Guthrie v. Ball et al

Filing 209

ORDER granting in part and denying in part 86 Motion in Limine; granting in part and denying in part 92 Motion in Limine. Signed by Magistrate Judge Susan K Lee on October 9, 2014. (CNC, )

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT CHATTANOOGA
KAREN GUTHRIE, individually and on
Behalf of the Estate of Donald Guthrie,
Plaintiff,
v.
GREGORY BALL, M.D., et al.,
Defendants.

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No. 1:11-cv-333-SKL

ORDER
Before the Court is the “Motion in Limine No. 2 to Partially Exclude Evidence or
Argument that Plaintiff Brought Product Liability Claims Against Watson or Plaintiff’s Settlement
with Watson” filed by Plaintiff Karen Guthrie, individually and on behalf of the Estate of Donald
Guthrie (“Plaintiff”) [Doc. 86], in which she seeks to exclude all evidence or argument regarding
Plaintiff’s product liability lawsuit against Watson Pharmaceuticals, Inc. and Plaintiff’s settlement
of that lawsuit. Defendant Gregory Ball, M.D. (“Defendant”) failed to file a timely response and
the Court could deem Defendant’s failure as a waiver of all opposition to the relief requested by
Plaintiff under E.D. Tenn. L.R. 7.2. The Court will not deem it a waiver, however, because this is
an evidentiary matter and it promotes judicial efficiency for the Court to consider and address
Defendant’s arguments in his late-filed response [Doc. 168]. Plaintiff has filed a reply [Doc. 189]
and the matter is now ripe.
Also before the Court is Plaintiff’s “Motion in Limine No. 6 to Exclude Any Reference to
Different Lawsuits in Which Plaintiff’s Counsel Has Represented Different Clients Against
Different Drug Manufacturers” [Doc. 92]. Defendant again failed to file a response by the
deadline set in the scheduling order, but the Court will nevertheless consider Defendant’s late-filed

response [Doc. 187].
I.

FACTUAL BACKGROUND
Prior to the filing of this lawsuit, Plaintiff brought an action in this Court styled Guthrie v.

Watson Pharmaceuticals, Inc., No. 1:11-cv-109. This prior action alleged product liability
claims against Watson Pharmaceuticals, Inc. as well as its subsidiaries (collectively, “Watson”),
which designed, manufactured, marketed, and distributed the fentanyl patch worn by Plaintiff’s
late husband, Donald Guthrie, at the time of his death. Plaintiff alleged in her complaint that the
fentanyl patch was defective and unreasonably dangerous and caused Mr. Guthrie’s death because
it malfunctioned and gave Mr. Guthrie a much higher dose of fentanyl than a properly functioning
patch should have given him. Plaintiff later amended her complaint to include and assert claims
of negligence against Defendant and Melissa Rogers, a physician’s assistant, but later voluntarily
dismissed them from that case. Thereafter, the case was transferred to the Northern District of
Illinois as part of a multidistrict litigation (“MDL”), styled In Re: Watson Fentanyl Patch Products
Liability Litigation, No. 1:12-cv-6296, MDL No. 2372. The parties report that Plaintiff and
Watson reached a settlement of the case in the MDL before any depositions were taken.
In this case, Plaintiff sued Defendant and Ms. Rogers for the alleged wrongful death of Mr.
Guthrie, which Plaintiff claims was caused by their negligent or wrongful conduct in prescribing to
Mr. Guthrie fentanyl patches manufactured by Watson. Plaintiff alleges that a toxicology report
performed after Mr. Guthrie’s death showed that he had a fatal fentanyl concentration in his blood
at the time of his death, and the medical examiner listed the cause of death as fentanyl toxicity.
Additionally, counsel for Plaintiff reportedly has been involved in numerous product
liability lawsuits against several different manufacturers of fentanyl patches, in which Plaintiff’s
counsel represented clients other than Plaintiff.

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In Plaintiff’s second motion in limine, Plaintiff seeks to exclude all evidence or argument
regarding Plaintiff’s product liability lawsuit against Watson and the settlement of that lawsuit at
the trial in this case. In Plaintiff’s sixth motion in limine, Plaintiff seeks to exclude all evidence of
statements made or positions taken by Plaintiff’s counsel in other cases involving fentanyl patches,
as well as statements made by expert witnesses in such other cases.
II.

