Hertzberg et al v. Abbott Laboratories et al

Filing 94

ORDER DENYING 59 AbbVie Inc.'s and Richard Gonzalez's Motion to Quash Trial Subpoena. Signed by Chief Judge Michael J. Reagan on 1/16/2018.(jmw)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
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)
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JANA HERTZBERG and
JOHN HERTZBERG, individually and )
as parents and guardians of J.T.H. and )
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J.N.H.,
)
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Plaintiffs,
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vs.
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ABBOTT LABORATORIES, INC., and )
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ABBVIE, INC.,
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Defendants.
IN RE DEPAKOTE:

Case No. 14-CV-1052-MJR-SCW
Case No. 12-CV-52-NJR-SCW
LEAD CONSOLIDATED CASE

ORDER
REAGAN, Chief District Judge:
Before the Court is AbbVie Inc.’s and Richard Gonzalez’s Motion to Quash Trial
Subpoena, filed on January 4, 2018. (Doc. 59). Plaintiffs filed a response in opposition to the
motion on January 11, 2018. (Doc. 89). AbbVie Inc. and Richard Gonzalez filed a reply on
January 16, 2018. (Doc. 93). On December 8, 2017, after the close of discovery, Plaintiffs
served a subpoena for Richard Gonzalez, AbbVie’s Chief Executive Officer and Board
Chairman, to appear at trial in this Depakote product liability case. (Doc. 59-2, p. 2).
Additionally, within the same subpoena, Plaintiffs seek the production of Mr. Gonzalez’s
personnel file for his tenure at Abbott Laboratories and AbbVie Inc. along with his current
Curriculum Vitae.1 Id.
AbbVie Inc. and Richard Gonzalez (but not Abbott Laboratories) move to quash the

1

  In 2013, Defendant Abbott Laboratories, Inc., split off part of its business, including the rights to
Depakote, into a separate publicly traded company, AbbVie, Inc. Accordingly, individuals filing claims
after 2013 have included both Abbott and AbbVie as defendants in the litigation. 

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notice, claiming inter alia, that Plaintiffs seek testimony from Mr. Gonzalez that would be
unfairly prejudicial and run afoul of FED. R. EVID. 403 and 404. No request for relief is made
under FED. R. CIV. P. 45.
In support of their subpoena, Plaintiffs claim Mr. Gonzalez committed resume fraud
by representing he earned a bachelor’s degree in biochemistry from The University of
Houston and a master’s degree in biochemistry for The University of Miami. (Doc. 89, p. 2).
There is no dispute that despite his representations, he does not hold either degree. Plaintiffs
further assert that after Abbott became aware of the misrepresentations, it continued to
perpetuate them to the public. Finally, Plaintiffs assert that Mr. Gonzalez was a member of
the Pharmaceutical Executive Management Committee, which they allege was directly
responsible for numerous strategic decisions impacting Depakote research, marking, and
labeling. (Doc. 89, pp. 10-12).
When asked the purpose of the proposed testimony, AbbVie Inc. and Mr. Gonzalez
were sent an explanation by Plaintiffs’ counsel that led them to conclude he was not going to
be asked about Depakote or any product liability issues. (Doc. 59, p. 1) (“Plaintiffs do not
even bother trying to claim that Mr. Gonzalez has any material, relevant information about
Depakote product liability issues – and he does not.”). This is an oversimplification of
Plaintiffs’ letter and inaccurate to the extent it claims the stated purpose of the testimony
completely excludes testimony about Depakote.
Plaintiffs’ twenty two page response (Doc. 89) with its 385 pages of supporting
documentation leaves no doubt “beating-up Mr. Gonzalez for resume fraud” is not the
primary reason they seek his testimony. If the Court believed that this was the sole

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motivation for the subpoena, it would be quashed summarily.2 Instead, Mr. Gonzalez may
provide relevant evidence under FED. R. EVID. 401, without violating the contours of Rules
403 and 404.
Since defendants rely upon evidentiary Rules 403 and 404 (and 401 without
specifically saying so), and not FED. R. CIV. P. 45 regarding subpoenas, the motion to quash is
really a motion to exclude testimony they deem irrelevant and/or overly prejudicial. As
such it seems prudent to look at the motion to quash in reality as a motion in limine.
The undersigned has the power to exclude evidence in limine only when it is clearly
inadmissible on all potential grounds. Cf. Luce v. United States, 469 U.S. 38, 41 n. 4, 105 S.Ct.
460, 463 n. 4, 83 L.Ed.2d 443 (1984) (federal district courts have authority to make in limine
rulings pursuant to their authority to manage trials). Unless evidence meets this high
standard, evidentiary rulings should be deferred until trial so that questions of foundation,
relevancy and potential prejudice may be resolved in proper context. See Middleby Corp. v.
Hussmann Corp., No. 90 C 2744, 1993 WL 151290, at *1 (N.D. Ill. May 7, 1993); see generally 21
Charles A. Wright & Kenneth W. Graham, Jr., Federal Practice and Procedure ¶¶ 5037, 5042
(1977 & Supp. 1993). At this stage of the case the court cannot find that Mr. Gonzalez’
testimony would be “clearly inadmissible” on all grounds.3
Denial of the motion does not necessarily mean that all evidence contemplated by the
Plaintiffs will be admitted at trial. Denial merely means that without the context of trial, the
Having been around the block a few times, I am also mindful that sometimes (unethically) parties abuse
process in an effort to coerce a settlement. I am confident such is not the case here. While I have not been
involved in settlement negotiations regarding this specific case, I know Abbot has taken a “no settlement”
posture in cases involving Depakote and allegations of cognitive injury. So plaintiffs are well aware that
forcing the appearance of Mr. Gonzalez serves no settlement function.
3
The Court believes this reserved approach is particularly appropriate given the significant deference
the Court of Appeals gives its determinations on motions in limine. See Aldridge v. Forest River, Inc., 635
F.3d 870, 875 (7th Cir. 2011) (“[T]he district court's decision [on a motion in limine] is to be overturned
only if no reasonable person would agree with the trial court's ruling.”).
2

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Court is unable to determine whether the evidence in question should be excluded or
admitted.
The proposed testimony of Mr. Gonzalez is uniquely appropriate for a
“wait-and-see” review by the Court. I want to see how the trial progresses, the positions
taken by the parties and where this proposed testimony fits—if at all. The course the
evidence takes during this anticipated two week trial may result in rulings which at first
blush appear to be contradictory or inconsistent. But changing evidence may require
changed rulings. Indeed, a district court may even adjust its disposition of a motion in limine
“during the course of a trial.” Farfaras v. Citizens Bank & Trust of Chicago, 433 F.3d 558, 565
(7th Cir.2006).
The only certainty in the Depakote mass action is that these cases provide unique
challenges requiring a patient thorough review of the issues. Ultimately, Mr. Gonzalez may
be required to testify in Plaintiffs’ case-in-chief, in rebuttal to Defendants’ case, in the
punitive damages phase if the case gets that far—or not at all. For planning purposes Mr.
Gonzalez should make himself available to testify In East St. Louis, IL in this case upon
twenty-four hours’ notice. AbbVie Inc.’s and Richard Gonzalez’s Motion to Quash Trial
Subpoena is DENIED at this time.
IT IS SO ORDERED.
DATED: January 16, 2018
s/ Michael J. Reagan
MICHAEL J. REAGAN
Chief Judge
United States District Court

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