Bayes et al v. Biomet, Inc. et al

Filing 290

MEMORANDUM AND ORDER: Plaintiffs and Biomet have each submitted objections to the opposing partys opening statement visuals. Docs. 277, 278. The Court addresses these objections below. SEE ORDER FOR DETAILS. Signed by District Judge Stephen R. Clark on 10/1/20. (JAB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
MARY BAYES and PHILIP BAYES,
Plaintiff(s),
vs.
BIOMET, INC., et al.,
Defendant(s).

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Case No. 4:13-cv-00800-SRC

Memorandum and Order
Plaintiffs and Biomet have each submitted objections to the opposing party’s opening
statement visuals. Docs. 277, 278. The Court addresses these objections below.
I.

Biomet’s Objections to Plaintiffs’ Opening Statement Visuals
A.

Plaintiffs’ Slide No. 1 – Biomet objects that this slide is misleading and will

confuse the jury. The Court finds Biomet has opened the door to this evidence by offering Mary
Bayes’s Facebook post attributing her injuries to Dr. Martin. See Doc. 266 at 43:11-16. The
Court overrules Biomet’s Objection to Plaintiffs’ Slide No. 1.
B.

Plaintiffs’ Slide No. 7 – Biomet objects to this slide because it quotes a document

not yet admitted into evidence. The Court reserves ruling on this objection. Plaintiffs must be
prepared to make an offer of proof as to the admissibility of the underlying document when
Court convenes at 8:00 a.m. on October 5, 2020.
C.

Plaintiffs’ Slides Nos. 14 and 30 – Biomet objects to these slides because they

reference the FDA clearance/approval process. Because the Court has excluded any argument,
comment, or reference to the FDA clearance/approval process or requirements in this case (see
Doc. 288), the Court sustains Biomet’s objections to these slides.

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D.

Plaintiffs’ Slide No. 38 – Biomet objects to this slide because it references a

Biomet marketing document. The Court overrules Biomet’s objections to this slide. The Court
has determined that Biomet’s marketing materials are admissible to the extent relevant to
punitive damages. Doc. 266 at 38:8-16.
II.

Plaintiffs’ Objections to Biomet’s Opening Statement Visuals
A.

Biomet’s Slide No. 25 – Plaintiffs’ object to this slide as “incomplete (and

therefore misleading and argumentative).” Doc. 277. The Court overrules Plaintiffs’ objection.
Plaintiffs cite no authority for a requirement of “completeness” in opening statements.
B.

Biomet’s Slides Nos. 26, 27, and 30 – Plaintiffs’ object to each of these slides

because they show documents not yet admitted into evidence: Mary’s X-rays, Mary’s Facebook
post, and Biomet’s surgical technique for the M2a-Magnum. The Court overrules Plaintiffs’
objections to these slides. The Court has provisionally ruled that the Facebook post and surgical
technique are admissible. Doc. 266 at 43:11-16; 46:1-2. The Court finds the X-rays are also
likely to be admissible.
C.

Biomet’s Slide No. 32 – Plaintiffs object to this slide because it depicts an

anatomical recreation of Mary Bayes’s hips created using CT scans not admitted into evidence.
Biomet argues that it intends to use the depiction in its opening statement for demonstrative
purposes only. The Court grants Plaintiffs’ objection to this slide in part, as follows: Biomet
shall strike from the slide the text “based on Mrs. Bayes’ CT scans”.
D.

Biomet’s Slide No. 18 – Plaintiffs apparently objected to this slide, but neither the

basis for the objection nor the slide are before the Court. See Doc. 287-1. The parties must be
prepared to address this objection when Court convenes at 8:00 a.m. on October 5, 2020.

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The Court cautions the parties not to construe permission to refer to particular evidence
in opening statements as implying that the evidence will be admitted at trial. Further, the Court’s
motion in limine rulings as to the admissibility of particular evidence are provisional only.

Dated: October 1, 2020.

STEPHEN R. CLARK
UNITED STATES DISTRICT JUDGE

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