STANDARD
“In a diversity case, the admissibility of evidence is a procedural matter governed by

federal law.” Barnes v. Owens-Corning Fiberglas Corp., 201 F.3d 815, 829 (6th Cir. 2000). A
motion in limine is a motion “‘to exclude anticipated prejudicial evidence before the evidence is
actually offered.’” Louzon v. Ford Motor Co., 718 F.3d 556, 581 (6th Cir. 2013) (quoting Luce v.
United States, 469 U.S. 38, 40 n.2 (1984)). The goal of a motion in limine is “‘to narrow the
evidentiary issues for trial and to eliminate unnecessary trial interruptions.’” Id. (quoting Bradley
v. Pittsburgh Bd. of Educ., 913 F.2d 1064, 1069 (3d Cir. 1990)). As the Sixth Circuit has noted,
“[o]rders in limine which exclude broad categories of evidence should rarely be employed. A
better practice is to deal with questions of admissibility of evidence as they arise.” Sperberg v.
Goodyear Tire & Rubber Co., 519 F.2d 708, 712 (6th Cir. 1975).
“Evidence is relevant if: (a) it has any tendency to make a fact more or less probable than
it would be without the evidence; and (b) the fact is of consequence in determining the action.”
Fed. R. Evid. 401.

“Relevant evidence is admissible” unless otherwise provided by the

Constitution, federal statute, or the Federal Rules of Evidence, and “[i]rrelevant evidence is not
admissible.” Fed. R. Evid. 402. Relevant evidence may be excluded by the court “if its
probative value is substantially outweighed by a danger of one or more of the following: unfair
prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly

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presenting cumulative evidence.” Fed. R. Evid. 403. Evidence of settlement negotiation and
agreement is generally inadmissible for any purpose, including impeachment, except in limited
cases of witness bias or prejudice, or to negate a contention of undue delay. See Fed. R. Civ. P.
408.
III.

ANALYSIS
The Court will first address Plaintiff’s second motion in limine [Doc. 86] and will then

address Plaintiff’s sixth motion in limine [Doc. 92].
A.

Plaintiff’s “Motion in Limine No. 2 to Partially Exclude Evidence or
Argument that Plaintiff Brought Product Liability Claims Against Watson or
Plaintiff’s Settlement with Watson” [Doc. 86]

In Plaintiff’s second motion in limine, Plaintiff seeks to exclude evidence and argument
regarding (1) Plaintiff’s liability claims previously brought against Watson, and (2) Plaintiff’s
settlement of those claims with Watson. The Court will address each of these issues in turn.
1.

Admissibility of Plaintiff’s Product Liability Claims Against Watson

Plaintiff argues that the Court should exclude all evidence or argument regarding the
product liability claims that Plaintiff previously alleged against Watson. Plaintiff’s argument is
based on Rule 8(d)(2) of the Federal Rules of Civil Procedure, which allows a party to “set out 2 or
more statements of a claim or defense alternatively or hypothetically, either in a single count or in
separate ones” and Rule 8(d)(3), which allows a party to “state as many separate claims or defenses
as it has, regardless of consistency.” Fed. R. Civ. P. 8(d)(2)-(3). Plaintiff cites to case law from
a variety of other circuits in support of her contention that “[m]ost federal courts considering the
issue have held that alternative pleadings should not be admitted as an admission or for
impeachment.” [Doc. 86 at Page ID # 910-11]. However, the case law cited by Plaintiff from
other circuits is not binding on this Court, and as noted by Defendant in his response, Plaintiff has

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failed to reference the Sixth Circuit law on this issue.
The Sixth Circuit has held that “‘[p]leadings in a prior case may be used as evidentiary
admissions.’” Barnes, 201 F.3d at 829 (quoting Williams v. Union Carbide Corp., 790 F.2d 552,
556 (6th Cir. 1986)). “While the naming of the other defendants [in prior cases’ complaints] is
not necessarily an ‘admission’ of the other defendants’ liability, the complaints admit the existence
of potential claims against the named defendants that may be relevant to causation.” Id. (citations
omitted). In Barnes, the Sixth Circuit found that the plaintiffs’ complaints from prior cases
against other named defendants were “relevant to causation and sufficiently probative to survive
Rule 403 scrutiny” and noted that it had previously reversed a district court decision “not to allow
into evidence a prior complaint claiming the injuries alleged were caused by a different
defendant.” Id. (citing Williams, 790 F.2d at 556).
Plaintiff’s prior complaint against Watson alleged that Watson was liable for Mr. Guthrie’s
wrongful death. Because the Sixth Circuit has made it clear that “evidence [of] a prior complaint
claiming the injuries alleged were caused by a different defendant” should be admitted into
evidence, Barnes, 201 F.3d at 829; see also Williams, 790 F.2d at 556, Plaintiff’s prior complaint
against Watson will not be excluded from evidence and argument at trial of the instant case.
Plaintiff makes additional arguments in support of her motion in her reply brief. Plaintiff
argues that Williams v. Union Carbide is distinguishable and should not apply here, because it did
not involve a situation involving alternative or hypothetical pleadings. In Barnes, however, the
Sixth Circuit held that the naming of other defendants in a complaint is not necessarily an
admission of the other defendants’ liability, but “the complaints admit the existence of potential
claims against the named defendants that may be relevant to causation.” 201 F.3d at 829. The
Sixth Circuit found that there was no reason to treat differently a situation involving prior

