Collins v. Johnson & Johnson et al

Filing 134

MEMORANDUM OPINION AND ORDER (Motions in Limine) The 106 MOTION by Fran Denise Collins in Limine is is GRANTED in part as to Motion in Limine No. 1 and any other conceded motion therein and the remainder of the Motion is DENIED without prejudice; the 102 OMNIBUS MOTION by Ethicon, Inc., Johnson & Johnson in Limine is GRANTED in part as to Motion in Limine No. 2 and any other conceded motion therein and the remainder of the Motion is DENIED without prejudice; the 104 MOTION by Ethicon, Inc ., Johnson & Johnson in Limine to Exclude Evidence of Plaintiff's Allegations of Spoliation is GRANTED; and the 110 MOTION by Ethicon, Inc., Johnson & Johnson for Leave to File a Reply in Support of Defendants' Motion in Limine to Exclude Evidence of Plaintiff's Allegations of Spoliation is DENIED as moot. 102 MOTION in Limine; granting 104 MOTION in Limine; granting in part and denying in part 106 MOTION in Limine; denying 110 MOTION for Leave to File Signed by Judge Robert C. Chambers on 12/13/2017. (cc: counsel of record; any unrepresented party) (mek)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLESTON DIVISION
FRAN DENISE COLLINS,
Plaintiff,
v.

CIVIL ACTION NO. 2:12-cv-00931

ETHICON, INC., et al.,
Defendants.
MEMORANDUM OPINION AND ORDER
(Motions in Limine)
Pending before the court are the plaintiff’s Motion in Limine [ECF No. 106],
the defendants’ Motions in Limine [ECF Nos. 102, 104], and the defendants’ Motion
for Leave to File a Reply [ECF No. 110].
This case resides in one of seven MDLs assigned to the Honorable Judge
Joseph R. Goodwin by the Judicial Panel on Multidistrict Litigation concerning the
use of transvaginal surgical mesh to treat pelvic organ prolapse (“POP”) and stress
urinary incontinence (“SUI”). This individual case is one of a group of cases
reassigned to me on November 22, 2016. See Order, Nov. 22, 2016 [ECF No. 123]. In
the seven MDLs, there are approximately 29,000 cases currently pending,
approximately 17,000 of which are in this MDL, which involves defendants Johnson
& Johnson and Ethicon, Inc. (collectively, “Ethicon”), among others.
In this MDL, the court’s tasks include “resolv[ing] pretrial issues in a timely

and expeditious manner” and “resolv[ing] important evidentiary disputes.” Barbara
J. Rothstein & Catherine R. Borden, Fed. Judicial Ctr., Managing Multidistrict

Litigation in Products Liability Cases 3 (2011). The court seeks the assistance of the
parties in completing these tasks by asking the parties to focus on discrete, important,
or more relevant matters. Here, Judge Goodwin previously indicated that he expected
the parties to focus their motions in limine on “highly prejudicial statements in
opening or closing statements or questions at trial that, once heard by the jury, cannot
be easily cured by an instruction to disregard.” Pretrial Order No. 234, at 5 [2:12-md2327 ECF No. 2314] (“PTO 234”). Judge Goodwin further cautioned that he would
“not provide advisory opinions on the admissibility of evidence a party may offer at
trial and [would] summarily deny those motions as premature.” Id.
a. The Plaintiff’s Motion to Preclude Evidence Relating to the FDA (Motion in
Limine No. 1) [ECF No. 106]
The plaintiff asks the court to exclude evidence related to the FDA, including
the FDA’s 510(k) process, arguing it is impermissibly irrelevant and prejudicial under
Federal Rules of Evidence 402 and 403.
In short, the 510(k) process “does not in any way denote official approval of [a]
device.” 21 C.F.R. § 807.97. The process is not focused on whether a device is safe; it
is concerned with the device’s equivalence to another device. Medtronic, Inc. v. Lohr,
518 U.S. 470, 493 (1996). Because the process does not speak to the safety or efficacy
of any product, whether Ethicon products were approved through this process is
irrelevant. Even if the 510(k) process were relevant, the court would exclude this

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evidence under Rule 403. Any kernel of relevance is outweighed by “the very
substantial dangers of misleading the jury and confusing the issues.” In re C. R. Bard,
810 F.3d 913, 922 (4th Cir. 2016) (affirming the court’s exclusion of 510(k) evidence).
Put simply, evidence of this sort is irrelevant and, in any event, does not
survive a Rule 403 analysis. The court will not belabor the point here as Judge
Goodwin has already discussed it on several occasions. See, e.g., Lewis v. Johnson &

