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 Preclude Admission of a Document Titled
“Neurology Consultant Meeting” and Other
Suggestions that Depakote Should Have Been Contraindicated
for the Treatment of Epilepsy in Women of Childbearing Years.
(ECF # 118). For the following reasons, the Court grants
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 R.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
purposes of this Motion the Court adopts Defendants'
label of the document in question as Carbone 921. Carbone 921
is a two-page document titled “Neurology Consultant
Meeting, June 2, 2001 Chicago, Illinois.” Of particular
interest in this case is discussion point number four, which
4) Discuss and develop a flowchart for the treatment of adult
epilepsies and co-morbid conditions (eg behavioral
• Not use Depakote in female of child bearing years due
to teratogenic potential. Many not aware of the actual risk.
Dr. Hughes quoted 1-2% risk of neural tube defects, just not
sure with new AEDS.”
concede there is evidence that Defendants' personnel
convened a neurology consultants meeting in Chicago on or
about June 2, 2001. They further acknowledge that they
produced the document in the course of discovery in this
case. However, Plaintiffs have not produced one witness that
has been able to lay a foundation for the document's
admissibility. Defendants contend Plaintiffs are unable to
locate any witness present at the 2001 meeting. Defendants
produced the document when it registered as a
“hit” on the parties' agreed upon search
terms. Defendants oppose the Carbone 921's admissibility
because it is irrelevant and highly prejudicial absent other
evidence establishing the identity of its author and its
context. Defendants argue that Plaintiffs want to introduce
Carbone 921 for the purpose of establishing that a consultant
told Abbott in 2001 that Depakote should not be prescribed
for women of child bearing age. However, this is an
interpretation that requires more context and information
than is available. In order to be admissible, Defendants
contend Plaintiffs must produce information concerning its
accuracy, that it captures the opinion of the author, that it
was paid for by Defendants and was understood by
Defendants' employees who had the ability to act on it.
The sentence fragment containing the alleged warning does not
divulge whether the speaker espoused the view, merely sought
to discuss it as an academic proposition or merely related it
as the practice of the consultant.
contend the document and any related suggestions on the
contraindication of Depakote is irrelevant because Plaintiffs
lack any expert testimony supporting the conclusion that
Depakote should never have been prescribed to women of child
bearing age regardless of the seizure conditions for which
they were being treated.
the fragmented composition of Carbone 921, a jury would be
left to speculate on not only who the author was, but also
the intent of the author. Furthermore, Defendants argue it is
inadmissible hearsay within hearsay. Plaintiffs, in
questioning witnesses on Carbone 921, have regarded it as the
statement of a third party witness and not an employee of
Defendants. Therefore, it cannot be an admission of
Defendants and even if it were, it is inadmissible hearsay.
it a business record as there is no custodian to testify that
it was kept in the ordinary course of business, recorded a
regularly conducted activity or was a record of a regular
practice of Defendants.
oppose Defendants' Motion, contending that they do not
intend to offer Carbone 921 for the truth of the matter
asserted - i.e. -that Defendants failed to warn the medical
community of the risks of birth defects from the use of
Depakote by women of child bearing age. Instead, they seek to
offer it as evidence to show notice; when Defendants knew of
the risks. According to Plaintiffs, Defendants admit their
employees convened the 2001 meeting, admit that one or more
of their employees received the document and that it was
found in Defendants' electronic files. This alone is
sufficient to demonstrate its admissibility.
to Plaintiffs, Carbone 921 is relevant as it directly
addresses the issue that Defendants knew of the risks of
Depakote in 2001. It is also not hearsay because it is