Hutchens et al v. Abbott Laboratories Inc.

Filing 209

Order. Defendants' Motion in Limine to Exclude References to Articles or Press Releases Discussing Depakote (Related Doc # 117 ) is granted in part. Defendants' Motion in Limine to Exclude Evidence of Sibling's Medical Condition (Related Doc # 125 ) is granted. Defendants' Motion in Limine to Exclude Improperly Disclosed Opinions of Treating Physicians (Related Doc # 126 ) is denied at this time. Judge Christopher A. Boyko on 1/13/2017.(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.,
Defendants.

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CASE NO. 1:14CV176
JUDGE CHRISTOPHER A. BOYKO

ORDER

CHRISTOPHER A. BOYKO, J.:
This matter comes before the Court upon Defendants’ Motions in Limine (ECF DKT
#117, #125 and #126).
I. INTRODUCTION
Plaintiff Z.H. is a minor child who suffers from serious birth defects. Z.H.’s injuries
were allegedly caused by in utero exposure to Depakote, an antiepileptic drug prescribed to
his mother, Christin Hutchens. Plaintiffs allege that Defendants, Abbott Laboratories, Inc.
and Abbvie, Inc. (“Abbott”), failed to provide adequate warnings regarding the risk of birth
defects associated with Depakote use.
II. LAW AND ANALYSIS
Motions in Limine
“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.”
With these precepts in mind, and upon consideration of the parties’ briefs and

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arguments, the Court rules as follows:

DEFENDANTS ABBOTT LABORATORIES INC. AND ABBVIE INC.’S MOTION IN
LIMINE (NO.14) TO EXCLUDE REFERENCES TO NEWSPAPER ARTICLES,
MAGAZINE ARTICLES, PRESS RELEASES AND/OR MEDIA REPORTS
RELATING TO AND/OR DISCUSSING DEPAKOTE (ECF DKT #117)

Defendants move for an order excluding from evidence and precluding all reference to
newspaper articles, magazine articles, press releases and/or media reports relating to and/or
discussing Depakote. Defendants argue that such evidence is hearsay, irrelevant and unduly
prejudicial.
The Court agrees with Plaintiffs that this Motion presents a very broad and sweeping
request. The Court will not exclude scientific periodicals or reports that are relied upon by
experts in their field and that are used in forming their opinions. Further, the Court will not
exclude scientific periodicals or reports if the testimony at trial demonstrates that these
writings are relevant to the issue of notice to Defendants and/or to Defendants’ knowledge of
the risks to epileptic patients of childbearing age who are taking Depakote.
Therefore, Defendants’ Motion is GRANTED IN PART.

DEFENDANTS ABBOTT LABORATORIES INC. AND ABBVIE INC.’S MOTION IN
LIMINE (NO.16) TO EXCLUDE EVIDENCE, TESTIMONY, ARGUMENT AND
REFERENCES TO THE MEDICAL CONDITION OF MINOR PLAINTIFF Z.H.’S

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SIBLING (ECF DKT #125)

Defendants ask the Court to issue an order barring evidence, testimony, argument or
other references to the medical condition, medical history, physical health, physical abilities,
cognitive ability or psychological well-being of Minor Plaintiff Z.H.’s sibling. Further,
Defendants seek an order prohibiting Plaintiffs from suggesting that the absence of birth
defects, disabilities, developmental delay, or other physical, cognitive or psychological
conditions in Z.H.’s sibling is evidence of or probative that Z.H.’s injuries were caused by
Mrs. Hutchens’ ingestion of Depakote while pregnant. Defendants contend that such
evidence, testimony or other reference to the health of Z.H.’s sibling is irrelevant, since this
case only concerns Minor Plaintiff Z.H.’s birth defects.
Plaintiffs agree that evidence of any pregnancy after Z.H.’s birth or consideration of a
later pregnancy should not be admitted. However, Plaintiffs speculate that Abbott may offer
evidence or argument that otherwise “opens the door.”
The Court finds that evidence of Z.H.’s sibling’s medical condition is not germane to
Plaintiffs’ claims in this case. However, the Court may re-visit this ruling if the presentation
of evidence and testimony at trial warrants it.
Defendants’ Motion (ECF DKT #125) is GRANTED.

DEFENDANTS’ MOTION IN LIMINE (NO.17) TO EXCLUDE IMPROPERLY
DISCLOSED OPINIONS HELD BY PLAINTIFFS’ TREATING PHYSICIANS (ECF
DKT #126)

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Defendants move the Court to exclude from trial any opinions proffered through
Plaintiffs’ treating health care providers, but not disclosed and summarized in accordance
with Fed.R.Civ.P. 26(a)(2)(C).
Treating physicians may testify about their observations, diagnoses and treatment of
Christin Hutchens and Z.H. However, the Court defers ruling on any specific testimony from
any non-retained expert witness until trial when the Court can consider it in the actual and
proper context.
Defendants’ Motion (ECF DKT #126) is DENIED AT THIS TIME.
IT IS SO ORDERED.

s/ Christopher A. Boyko
CHRISTOPHER A. BOYKO
United States District Judge
Dated: January 13, 2017

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