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allegations that other defendants were also liable from the situation in Williams, where the prior
complaint alleged that the injuries were caused by a different defendant. Thus, the Sixth Circuit
held that the allegations in the prior complaint against jointly liable defendants were admissible, as
they were “relevant to causation and sufficiently probative to survive Rule 403 scrutiny.” Id.
Plaintiff’s argument therefore fails.
Plaintiff argues that Defendant has no evidence that a defective Watson patch caused Mr.
Guthrie’s injuries, and that evidence to the contrary came to light after the filing of Plaintiff’s
lawsuit against Watson. Plaintiff argues that it would be unfairly prejudicial to allow Defendant
to use an alternative pleading that Mr. Guthrie’s injuries were caused by a defective patch when the
pleading was filed a year before evidence to the contrary was published. Such explanations
would more appropriately be made to the jury, who will determine the weight to give all the
evidence.
In addition, because comparative fault is an affirmative defense under Tennessee law, a
defendant who raises such a defense is required to prove a prima facie case of negligence against
any nonparty he contends was negligent, and Defendant will bear that burden here. See Banks v.
Elks Club Pride of Tenn. 1102, 301 S.W.3d 214 (Tenn. 2010). In spite of the vast motion practice
in this case, Plaintiff never sought summary judgment on Defendant’s assertion of an affirmative
defense of comparative fault against Watson in this case.
Plaintiff also argues in her reply that a party’s complaint is only admissible against the
party if it can be shown that the party supplied the information in the complaint. Plaintiff cites to
a Sixth Circuit case from 1968 in support of this contention, Kesmarki v. Kisling, 400 F.2d 97 (6th
Cir. 1968). However, more recent Sixth Circuit case law has made it clear that “under federal
law, stipulations and admissions in the pleadings are generally binding on the parties and the court.

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Not only are such admissions and stipulations binding before the trial court, but they are binding
on appeal as well.” Barnes, 201 F.3d at 829 (citations and internal quotation marks omitted).
Furthermore, “[a]s a general matter, complaints are admissible under Rule 801(d)(2)(a) and
specifically under the case law set forth in American Title.” Id. (citing American Title Ins. Co. v.
Lacelaw Corp., 861 F.2d 224, 226 (9th Cir. 1988)). Thus, this argument, which was made by
Plaintiff for the first time in her reply, also fails.
Plaintiff’s third and final argument is that pleadings are not automatically admissible, as
evidenced by the “pleadings” that Defendant has filed seeking to exclude evidence from trial.
Plaintiff contends that because Defendant has requested in his motions in limine that Plaintiff be
prohibited from making any reference to the fact that the motions were filed due to concerns of
unfair prejudice, the complaint filed by Plaintiff against Watson is likewise not automatically
admissible. Plaintiff argues that if the Court were to accept Defendant’s logic, Plaintiff could
introduce Defendant’s motions in limine as admissions simply because they are “pleadings.”
This third argument ignores Rule 7(a) of the Federal Rules of Civil Procedure, which defines
“pleadings” as “a complaint; an answer to a complaint; an answer to a counterclaim designated as
a counterclaim; an answer to a crossclaim; a third-party complaint; an answer to a third-party
complaint; and if the court orders one, a reply to an answer.” Fed. R. Civ. P. 7(a); see also Fox v.
Mich. State Police Dep’t, 173 F. App’x 372, 374 (6th Cir. 2006). Courts do not recognize that
motions or responses to motions constitute a “pleading” under Rule 7(a). See Rouse v. Caruso,
No. 06–10961–DT, 2007 WL 209920, *2, (E.D. Mich. Jan. 24, 2007); see also Fed. R. Civ. P.
7(b).
As Plaintiff’s motions-as-pleadings argument fails and it is well established in the Sixth
Circuit that pleadings from prior cases may be used as evidentiary admissions subject to

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explanation, Plaintiff’s second motion in limine will be DENIED IN PART with respect to
Plaintiff’s prior allegations against Watson.
2.

Admissibility of Plaintiff’s Settlement with Watson

Plaintiff argues that the Court should exclude all evidence or argument regarding the
settlement of Plaintiff’s product liability claims against Watson under Rules 403 and 408 of the
Federal Rules of Evidence. Plaintiff argues that “[t]he plain language of Rule 408 forbids the
admission of settlements” for the purpose of arguing that the patch was defective, which Plaintiff
expects Defendant to argue at trial. [Doc. 86 at Page ID # 912]. Plaintiff further argues that the
settlement’s probative value would be substantially outweighed by its prejudicial effect under
Rule 403.
As noted above, evidence of settlement negotiation and agreement is generally
inadmissible for any purpose under Rule 408 of the Federal Rules of Evidence. Defendant, in his
response, agrees that Plaintiff’s settlement with Watson is inadmissible under Rule 408.
Accordingly, Plaintiff’s motion will be GRANTED IN PART with respect to the settlement
between Plaintiff and Watson.
B.

