United States District Court, N.D. Ohio, Eastern Division
Z.H. by and through KEVIN HUTCHENS and CHRISTIN HUTCHENS, individually, and as parents and next friends of Z.H. Plaintiffs,
ABBOTT LABORATORIES, INC. and ABBVIE, INC. Defendant.
CHRISTOPHER A. BOYKO United States District Judge
matter is before the Court on Defendants' Motion in
Limine to Exclude References to Off-Label Marketing or
Promotion (ECF # 105) and Defendants' Motion to Exclude
References to Scientific and Medical Data Relating to
Injuries other Than Those Alleged by Plaintiffs and
Post-Dating the Minor Plaintiff's June 2003 Birth. (ECF #
100). For the following reasons, the Court grants, in part,
Defendants' Motion on off-label use and denies
Defendants' Motion on post-birth data.
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).
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 F.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.”
Owner-Operator 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).
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
Marketing and Promotion
seek to exclude any argument, testimony and evidence
regarding Defendants' alleged off-label
promotional/marketing activities and materials. Christin
Hutchens was prescribed Depakote by Dr. Foldvary to treat her
for an FDA approved on label use; to control her seizures.
There is no evidence any off-label promotional or marketing
materials affected her decision to prescribe Depakote to
Christin. Defendants contend that any testimony concerning
its off-label marketing and promotion of Depakote is
irrelevant and could simply confuse the jury. Its prejudicial
impact greatly outweighs any relevance and should therefore,
be excluded under Fed.R.Evid. 401 and 403.
opposing Defendants' Motion, Plaintiffs argue that
Defendants' off-label marketing and promotion of Depakote
is relevant to show Defendants' disregard for the safety
of the public, thus, it is relevant to Plaintiffs'
punitive damages claim.
Court agrees with Defendants that any testimony regarding
Defendants' marketing and promotion of Depakote for
off-label uses is irrelevant and, even if relevant, its
prejudicial value outweighs its probative value. Christin
Hutchens was not prescribed Depakote for an off-label use
therefore, any such testimony is irrelevant to
Plaintiffs' failure to warn claim. The Court has already
allowed Plaintiffs to proffer evidence and testimony
regarding marketing and promotion of Depakote as an AED.
the Court excludes any evidence or testimony on Depakote'
promotion and marketing of Depakote for off-label uses for
Plaintiffs' case-in-chief. The Court may revisit the
issue of promotion and marketing of Depakote for off label
use as it relates to Plaintiffs' punitive damage claim,
however, the only information to be considered will be
materials and promotions prior to Z.H.'s birth.
other than those suffered by Plaintiffs
move the Court to exclude post-birth AED risk data about
injuries other than those suffered by Z.H. Defendants argue
any such evidence is irrelevant to causation in this case
because it has no bearing on the actual harm suffered by
Plaintiffs for which they seek to recover.
oppose the Motion contending that post birth AED risk data is
relevant to causation because it relates directly to
Defendants ongoing duty to study and warn of all Depakote
risks. Post-birth risk data is relevant to what Defendants
knew or should have known about the risks of Depakote and
both the Illinois and Southern District of Ohio courts that
have held Depakote trials have determined the information is
relevant. Plaintiffs allege that because Depakote's
formulation has not changed since it was introduced,
Plaintiffs' expert may rely on such evidence to opine on
what Defendants should have known at the ...