Kammerer et al v. Wyeth et al
Filing
321
MEMORANDUM AND ORDER granting in part and denying in part DEFENDANTS' Motions in Limine 189 192 195 198 215 222 225 228 231 234 237 240 ; granting in part and denying in part PLAINTIFFS' Motions in Limine 201 203 205 209 211 213 216 217 249 . Ordered by Judge Joseph F. Bataillon. (SMS, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
SALLY KAMMERER and KARL
KAMMERER,
Plaintiffs,
v.
WYETH and WYETH
PHARMACEUTICALS,
Defendants.
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8:04CV196
MEMORANDUM AND ORDER
This matter is before the court on the defendants’ motions in limine Filing Nos. 189,
192, 195, 198, 215, 222, 225, 228, 231, 234, 237, and 240, and on the plaintiffs’ motions
in limine, Filing Nos. 201, 203, 205, 209, 211, 213, 216, 217, and 249.
Although the motion in limine is an important tool available to the trial judge to
ensure the expeditious and evenhanded management of the trial proceedings, performing
a gate-keeping function and sharpening the focus for later trial proceedings, some
evidentiary submissions, cannot be evaluated accurately or sufficiently by the trial judge
in such a procedural environment. Jonasson v. Lutheran Child and Family Servs., 115 F.3d
436, 440 (7th Cir. 1997). A motion in limine is appropriate for “evidentiary submissions that
clearly ought not be presented to the jury because they clearly would be inadmissable for
any purpose.” Id. In other instances, it is necessary to defer ruling until during trial, when
the trial judge can better estimate the impact of the evidence on the jury. Id. To the extent
that a party challenges the probative value of the evidence, an attack upon the probative
sufficiency of evidence relates not to admissibility but to the weight of the evidence and is
a matter for the trier of fact to resolve. United States v. Beasley, 102 F.3d 1440, 1451 (8th
Cir. 1996).
The court is unable to evaluate the relevance of some of the challenged evidence
in the context of a pretrial motion. The parties’ concerns may warrant a cautionary or
limiting instruction, but the court cannot determine the ambit of such an instruction at this
time. The court will admit the evidence at issue only on a showing that it is relevant to the
issues in the case, and only to the extent that the relevance of the evidence outweighs its
potential to cause prejudice or confusion under Fed. R. Evid. 403. The court finds many
of the motions can be adequately resolved at trial, either in a hearing immediately prior to
commencement of the trial, as an objection with a sidebar, or with a review of the evidence
outside the presence of the jury. Accordingly, the court finds as follows:
I. DEFENDANTS’ PENDING MOTIONS:
Filing No. 189 (Defendants’ Motion in Limine No. 1): to Exclude Marketing
Evidence That Has No Nexus to Plaintiff or Her Prescribers
The court finds this motion should be overruled at this time, without prejudice to its
reassertion via timely objection to the admissibility of such evidence at trial. The evidence
appears to be relevant to the plaintiff’s theories regarding the duty of care and to causation.
Filing No. 192 (Defendants’ Motion in Limine No. 2) to Bar Argument and
Evidence about Alleged “Ghostwriting”
The court finds there is no basis to exclude evidence of Wyeth-supported,
ghostwritten literature that was relied upon by experts in this case. Further, there is
evidence that the plaintiff’s physicians also relied on the literature. Accordingly, the court
finds the motion should be overruled.
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Filing No. 195 (Defendants’ Motion in Limine No. 3): to Bar Argument and
Evidence about the History and Events Leading to Wyeth’s Inclusion of an
Endometrial Cancer Warning in the Premarin Label
The court finds the motion should be overruled at this time, without prejudice to
reassertion. See Scroggin v. Wyeth, 586 F.3d 547, 554–55 (8th Cir. 2009), cert. denied,
130 S. Ct. 3467 (March 4, 2009). The evidence of a link between hormone therapy and
endometrial cancer is historical backdrop and may be relevant to the issues of duty of care
and notice.
Filing No. 198 (Defendants’ Motion in Limine No. 4): to Bar Testimony and Call
Notes of Wyeth Sales Representatives Who Did Not Call on Plaintiff’s Prescribers
The court finds the motion should be sustained in part. Evidence of Wyeth’s
communications to physicians in general appears relevant to the issues of duty and
proximate causation. The plaintiff’s prescribing physicians have testified that they were
briefed by Wyeth representatives. However, call notes for specific calls other than those
to the plaintiff’s prescribers are not relevant.
Filing No. 215 (Defendants’ Motion in Limine No. 5) to Exclude “Causality
Assessments”
The court finds this motion should be overruled. Internal causality assessments may
be relevant to issues of notice.