Plaintiff’s “Motion in Limine No. 6 to Exclude Any Reference to Different
Lawsuits in Which Plaintiff’s Counsel Has Represented Different Clients
Against Different Drug Manufacturers” [Doc. 92]

In this motion, Plaintiff seeks to exclude any reference to the lawsuits in which Plaintiff’s
counsel has represented, or is contemporaneously representing, different clients who are suing
other drug manufacturers. Plaintiff also argues that any statements by expert witnesses in these
other cases should also be excluded. As grounds for her motion, Plaintiff argues that such
lawsuits are irrelevant to this case under Rule 401; such lawsuits would be unfairly prejudicial
under Rule 403; any statements made by or pleadings filed by Plaintiff’s counsel in such other

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lawsuits would constitute hearsay for which no exception applies for use in this case under Federal
Rule of Evidence 801 (“Rule 801”); statements by expert witnesses from such lawsuits who are not
serving as expert witnesses in this case would be unfairly prejudicial under Rule 403; and because
permitting statements made by or positions taken by Plaintiff’s counsel or Plaintiff’s counsel’s
previously retained experts in such lawsuits to be admitted in this case runs counter to public
policy.
In response, Defendant agrees not to make any reference to the fact that Plaintiff’s counsel
has represented hundreds of clients in fentanyl patch litigation. Defendant argues, however, that
he should be permitted to cross-examine Plaintiff’s experts as to their prior involvement in cases
on behalf of Plaintiff’s counsel, as such information is proper and fair grounds for
cross-examination because it goes towards credibility, bias, and prejudice of the expert.
Defendant also argues that while it is not clear because the motion is vague, if the motion seeks to
exclude any reference to Plaintiff’s counsel’s prior representation of Plaintiff against Watson,
Defendant should be permitted to introduce evidence of Plaintiff’s prior claim against Watson, and
incorporates his response to Plaintiff’s Motion in Limine No. 2.
The Court agrees with Defendant. As ruled above with respect to Plaintiff’s Motion in
Limine No. 2, Defendant may introduce Plaintiff’s prior complaint allegations against Watson as
an evidentiary admission. Thus, the instant motion is DENIED IN PART in that references to
Plaintiff’s prior lawsuit against Watson will not be excluded. Additionally, Defendant may
cross-examine Plaintiff’s expert witnesses as to their prior involvement with Plaintiff’s counsel
because such questions go towards the credibility and bias of the expert. See e.g., Great Lakes
Anesthesia, PLLC v. State Farm Mut. Auto. Ins. Co., Nos. 11-10658, 11-11003, 11-11855, 2011
WL 4507417, at *5 (cross-examination of an expert witness regarding fees earned by the expert in

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other cases is proper to show bias). Thus, Plaintiff’s motion is DENIED IN PART in that
Defendant may cross-examine Plaintiff’s expert witnesses regarding their prior involvement on
other cases with Plaintiff’s counsel and positions they took in regard to those cases. Finally,
Plaintiff’s motion will be GRANTED IN PART in that Defendant may not make any reference to
any other lawsuits in which Plaintiff’s counsel has represented clients other than Plaintiff that do
not involve his designated experts in this case.
IV.

CONCLUSION
Accordingly, Plaintiff’s “Motion in Limine No. 2 to Partially Exclude Evidence or

Argument that Plaintiff Brought Product Liability Claims Against Watson or Plaintiff’s Settlement
with Watson” [Doc. 86] is:
(1)

GRANTED IN PART in that evidence of Plaintiff’s settlement with Watson is
excluded from trial; and

(2)

DENIED IN PART in that Plaintiff’s prior product liability lawsuit against
Watson may be introduced by Defendant as an evidentiary admission.

Plaintiff’s “Motion in Limine No. 6 to Exclude Any Reference to Different Lawsuits in
Which Plaintiff’s Counsel Has Represented Different Clients Against Different Drug
Manufacturers” [Doc. 92] is:
(1)

GRANTED IN PART in that Defendant may not reference the other cases in
which Plaintiff’s counsel represented clients other than Plaintiff in lawsuits against
manufacturers of fentanyl patches;

(2)

DENIED IN PART in that Defendant may cross-examine/impeach Plaintiff’s
expert witnesses regarding their prior involvement on other cases where they were
retained by Plaintiff’s counsel or his firm; and

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(3)

DENIED IN PART with regard to Plaintiff’s counsel’s representation of Plaintiff
against Watson.

SO ORDERED.
ENTER:
s/fâátÇ ^A _xx
_
SUSAN K. LEE
UNITED STATES MAGISTRATE JUDGE

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