Torkie-Tork v. Wyeth

Filing 279

ORDERED that plaintiff's Motion in Limine: (D.E. 160) No. 1 is denied; No. 2 is denied as moot; No. 3 is denied as moot; No. 4 is denied; No. 5 is granted in part and denied in part; No. 6 is denied as moot; No. 7 is granted; No. 8 is denied as moot; No. 9 is denied as moot; No. 10 is deferred; (D.E. 122) No. 11 is deferred; (D.E. 140) No. 12 is deferred; (D.E. 156) No. 13 is denied; (D.E. 158) No. 14 is denied (see order for details). Signed by District Judge T. S. Ellis, III on 10/29/2010. (nmcc)

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IN THE UNITED STATES DISTRICT COURtTp [
FOR THE EASTERN DISTRICT OF VIRGINIA

OCT 2 9 2010

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Alexandria Division
URT

GEORGIA TORKIE-TORK,
Plaintiff,

IX A

No. I:04cv945

WYETH,
Defendant.
ORDER

The matter came before the Court on the plaintiffs motions in limine.

For good cause, and for the reasons stated from the Bench,
It is hereby ORDERED that plaintiffs motions in limine are resolved as follows:

1.

Plaintiffs Motion in Limine No. 1 (Doc. No. 1601) seeks to exclude
evidence and argument concerning the "initiating" cause of breast cancer.

Plaintiff asserts that she need only prove that Prempro "promoted," rather
than "initiated," her breast cancer, to succeed in demonstrating causation.

Defendant argues that Virginia law requires a showing that the cause in
question was an initiating cause, rather than merely a promoting cause.
Thus, in defendant's view, evidence concerning the initiating cause is the
only relevant causation evidence. Defendant's argument does not

accurately reflect Virginia law, which appears to draw no distinction

between initiating and promoting causes.2 In any event, although plaintiff
Plaintiffs Motions in Limine Nos. 1-10 were submitted in a single filing. (Doc. No.
160.)

" As the Supreme Court of Virginia has stated:
The proximate cause of an event is that act or omission which, in natural

may meet her burden with evidence that Prempro promoted her breast
cancer, defendant's evidence of initiating breast cancer causes need not be
excluded. An understanding of the initiating causes of cancer is probative

as it assists the jury in a full understanding of the development and growth
of breast cancer. Furthermore, the potential for confusion between
initiation and promotion of cancer does not present a risk of unfair

prejudice that substantially outweighs the probative value of such
evidence, see Rule 403, Fed. R. Evid. Any confusion in the two processes
will be avoided by ensuring that counsel clearly distinguish promoting and
initiating causes in their questions and arguments. Accordingly, plaintiffs

Motion in Limine No. 1(Doc. No. 1603) is DENIED.
2. Plaintiffs Motion in Limine No. 2 (Doc. No. 160) is DENIED as moot,

given the parties' stipulation (Doc. No. 214) that there will be no
discussion of whether toxins, pollutants, pesticides, or plaintiffs

proximity to a Superfund Site contributed to the development of her breast
and continuous sequence, unbroken by an efficient intervening cause,
produces the event, and without which that event would not have
occurred.... The issue of proximate causation, like that of negligence, is
ordinarily a question of fact for a jury to decide.

Howell v. Sobhan, 278 Va. 278, 283-284 (2009). Furthermore, in the products liability
context, while it is true that there can be no liability "where plaintiff only shows that the
injury might be due to one of several causes," it is also well-settled that a plaintiff need
not establish causation "with such certainty as to exclude every other possible cause."
Wright v. Eli Lilly & Co., 66 Va. Cir. 195, 222 (Cir. Ct. 2004). Expert testimony is
typically introduced in such cases to demonstrate proximate cause, and the question of
causation is ultimately and appropriately left to a jury to determine whether plaintiff
proved causation by a preponderance of the evidence. Id

3Plaintiffs Motions in Limine Nos. 1-10 were submitted in a single filing. (Doc. No.
160.)

cancer.

3. Plaintiffs Motion in Limine No. 3 (Doc. No. 160) is DENIED as moot,

given the parties' stipulation (Doc. No. 215) that there will be no argument
that plaintiff has a family history of breast cancer or that she should have
sought genetic testing.
Plaintiffs Motion in Limine No. 4 (Doc. No. 160) is DENIED.

