Mullins et al v. Johnson & Johnson et al

Filing 1733

MEMORANDUM OPINION & ORDER (Motions in Limine) The defendants' 939 OMNIBUS MOTION in Limine is GRANTED in part as to Motion in Limine No. 11 and any other conceded motion therein, the remainder of the Motion is DENIED without prejud ice; defendants' 941 MOTION in Limine to Exclude Evidence of Plaintiffs' Allegations of Spoliation is GRANTED; the 936 OMNIBUS MOTION in Limine by Deirdre McIntyre, James McIntyre to Exclude Certain Testimony and Evidence at Tr ial, 937 OMNIBUS MOTION by Nancy Oxley in Limine to Exclude Certain Testimony and Evidence at Trial, 938 CASE-SPECIFIC MOTIONS by Rebecca Sprout in Limine, 942 SUPPLEMENTAL MOTIONS in Limine, 945 MOTION by Crystal Barr, James Barr in Lim ine to Exclude Testimony and Evidence at Trial Regarding Specific Details About Ms. Barr's Depression, 952 MOTION by Carol Javins in Limine Precluding Improper Case Specific Arguments on Evidence of Personal Issues the Mr. and Mrs. Javins Have Experienced During the Course of Their Lives, 953 MOTION by Patricia Bernice Martinez in Limine to Exclude Evidence Concerning Plaintiff's Receipt of Disability Benefits, 954 MOTION by Patricia Bernice Martinez in Limine to Exclude Evidence Concerning Plaintiff's Mental Health Conditions, 955 MOTION by Patricia Bernice Martinez in Limine to Exclude Evidence Concerning Plaintiff's Preexisting Medical Conditions, 956 CASE SPECIFIC MOTIONS by Perry E. Dillon, Ret a J. Dillon in Limine, 958 CASE SPECIFIC MOTIONS by Perry E. Dillon, Reta J. Dillon in Limine, 959 MOTION by Cora Lynn Tomblin in Limine, 960 CASE SPECIFIC MOTION by Debra Daniel, Randy Daniel in Limine No. 1, 961 OMNIBUS CASE-SPECIFIC MO TIONS by Kathie Iquinto in Limine, 962 CASE SPECIFIC MOTION by Kevin Bennett, Teresa Bennett in Limine, 965 MOTION by Carol Whisner, Vince Whisner in Limine Number 1, 966 MOTIONS by James Cheshire, Sandra Cheshire in Limine, 967 MOTION by Karen Sue Gillum, Samuel W. Gillum in Limine, Subject to Plaintiff's Amended Motion for Substitution of Party Pursuant to Fed. R. Civ. P. 25, and 969 MOTION by Jane Kelly, Ronald Kelly in Limine are GRANTED insofar as they are conceded a nd are otherwise DENIED without prejudice; the 904 MOTION to Withdraw is GRANTED; and the 793 MOTION by Kathy Jones in Limine is DENIED as moot, as more fully set forth herein. Signed by Judge Joseph R. Goodwin on 2/8/2017. (cc: counsel of record; any unrepresented party) (ts)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLESTON DIVISION
TERRESKI MULLINS, et al.,
Plaintiffs,
v.

CIVIL ACTION NO. 2:12-cv-02952

ETHICON, INC., et al.,
Defendants.

MEMORANDUM OPINION & ORDER

(Motions in Limine)

Pending before the court are the plaintiffs’ Motions in Limine [ECF Nos. 936,
937, 938, 942, 945, 952, 953, 954, 955, 956, 958, 959, 960, 961, 962, 965, 966, 967, 969,
793], the plaintiff Kathy Jones’s Motion to Withdraw Motion in Limine [ECF No. 904],
and the defendants’ Motions in Limine [ECF Nos. 939, 941].
This consolidated case involving approximately twenty-five plaintiffs resides
in one of seven MDLs assigned to me 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”). In the seven MDLs, there are more
than 58,000 cases currently pending, approximately 28,000 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, the court 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-md-2327 ECF No. 2314] (“PTO 234”).
The court further cautioned that it 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 Defendants’ Motion to Exclude the January 2012 “522” Letters and
Subsequent FDA Actions (Motion in Limine No. 11) [ECF No. 939]
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 Rules of
Evidence 403 and would require presentation of evidence on a collateral issue. Mem.
Supp. Mot. Lim. 19–21 [ECF No. 940]. The plaintiffs do not contest this Motion. Resp.
21 [ECF No. 1208]. 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). The court GRANTS in part the defendants’ Motion in
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Limine [ECF No. 939] on this point and in any instance where the plaintiffs concede
to the defendants’ Motion; the remainder of the Motion is DENIED without prejudice.
b. The Defendants’ Motion to Exclude Evidence of Plaintiffs’ Allegations of
Spoliation [ECF No. 941]
The defendants have separately filed a motion in limine to exclude evidence
related to spoliation. [ECF No. 941]. 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 “the opportunity to
introduce evidence regarding [the defendants’] loss of relevant documents on a caseby-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-md-2327 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. The plaintiffs have not offered argument that evidence of spoliation will
be relevant in their respective cases. Further, the court has previously dismissed the
plaintiffs’ spoliation claims. See Order, Nov. 18, 2016 [ECF No. 1507]. Therefore, the
defendants’ Motion in Limine [ECF No. 941] on the issue of spoliation is GRANTED.
c. Remaining Motions
The remaining plaintiffs’ Motions in Limine [ECF Nos. 936, 937, 938, 942, 945,
952, 953, 954, 955, 956, 958, 959, 960, 961, 962, 965, 966, 967, 969] do not comport
with PTO 234’s requirement to focus 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” and are more appropriately handled by the trial
court judge following remand or transfer at or before trial. PTO 234 at 5. Accordingly,
the plaintiffs’ individual, case-specific Motions in Limine [ECF Nos. 936, 937, 938,
942, 945, 952, 953, 954, 955, 956, 958, 959, 960, 961, 962, 965, 966, 967, 969] are
GRANTED insofar as they are conceded and are otherwise DENIED without
prejudice.
The Motion in Limine filed by the plaintiff Kathy Jones at ECF No. 793 was
filed in error, therefore, the plaintiff Kathy Jones’s Motion to Withdraw [ECF No.
904] is GRANTED. The Motion in Limine [ECF No. 793] is DENIED as moot.
d. Conclusion
The defendants’ Motion in Limine [ECF No. 939] is GRANTED in part as to
Motion in Limine No. 11 and any other conceded motion therein; the remainder of
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the Motion is DENIED without prejudice. The defendants’ Motion to Exclude
Evidence of Plaintiffs’ Allegations of Spoliation [ECF No. 941] is GRANTED. The
plaintiffs’ individual, case-specific Motions in Limine [ECF Nos. 936, 937, 938, 942,
945, 952, 953, 954, 955, 956, 958, 959, 960, 961, 962, 965, 966, 967, 969] are
GRANTED insofar as they are conceded and are otherwise DENIED without
prejudice. The Motion in Limine filed by the plaintiff Kathy Jones at ECF No. 793
was filed in error, therefore, the plaintiff Kathy Jones’s Motion to Withdraw [ECF
No. 904] is GRANTED. The Motion in Limine [ECF No. 793] 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:

February 8, 2017

_________________________________________
JOSEPH R. GOODWIN
UNITED STATES DISTRICT JUDGE

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