Filing No. 222 (Defendants’ Motion in Limine No. 7): to Exclude Evidence of
Other Hormone Therapy Claims
The court finds this motion should be denied as moot. The plaintiffs agree that both
sides should be precluded from presenting the results of other hormone therapy cases.
Testimony with respect to expert compensation or presented in rebuttal may be permitted
on a proper showing of foundation and relevance.
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Filing No. 225 (Defendants’ Motion in Limine No. 8): to Exclude IMS Data
The court finds this motion should be overruled at this time, without prejudice to
reassertion. The evidence appears to be relevant to issues in the case.
Filing No. 228 (Defendants’ Motion in Limine No. 9): to Bar Evidence,
Argument, and Expert Opinions Concerning the Number of Women Whose Breast
Cancer Was Purportedly Caused by Hormone Therapy
The court finds the motion should be denied with respect to any epidemiological
evidence in peer-reviewed journals that was relied on by the plaintiff’s experts. Subject to
a proper showing of foundation and relevance, the evidence may be admissible to show
general causation and/or negligence.
Filing No. 231 (Defendants’ Motion in Limine No. 10): to Bar Reference to
Warnings that Post-date Plaintiff’s Last Prescription for Hormone Therapy
This motion raises the same issues as the plaintiffs’ motion in limine No. 1, Filing No.
201. In addition to challenging the relevance of the evidence, defendants argue that
warnings are inadmissible as subsequent remedial measures under Fed. R. Evid. 407. The
court is unable to evaluate this evidence in the context of a motion in limine. Accordingly,
the court finds the motion should be denied at this time, without prejudice to reassertion at
trial.
Filing No. 234 (Defendants’ Motion in Limine No. 11): to Preclude Evidence,
Argument, and Testimony That Wyeth Failed to Properly Test
The court finds this motion should be denied for the reasons stated in the court’s
ruling on the parties’ Daubert motions with respect to the testimony of Drs. Blume, Parisian,
and Austin. See Filing No. 291.
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Filing No. 237 (Defendants’ Motion in Limine No. 12): Objecting to Plaintiffs’
Use of Expert Witness Trial and Deposition Testimony
The court is advised that the plaintiffs have withdrawn their designations for Drs.
Austin, Bloom, and Maloney. The court is further advised that the testimony of Dr. Colditz
is subject to a global agreement that prior deposition testimony is considered preserved for
trial. The plaintiffs also advise that Dr. Anderson–Fowler is expected to testify in person,
unless she becomes unavailable between now and the time of trial. Further, the plaintiffs
do not expect to call Drs. Julie Spencer or Timothy Kingston or Ms. Beth Stawniak and the
availability or unavailability of those witnesses is not known.
The plaintiffs have
provisionally withdrawn the designation of those witnesses. Accordingly, the court finds this
motion in limine should be denied as moot, without prejudice to reassertion should
circumstances change.
Filing No. 240 (Defendants’ Motion in Limine No. 6) (Omnibus Motion) to
Preclude the Following at Trial:
•
Evidence or comment relating to defendants’ profit margins
The court finds this motion should be overruled at this time. The evidence may be
relevant to issues of motive, state of mind, and ability to conduct testing. Although punitive
damages are not at issue in this case, the evidence may be relevant to issues of
reasonableness, negligence and failure to warn.
•
Evidence or comment relating to defendants’ wealth
The court finds the motion should be sustained in part. Wyeth’s overall net worth
is not relevant because punitive damages are not at issue in this case. The motion is
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overruled with respect to individual employee compensation and to compensation of
employee experts which is relevant to show motive, bias, and credibility.
•
Evidence of the presence or absence of a corporate representative at
trial
The court finds this motion is premature. Accordingly, the court will deny the motion,
without prejudice to reassertion at trial, if necessary.
•
Evidence of alleged “fraud” on the FDA
The court finds this motion should be overruled at this time. Any evidence that
Wyeth may have intentionally or knowingly misled the FDA would be relevant to the issue
of the reasonableness of Wyeth’s conduct. Although the plaintiffs have not asserted a
fraud claim, evidence of fraud may nonetheless be relevant to other issues.
•
Reference to criminal plea agreements
The court finds this motion should be denied as moot. The plaintiffs represent that
they do not anticipate offering of such evidence, unless the defendants open the door by
presenting “good acts” or “good character” evidence.