Johnson, 991 F. Supp. 2d 748, 754–56 (S.D. W. Va. 2014). Accordingly, the court
GRANTS in part the plaintiff’s Motion in Limine [ECF No. 106] as to Motion in
Limine No. 1 and in any other instance where the defendants conceded the plaintiff’s
Motion. The remainder of the plaintiff’s Motion in Limine [ECF No. 106] is DENIED
without prejudice.
b. The Defendants’ Motion to Exclude the January 2012 “522” Letters and
Subsequent FDA Actions (Motion in Limine No. 2) [ECF No. 102]
The defendants ask the court to exclude evidence of the January 2012 “522”
letters and subsequent FDA actions that would have applied to Ethicon devices if
they had not been discontinued, arguing it is prejudicial under Federal Rule of
Evidence 403 and would require presentation of evidence on a collateral issue. Mem.
Supp. Mot. Lim. 2–5 [ECF No. 103]. The plaintiff does not contest this Motion. Resp.
4 [ECF No. 108]. Indeed, the court has excluded this same evidence on prior occasions.

See, e.g., Bellew v. Ethicon, Inc., No. 2:13-cv-22473, 2014 WL 6680356, at *1 (S.D. W.
Va. Nov. 25, 2014). Accordingly, the court GRANTS in part the defendants’ Motion in

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Limine [ECF No. 102] on this point and in any instance where the plaintiff concedes
the defendants’ Motion; the remainder of the Motion is DENIED without prejudice.
c. The Defendants’ Motion to Exclude Evidence of Plaintiff’s Allegations of
Spoliation [ECF No. 104]
The defendants have separately filed a motion in limine to exclude evidence
related to spoliation. [ECF No. 104]. The plaintiffs have repeatedly alleged that the
defendants lost or destroyed documents relevant to this multidistrict litigation. On
February 4, 2014, Magistrate Judge Eifert held that the defendants’ actions were
negligent, not willful or deliberate, and denied the plaintiffs’ motions for severe
sanctions, such as default judgment, striking of defenses, or offering an adverse
instruction in every case. Pretrial Order No. 100, Feb. 4, 2014 [ECF No. 1069].
However, Judge Eifert recommended that I allow the plaintiffs be allowed “the
opportunity to introduce evidence regarding [the defendants’] loss of relevant
documents on a case-by-case basis, and, when appropriate, to tender an adverse
inference instruction.” Id. at 42–43. The plaintiffs have since asked Judge Eifert to
reconsider Pretrial Order # 100, claiming that they have discovered new evidence
that establishes that the defendants’ duty to preserve evidence began earlier than
previously thought. See Pls.’ Request for Clarification and Reconsideration [2:12-md2327 ECF No. 1099].
While a motion for reconsideration is pending before Judge Eifert, the parties
have indicated that they do not desire a ruling on the motion at this time. If and until
Judge Eifert rules on the motion to reconsider, her original ruling remains in force

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and effect. Moreover, the plaintiff has offered no evidence or argument that evidence
of spoliation will be relevant in this case. Therefore, the defendants’ Motion in Limine
[ECF No. 104] on the issue of spoliation is GRANTED.
Accordingly, the defendants’ Motion for Leave to File a Reply [ECF No. 110] is
DENIED as moot.
d. Conclusion
The plaintiff’s Motion in Limine [ECF No. 106] is GRANTED in part as to
Motion in Limine No. 1 and any other conceded motion therein; the remainder of the
Motion is DENIED without prejudice. The defendants’ Motion in Limine [ECF No.
102] is GRANTED in part as to Motion in Limine No. 2 and any other conceded motion
therein; the remainder of the Motion is DENIED without prejudice. The defendants’
Motion to Exclude Evidence of Plaintiff’s Allegations of Spoliation [ECF No. 104] is
GRANTED. The defendants’ Motion for Leave to File a Reply [ECF No. 110] is
DENIED as moot.
The court DIRECTS the Clerk to send a copy of this Order to counsel of record
and any unrepresented party.
ENTER:

December 13, 2017

ROBERT C. CHAMBERS
UNITED STATES DISTRICT JUDGE

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