References and arguments concerning alternate causes of breast cancer are

probative as to causation in this case, and as a general matter, such
material's probative value is not substantially outweighed by the danger of

unfair prejudice under Rule 403, Fed. R. Evid. Therefore, the categorical

objection to such material must be denied. Yet, nothing in this ruling shall
prevent plaintiff from lodging a specific objection at trial to particular
questions or evidence, should circumstances warrant.

Plaintiffs Motion in Limine No. 5 (Doc. No. 160) is GRANTED IN

PART insofaras Dr. Cummings's affidavit is excluded with leave granted
to approach the Bench in trial should defendant seek to introduce
statements from the affidavit, and the motion is DENIED IN PART

insofar as the use of the Dr. Cummings's deposition is admissible where
appropriate under Rule 32, Fed. R. Civ. P.

Plaintiffs Motion in Limine No. 6 (Doc. No. 160) is DENIED as moot in
light of the parties stipulation.

Plaintiffs Motion in Limine No. 7 (Doc. No. 160) is GRANTED with

leave to approach the Bench and for permission to elicit personal

experiences, should circumstances warrant. If plaintiff persists in
attacking the sympathies of defendant's witnesses, then questions in this
regard may be allowed.
8.

Plaintiffs Motion in Limine No. 8 (Doc. No. 160) is DENIED as moot,

given the parties' stipulation (Doc. No. 175) that there will be no mention

or reference to the fact that either party did not call as a witness someone
who is outside the subpoena power of the court or outside of the party's
control.

9.

Plaintiffs Motion in Limine No. 9 (Doc. No. 160) is DENIED as moot,

given defendant's representation, appropriately, that defendant will not

violate the "Golden Rule" by referencing particular jurors or suggesting
jurors place themselves in the shoes of particular parties. See Ins. Co. of
N. Am., Inc. v. U.S. Gypsum Co., 870 F.2d 148, 154 (4th Cir. 1989)

(noting that it is improper to ask jurors to place themselves in the position
of a party).

10.

Plaintiffs Motion in Limine No. 10 (Doc. No. 160) is DEFERRED, given
the motion is contingent on the granting of defendant's Motion in Limine
No. 3, which has not yet been resolved.

11.

Plaintiffs Motion in Limine No. 11 (Doc. No. 122) is DEFERRED, given
the motion is contingent on the granting of defendant's Motion in Limine
No. 4, which has not yet been resolved.

12.

Plaintiffs Motion in Limine No. 12 (Doc. No. 140) is DEFERRED, given

the motion is contingent on the granting of defendant's Motion in Limine

No. 5, which has not yet been resolved.
13.

Plaintiffs Motion in Limine No. 13 (Doc. No. 156) is DENIED as
follows:

a. The motion is denied as moot with respect to evidence of
plaintiffs abortion, given defendant's representation that such
evidence will not be introduced.

b. The motion is denied with respect to evidence of plaintiffs

medical history, including visits to a fertility doctor and past

prescription drugs, because plaintiffs medical history is probative
on the issue of causation in this case. Additionally, evidence of

prescriptions for emotional disorders is probative on the issue of

plaintiffs damages for emotional pain and suffering.
c. The motion is denied with respect to plaintiffs personal life
changes, such as her divorce and changes in residence that
followed, to the extent plaintiff seeks compensation for emotional
suffering, and such life experiences provide an alternative basis for
plaintiffs emotional suffering. It is not appropriate to
categorically exclude this evidence under Rules 401,403, or 404,

Fed. R. Evid. Yet, given the potential for unfair prejudice, plaintiff
may renew this objection as to specific pieces of evidence if
circumstances warrant.

14.

Plaintiffs Motion in Limine No. 14 (Doc. No. 158) is DENIED.

Evidence that plaintiffs prescribing physician, Dr. Hurwitz, has a criminal

conviction and forfeited his medical license for selling controlled
substances is relevant to Dr. Hurwitz's credibility. The conviction

concerns the dispensing ofprescriptions to those for whom no prescription
is necessary, and thus the acts involve dishonesty. Furthermore, the
conviction is more probative than prejudicial and therefore admissible

under Rule 609(a), Fed. R. Evid. It is appropriate to allow the jury to
consider such evidence when deciding how much xveight to give Dr.
Hurwitz's statements.

The Clerk is directed to send acopy ofthis Order to all counsel ofrecord.
Alexandria, Virginia
October 29,2010

T.S.Ellis, in

United States District Judge