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U.S. v. CAPUTO

March 11, 2004.

UNITED STATES OF AMERICA
v.
ROSS A. CAPUTO and ROBERT M. RILEY



The opinion of the court was delivered by: RUBEN CASTILLO, District Judge

MEMORANDUM OPINION AND ORDER

This is the third opinion we have issued in this pending criminal case, hi our earlier opinions we denied pretrial efforts to dismiss the indictment and to obtain a bill of particulars. See United States v. Caputo, 288 F. Supp.2d 923 (N.D. Ill. 2003) (addressing the bill of particulars); United States v. Caputo, 288 F. Supp.2d 912 (N.D. Ill. 2003) (addressing the motion to dismiss). The facts surrounding these charges are adequately summarized in our earlier opinion addressing the motion to dismiss and will not be needlessly repeated herein.

This opinion addresses the Government's motion in limine presently before the Court. (R. 75-1.) The Government seeks to prohibit Defendants Ross Caputo and Robert Riley ("Defendants") from arguing that they did not need to file a premarket notification, known as a 510(k) submission, with the Food and Drug Administration ("FDA") in order to market a modified version of a FDA-cleared sterilizer.*fn1 The Government further seeks to prohibit Defendants from arguing that the marketed sterilizer was safe and effective or that they had a reasonable belief that it was safe and effective. For the reasons provided below, we grant the Page 2 Government's motion in limine. (R. 75-1.) We definitively rule that Defendants cannot argue that they did not need to file a premarket notification because the modified sterilizer was as safe and effective as the FDA-cleared sterilizer. We also rule that they cannot argue that they had a good faith belief that the modified sterilizer was as safe and effective as the FDA-cleared sterilizer.

  RELEVANT FACTS

  Defendants were directors of Abtox, Inc.: Caputo was President and Chief Executive Officer and Riley was Vice-President of Regulatory Affairs. Abtox manufactured a medical device, the Plazlyte Sterilization System, that sterilized medical devices at low temperatures in a gas plasma. Under the Federal Food, Drug, and Cosmetic Act ("FDCA"), 21 U.S.C. § 301-97, a medical device manufacturer must obtain premarket approval or premarket clearance from the FDA before marketing a medical device. A manufacturer must file a 510(k) submission with the FDA to obtain premarket clearance, and the FDA will grant premarket clearance if it determines that the device is substantially equivalent to a device that is currently on the market. Finally, a manufacturer needs to file an additional 510(k) submission in order to market a modified version of a medical device that is or has been in commercial distribution if the modifications "could significantly affect the safety or effectiveness of the device." 21 C.F.R. § 807.81(a)(3).*fn2

  The FDA granted Abtox premarket clearance to market the Plazlyte sterilizer after determining that it was substantially equivalent to ethylene oxide sterilizers that were already on Page 3 the market. (R. 84, Gov't's Reply, Ex. 1, FDA Letter.) After marketing the modified sterilizer, Abtox filed at least four 510(k) submissions seeking premarket clearance to market that sterilizer. (R. 80, Defs.' Opp'n at 10; R. 84, Gov't Reply, Exs. 3-6.) In these 510(k) submissions, Abtox described the modifications to the FDA-cleared sterilizer as minor. (R. 80, Defs.' Opp'n, Ex. 7, FDA Letter at 1.) The FDA found each submission deficient and informed Abtox that it "considers the design modifications significant requiring a new 510(k) submission" and that it could not market the modified sterilizer without FDA approval. (Id. at 1, 24.) Defendants continued to market the modified sterilizer, but allege that they did so pursuant to a FDA policy that permits manufacturers to market modified devices pending the resolution of any modification issues. (Id., Ex. 4, Seizure Approval Letter at 3.)

  LEGAL STANDARDS

  The Court's power to exclude evidence in limine derives from the Court's authority to manage trials. Luce v. United States, 469 U.S. 38, 41 n. 4 (1984). A motion in limine should only be granted where the evidence is clearly inadmissible for any purpose. Basile v. Ondrato, No. 02-C-3795, 2003 WL 22953340, at *1 (N.D. Ill. Dec. 12, 2003). "Unless evidence meets this high standard, evidentiary rulings should be deferred until trial so that questions of foundation, relevancy and potential prejudice may be resolved in proper context." Hawthorne Partners v. AT&T Tech., Inc., 831 F. Supp. 1398, 1400 (N.D. Ill. 1993). If the Court grants a motion in limine we should specify whether the ruling is conditional or definitive, Wilson v. Williams, 182 F.3d 562, 567 (7th Cir. 1999), but the Court may nonetheless, in the exercise of sound judicial discretion, amend an in limine ruling if warranted, Luce, 49 U.S. at 41-42. Page 4

  ANALYSIS

  The Government seeks to prohibit Defendants from arguing that Abtox did not need to file a 510(k) submission in order to market the modified sterilizer. The Government further seeks to prohibit them from arguing that the marketed sterilizer was safe and effective or that they had a reasonable belief that it was safe and effective. While the Government did not differentiate its various arguments, we derived three distinct arguments from the Government's memorandum: (1) this evidence is precluded by the FDA's determination that Defendants needed to file a new 510(k) submission; (2) this evidence is not relevant; and (3) even if this evidence were relevant, its probative value is substantially outweighed by the danger of confusing the issues. We address each argument in turn.

 I. Issue Preclusion

  It is undisputed that the FDA concluded that Abtox needed to file a new 510(k) submission in order to legally market the modified sterilizer. (R. 80, Defs.' Opp'n, Ex. 7, FDA Letter at 1, 24.) The Government asserts that issue preclusion relieves it of the burden of proving at trial that a new 510(k) submission was required. Evidence or arguments that contradict a factual determination made by an agency are precluded if: (1) the original action was properly before the agency; (2) the same disputed issue of fact was before the agency as is before the court; (3) the agency acted in a judicial capacity; and (4) the parties had an adequate opportunity to litigate the issues before the agency. Meyer v. Rigdon, 36 F.3d 1375, 1379-80 (7th Cir. 1994). Under this test, any arguments or evidence that Abtox did not need to file a new 510(k) submission are not precluded by the FDA's determination. The FDA did not act in a judicial capacity when it determined that a new 510(k) submission was required. The FDA simply Page 5 reviewed Abtox' 510(k) submissions and concluded that Abtox needed to file a new 510(k) submission. Defendants, therefore, are not precluded from arguing that Abtox did not need to file a new 510(k) submission in order to legally market the modified sterilizer.*fn3

 II. Federal Rule of Evidence 402: Relevance

  The Government next argues that the safety and effectiveness of the marketed sterilizer are not relevant because, among other reasons, the FDA-cleared sterilizer was never in commercial distribution. Under 21 C.F.R. § 807.81, whether the FDA-cleared sterilizer was in commercial distribution determines when a manufacturer is required to file a 510(k) submission.*fn4 Page 6 Subsections 807.81(a)(1) and 807.81(a)(2) together explain when a 510(k) submission is required for a device that is "being introduced into commercial distribution for the first time," and subsection 807.81(a)(3) explains when a 510(k) submission is required when a "device is one that the person currently has in commercial distribution or is ...


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