpart 30 - State products liability laws frustrate the FDA’s
protective regime.
The parties agree and stipulate that Defendants shall not seek to
introduce evidence or argument, before the jury, that State products
liability laws frustrate the FDA’s protective regime. Bayer reserves
the right to advance such legal arguments and to present such
evidence to the Court, outside the presence of the jury, through
motions, arguments or otherwise.

F.

Subpart 31 - Defendants should not be exposed to fifty-one
separate tort-law regimes.

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The parties agree and stipulate that Defendants shall not seek to
introduce evidence or argument, before the jury, that Bayer should
not be exposed to fifty-one separate tort-law regimes. Bayer reserves
the right to advance such legal arguments and to present such
evidence to the Court, outside the presence of the jury, through
motions, arguments or otherwise.
G.

Subpart 32 - State laws must be preempted to protect the public
from recklessly warning of unsubstantiated associations between
drugs and health risks.
The parties agree and stipulate that Defendants shall not seek to
introduce evidence or argument, before the jury, that State laws must
be preempted to protect the public from recklessly warning of
unsubstantiated associations between drugs and health risks. Bayer
reserves the right to advance such legal arguments and to present
such evidence to the Court, outside the presence of the jury, through
motions, arguments or otherwise.

H.

Subpart 33 - The Court has any particular view of the evidence in

this case.
The parties agree and stipulate that that neither party shall seek to
introduce evidence or argue that the Court has a particular view of
any of the evidence in this case.
I.

With regard to the following Plaintiff’s Motions in Limine, the parties
agree that they are unopposed and should be granted: Plaintiff’s

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Motion in Limine No. 1 (Omnibus Motion) sub-parts 3, 4, 5, 10, 12,
14, 18.

II.

BAYER’S MOTIONS IN LIMINE.
The parties agree and stipulate as follows with respect to the following

Motions in Limine filed by Bayer.
A.

Bayer’s Motion in Limine No. 24 - Exclude Evidence and
Argument About Assertions of Attorney-Client Privilege.
The parties agree and stipulate that neither party shall seek to
introduce evidence or argument to the jury about a party’s assertions
of attorney-client privilege. This agreement and stipulation is not
intended to prohibit either party, outside the presence of the jury,
from arguing or asserting a challenge to a claim of privilege with
regard to any document or seeking reconsideration of a prior
determination by the Court that a document is, or is not, protected
by an applicable privilege.

B.

Bayer’s Motion in Limine No. 25 – To Exclude Argument About
Bayer’s Lawyers At Trial.
The parties agree and stipulate that neither will make any
disparaging arguments or statements about opposing counsel,
however, simply referring to counsel or referring to or commenting
on a prior argument or statement by counsel shall not be considered
disparagement.

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C.

Bayer’s Motion in Limine No 31 - Exclude Evidence and
Argument Of Inappropriate Personal Conduct By a Former Bayer
Employee.
The parties agree and stipulate that this motion should be denied as
moot. The parties have now designated deposition testimony for the
upcoming trial for Mr. Frick and neither party has designated
deposition testimony for Mr. Frick (or from any other witness)
regarding the incident of inappropriate personal conduct.

D.

Bayer’s Motion in Limine No. 37 - Exclude Argument That
Compensatory Damages Should Be Used to Punish Defendants
The parties agree and stipulate that Plaintiff will not argue to the jury
that compensatory damages should be used to punish defendants.
The parties’ recognize that the Court has already ruled on the issue
of the ability of Plaintiff to seek certain compensatory damages for
future injury in this case and nothing in this agreement seeks to
modify that decision.

E.

Bayer’s Motion in Limine No. 38 - Exclude Evidence and
Argument Regarding Promises to Give Damages Awarded to
Charity.
The parties agree and stipulate that Plaintiff will not present evidence
or argument that Plaintiff intends or promises to give any damages
award (or portion thereof) to charity.

F.

With regard to the following Defendants’ Motions in Limine, the
parties agree that they are unopposed and should be granted:
Defendants’ Motion in Limine Nos. 34, 39.
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G.

Defendants have withdrawn their Motion in Limine No. 17 as moot.

Dated: December 21, 2011
By: /s/ Roger C. Denton
Roger Denton
[e-mail]
Schlichter Bogard & Denton LLP
100 South Fourth Street, Suite 900
St. Louis, MO 63102
[phone]
Plaintiffs’ Liaison Counsel
By: /s/ John E. Galvin
John E. Galvin
[e-mail]
Fox Galvin, LLC
One South Memorial Drive, 12th Floor
St. Louis, MO 63102
(314) 588-700
Defendants’ Co-Liaison Counsel

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