•
Evidence relating to the 2006 Government Accountability Office (GAO)
report
The court finds this motion should be granted at this time, without prejudice to
reconsideration. The court will not permit additional expert testimony through this
document. However, the document may contain some admissible evidence on a proper
showing of foundation and relevance.
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Testimony from prescribers about “off-label” marketing
The court finds this motion should be denied at this time, without prejudice to
reassertion. The evidence may be relevant to issues of reasonableness.
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•
Testimony from Mr. Kammerer regarding heart attacks supposedly
caused by the stress of Mrs. Kammerer’s breast cancer
The court finds this motion should be denied as moot. Plaintiffs concede that they
will not argue a causal connection between Mr. Kammerer’s heart attack and Mrs.
Kammerer’s breast cancer. Testimony will be permitted to the extent it is relevant to Mr.
Kammerer’s loss of consortium claim.
II. PLAINTIFF’S PENDING MOTIONS:
Filing No. 201 (Plaintiffs’ Motion in Limine No. 1): to Admit Wyeth’s Post-2002
Prempro Product Labeling
As noted above, in connection with defendants’ motion in limine No. 10 (Filing No.
231), the court is unable to evaluate this evidence in the context of a motion in limine.
Accordingly, the court finds the motion should be denied without prejudice to reassertion
at trial.
Filing No. 203 (Plaintiff’s Motion in Limine No. 2): to Exclude Plaintiff’s
Alleged “Risk-taking” Behavior, Including Use of Other Prescription Drugs,
Over-the-counter Drugs, and past History of Smoking
The court finds this motion should be denied as moot. The defendants do not
anticipate offering evidence of risk-taking behavior. The court notes that to the extent the
evidence is offered in the context of accepting the risk of hormone therapy treatment, it may
be admissible on a proper showing of foundation and relevance.
Filing No. 205 (Plaintiff’s Motion in Limine No. 3): to Exclude Associations
Between Other Toxins/agents and Other Conditions Not at Issue in this Case
The court is unable to evaluate this evidence in the context of a motion in limine.
Accordingly, the motion will be denied at this time without prejudice to reassertion at trial.
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Filing No. 249 (Plaintiffs’ Motion in Limine No. 4): to Exclude Argument
Suggesting That Plaintiff or Her Attorneys Are Responsible for Absence of Plaintiff’s
September 1998 and March 2000 Mammogram Films
The court finds this motion should be granted. The defendants do not oppose this
motion.
Filing No. 209 (Plaintiffs’ Motion in Limine No. 5): to Exclude Anecdotal
Evidence or Argument as to Personal Experiences of Wyeth’s Employees, Lawyers,
or Family Members of Lawyers or Employees
The court is unable to evaluate this evidence in the context of a motion in limine.
The motion is denied without prejudice to reassertion.
Filing No. 211 (Plaintiffs’ Motion in Limine No. 6): to Bar Argument That FDA
Regulations Forbid or Foreclosed Stronger Product Warnings
The court is unable to evaluate this evidence in the context of a motion in limine. The
motion is denied without prejudice to reassertion.
Filing No. 213 (Plaintiffs’ Motion in Limine No. 7): to bar evidence of Wyeth’s
“good acts”
The court finds this motion should be granted. The defendants are not opposed to
the motion.
Filing No. 216 (Plaintiffs’ Motion in Limine No. 8): to Exclude Argument
Relating to or Alleging Plaintiffs’ Lawyers’ Involvement or Influence
This motion is essentially unopposed. The court finds the motion should be granted,
except as necessary for credibility or impeachment.
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Filing No. 217 (Plaintiffs’ Motion in Limine No. 9): to Bar Any Argument That
a Verdict Against Wyeth Would Negatively Impact Public Health or Wyeth’s Drug
Research.
The court finds this motion should be granted. The defendants are not opposed.
Filing No. 249 - to Exclude Argument Suggesting That Plaintiff or Her
Attorneys Are Responsible for the Absence of Plaintiff’s September 1998 and March
2000 Mammogram Films
The defendants are not opposed to exclusion of this evidence. Accordingly, the court
finds the motion should be granted.
IT IS HEREBY ORDERED:
1. The defendants’ motions in limine (Filing Nos. 189, 192, 195, 198, 215, 222, 225,
228, 231, 234, 237, and 240) are granted in part and denied in part as set forth in this
Memorandum and Order.
2. The plaintiffs’ motions in limine (Filing Nos. 201, 203, 205, 209, 211, 213, 216,
217, and 249) are granted in part and denied in part as set forth in this order.
DATED this 31st day of January, 2012.
BY THE COURT:
s/ Joseph F. Bataillon
U.S. District Court Judge
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the opinion of the court.
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