Hutchens et al v. Abbott Laboratories Inc.

Filing 204

Order. Defendants' Motion in Limine to Exclude Evidence of Codes of Business Conduct or Ethics (Related Doc # 116 ) is granted. Judge Christopher A. Boyko on 1/10/2017.(H,CM)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
Z.H. by and through KEVIN
HUTCHENS and CHRISTIN
HUTCHENS, individually, and as )
parents and next friends of Z.H.
Plaintiffs,
Vs.
ABBOTT LABORATORIES, INC.
and ABBVIE, INC.
Defendant.

)
)
)
)
)
)
)
)
)
)
)
)

CASE NO.1:14CV176

JUDGE CHRISTOPHER A. BOYKO

ORDER

CHRISTOPHER A. BOYKO, J:
This matter is before the Court on Defendants’ Motion in Limine to Exclude Evidence,
Testimony and Argument about Codes of Business Conduct, Ethical Guidelines, or Similar
Documents Promulgated by Abbott, the FDA, PhRMA, or any Other Entity and Not if Effect
Prior to the Minor Plaintiff’s Conception. (ECF # 116). For the following reasons, the Court
grants Defendants’ Motion.
“Motions in Limine are generally used to ensure evenhanded and expeditious
management of trials by eliminating evidence that is clearly inadmissible for any purpose.”
Indiana Insurance Co. v. General Electric Co., 326 F.Supp. 2d 844, 846 (N.D.Ohio 2004) (citing
Jonasson v. Lutheran Child and Family Serv., 115 F.3d 436, 440 (7th Cir.1997)). A “motion in

limine, if granted, is a tentative, interlocutory, precautionary ruling by the trial court reflecting its
anticipatory treatment of the evidentiary issue . . . the trial court is certainly at liberty ‘* * * to
consider the admissibility of the disputed evidence in its actual context.’” State v. Grubb, 28
Ohio St.3d 199, 201-202 (1986) (citing State v. White, 6 Ohio App.3d 1, 4 (1982)). “Indeed,
even if nothing unexpected happens at trial, the district judge is free, in the exercise of sound
judicial discretion, to alter a previous in limine ruling.” Luce v. United States, 469 U.S. 38, 41
(1984).
The Sixth Circuit has instructed that the “better practice” is to address questions
regarding the admissibility of broad categories of evidence “as they arise.” Sperberg v.
Goodyear Tire & Rubber Co., 519 R.2d 708, 712 (6th Cir. 1975). “[A] court is almost always
better situated during the actual trial to assess the value and utility of evidence.” OwnerOperator Independent Drivers Ass’n v. Comerica Bank, No. 05-CV-0056, 2011 WL 4625359, at
*1 (S.D.Ohio Oct.3, 2011). It is noteworthy that denial of a motion in limine does not
necessarily mean that the evidence, which is the subject of the motion, will be admissible at trial.
Ind. Ins. Co. v. Gen. Elec. Co., 326 F.Supp. 2d 844, 846 (N.D.Ohio 2004).
Fed.R.Evid. 401 defines relevant evidence as evidence tending to make the existence of
any fact that is of consequence to the determination of the action more probable or less probable
than it would be without the evidence. Moreover, Fed.R.Evid. 402 provides that evidence that
“is not relevant is not admissible.”
During depositions, Defendants allege their company witnesses were questioned by
Plaintiffs’ counsel regarding codes of business conduct, guidelines, standards and similar
documents promulgated by Defendants, the Pharmaceutical Research and Manufacturers of

2

America (“PhRMA”) and others that were not in effect prior to Z.H.’s conception. Defendants
move the Court to exclude any such testimony or evidence as irrelevant to whether Defendants
met their legal obligations to adequately warn physicians of the birth defect risks of Depakote in
women of child bearing age. These ethical guidelines and codes do not tend to prove or disprove
the adequacy of Defendants’ warning prior to Z.H.’s conception. Furthermore, Defendants argue
they would tend to mislead the jury because the jury may substitute these later adopted
guidelines or codes for the legal standards in the case. Defendants cite to Judge O’Malley’s
decision in In re Welding Fume Prod. Liab. Litig. No. 1:03CV17000, 2005 WL 1868046, at *20
(N.D. Ohio Aug. 8, 2005) wherein the court held, “But the critical question for the jury in this
case is whether the defendant corporations did what the law required them to do, not whether, for
a societal perspective, they did what an ethical corporation should have done.....opinions
regarding the lateer, accordingly, will tend to misdirect the finder of fact.”
Plaintiffs opposition is based on their argument that while the codes and guidelines may
not have been formally adopted prior to Z.H.’s conception, they did govern Defendants’
operations for decades. Whether Defendants breached their own guidelines is relevant to the
alleged breach of their legal duties in this case. They are also relevant to what the industry
standards were at the time and have a tendency to make the facts of this case more or less
probable. The testimony comes for Defendants’ own employees and is therefore, not improper
lay testimony. Finally, Plaintiffs argue Defendants motion is too vague and overbroad.
The Court finds that evidence or testimony regarding any ethical standards, guidelines or
similar codes of conduct that were not in effect prior to Z.H.’s conception are irrelevant to the
causes of action in this case and are excluded. Furthermore, the Court agrees with Defendants

3

that the introduction of such standards would tend to mislead the jury and draw its focus away
from the legal standards to be applied.
IT IS SO ORDERED.

s/ Christopher A. Boyko
CHRISTOPHER A. BOYKO
United States District Judge
Dated: January 10, 2017

4