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Z.H. v. Abbott Laboratories, Inc.

United States District Court, N.D. Ohio, Eastern Division

January 10, 2017

Z.H. by and through KEVIN HUTCHENS AND CHRISTIN HUTCHENS, individually, and as parents and next friends of Z.H., Plaintiffs,
v.
ABBOTT LABORATORIES, INC. And ABBVIE, INC., Defendants.

          ORDER

          CHRISTOPHER A. BOYKO, UNITED STATES DISTRICT JUDGE

         This matter comes before the Court upon Defendants' Motions in Limine (ECF DKT #107, #109 and #110).

         I. INTRODUCTION

         Plaintiff Z.H. is a minor child who suffers from serious birth defects. Z.H.'s injuries were allegedly caused by in utero exposure to Depakote, an antiepileptic drug prescribed to his mother, Christin Hutchens. Plaintiffs allege that Defendants, Abbott Laboratories, Inc. and Abbvie, Inc. (“Abbott”), failed to provide adequate warnings regarding the risk of birth defects associated with Depakote use.

         II. LAW AND ANALYSIS

         Motions in Limine

         “Motions 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).

         The 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).

         Fed.R.Evid. 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 admissible.”

         With these precepts in mind, and upon consideration of the parties' briefs and arguments, the Court rules as follows:

         DEFENDANTS' ABBOTT LABORATORIES INC. AND ABBVIE INC.'S MOTION IN LIMINE (NO. 8) TO EXCLUDE TESTIMONY, EVIDENCE OR OTHER REFERENCES TO ABBOTT'S PROMOTION OR MARKETING OF DEPAKOTE AS A “FIRST-LINE” DRUG (ECF DKT #107)

         Certain antiepileptic drugs (“AED's”) may be preferred by prescribers as “first-line” treatments for patients suffering from a type or combination of types of seizures. If the “first-line” AED's do not adequately control seizures in a given patient, the prescriber may try another “first-line” drug or move on to “second-line” therapies, etc. Depakote was promoted as a “first-line” option for some patients. However, in Mrs. Hutchens' case, Depakote was the eighth and not the first AED prescribed to control her seizures. So, Defendants argue that the whole discussion of Depakote as a “first-line” therapy is irrelevant and will confuse and distract the jury in this case.

         Plaintiffs counter that Abbott's primary sales and marketing message from 1986 through 2008 was promoting Depakote as a “first-line” therapy, a “first choice” for doctors, specifically for female patients of childbearing years. Although Mrs. Hutchens' treating physicians did not prescribe Depakote as their “first choice” for her treatment, Plaintiffs believe that Abbott's promotional materials are relevant to what Abbott knew and when it knew about the extent of the birth defect risks and the proper use in women of childbearing years.

         In keeping with the previous ruling on Abbott's promotional, sales and marketing evidence (ECF DKT #198 at 9), the Court finds that evidence of Abbott's promotion of Depakote as a “first-line” drug, prior to Z.H.'s ...


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