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In re Depakote E.R.G.

United States District Court, S.D. Illinois

May 16, 2017

IN RE DEPAKOTE: E.R.G., a minor, by CHRISTINA RAQUEL, individually as parent and next friend of E.R.G., Plaintiffs,


          NANCY J. ROSENSTENGEL, United States District Judge

         Pending before the Court are eleven motions in limine filed by Plaintiffs and seventeen motions in limine filed by Defendant.

         A district court's authority to rule on motions in limine is derived from its inherent authority to control the course of trials. See Luce v. United States, 469 U.S. 38, 41, n. 4 (1984). “[A] motion in limine should be granted only if the evidence sought to be excluded is clearly inadmissible for any purpose.” Noble v. Sheahan, 116 F.Supp.2d 966, 969 (N.D. Ill. 2000). Motions in limine are intended “to avoid the delay and occasional prejudice caused by objections and offers of proof at trial.” Wilson v. Williams, 182 F.3d 562, 566 (7th Cir. 1999). Such motions permit the district court to eliminate evidence “that clearly ought not be presented to the jury, ” because it is inadmissible for any purpose. Jonasson v. Lutheran Child and Family Services, 115 F.3d 436, 440 (7th Cir. 1997). “[T]he party moving to exclude evidence in limine has the burden of establishing that the evidence is not admissible for any purpose.” Euroholdings Capital & Inv. Corp. v. Harris Trust & Sav. Bank, 602 F.Supp.2d 928, 934 (N.D. Ill. 2009).

         Motion in limine rulings “are made before the district court has had a chance to hear all of the evidence or see the trial develop.” Currie v. Cundiff, No. 09-cv-866-MJR, 2012 WL 2254356, at *1 (S.D. Ill. June 15, 2012). As such, these rulings are preliminary and may be revisited based on the court's exposure to the evidence at trial. Id.; United States v. Connelly, 874 F.2d 412, 416 (7th Cir. 1989).

         Some evidentiary submissions cannot be evaluated accurately or sufficiently prior to trial. Jonasson, 115 F.3d at 440. “In these instances, it is necessary to defer ruling until during trial, when the trial judge can better estimate its impact on the jury.” Id. Further, the denial of a motion in limine does not preclude a party from objecting to any evidence at trial or from requesting a limiting instruction. Team Play, Inc. v. Boyer, No. 03-C-7240, 2005 WL 3320746, at *1 (N.D. Ill.Dec. 5, 2005).

         The motions have been thoroughly briefed, and the Court heard from the parties concerning particular questions on certain motions at the final pretrial conference on May 5, 2017. For the reasons set forth below, the Court rules as follows.


         1. Plaintiffs' Motion in limine Nos. 1 and 5-To exclude evidence, argument, or discussions regarding any collateral support Plaintiff E.R.G. received or will receive from sources wholly independent of the Defendant (Doc. 195).

         GRANTED. The collateral source doctrine states that “if an injured party receives some compensation for his injuries from a source wholly independent of the tortfeasor, such payment should not be deducted from the damages which the plaintiff would otherwise collect from the tortfeasor.” Hrnjak v. Graymar, Inc., 4 Cal.3d 725, 729, 484 P.2d 599, 602 (1971). Moreover, gratuitous care is not guaranteed or even legally required after the minor plaintiff turns eighteen.

         2. Plaintiffs' Motion in limine No. 2-To exclude argument that Defendant was prohibited from changing the Depakote label without prior approval from the FDA (Doc. 195).

         GRANTED in part and DENIED in part.

         Any evidence or testimony that Abbott should have implemented a developmental delay warning prior to E.R.G.'s in utero exposure to Depakote is not admissible at trial. See (Case No. 14-CV-847, Doc. 285, pp. 4-10) (containing a detailed analysis on the preemption of label changes related to development delay). As to other evidence that Defendant could have changed the Depakote label via the Change Being Effected process, Defendant will be allowed to explain that the FDA maintains the authority to accept, reject, or request modification of those changes.

         3. Plaintiffs' Motion in limine No. 3-To exclude statements or arguments that mischaracterize evidence or misstate facts central to the present litigation (Doc. 195).

         DENIED. All counsel are bound by the ethical rules of professional conduct, the local rules, and the Federal Rules of Civil Procedure. This issue cannot be properly addressed outside the context of the evidence introduced and the specific objection raised at trial. Accordingly, the Court will take up objections to alleged mischaracterizations of evidence or misstatements of fact on a case-by-case basis during the course of trial.

         4. Plaintiffs' Motion in limine No. 4-To exclude any argument or suggestion that implies that it is the FDA's responsibility to conduct post-market studies of medications or that the Depakote label is what the FDA wanted (Doc. 195).

         GRANTED in part and DENIED in part.

         Statements implying that the FDA had a legal duty to conduct post-market studies of medication will not be allowed. However, whether Defendant followed existing labeling regulations to produce a label “the FDA wanted” will be subject to expert testimony on direct and cross-examination.

         6. Plaintiffs' Motion in limine No. 6-To exclude evidence, argument, and testimony regarding any alleged negligence or fault of Christina Raquel or of Christina Raquel's pre-pregnancy knowledge of risks (Doc. 196).

         GRANTED in part and DENIED in part.

         At the final pretrial conference, Defendant agreed to not argue or introduce evidence that Christina Raquel was negligent or at fault for the alleged injuries to E.R.G. (Doc. 262, pp. 27-31). Defendant does, however, seek to introduce evidence of what Christina Raquel was told regarding the risk of birth defects and what her response was to that knowledge. Plaintiffs assert that this is irrelevant evidence because the dispositive question concerns whether or not her doctors would have prescribed Depakote given the proposed stronger warnings. (Doc. 262, p. 26). While this may be partially true, the prescription decision is not made in a vacuum. If evidence in the case indicates that the prescribing decision was based in part on the conversations, understanding, and preferences of the patient, then the patient's knowledge of the risks and responses to that information are directly connected to the ultimate issue.

         For example, in a recent key prescriber status report, Plaintiffs asked the doctor whether or not he would have shared the alleged increased risk with the patient in making the prescribing decision. Plaintiffs then asked the doctor, if the patient did not want to take Depakote in light of the increased risk, would he have still prescribed it. The doctor stated he would not have prescribed Depakote under those circumstances. See (Case No. 12-CV-52, Doc. 947, pp. 2-3). Such patient involvement in the prescription decision makes the patient's knowledge and responses to the risks and benefits clearly probative to the ultimate question. But this ruling should not be read as a campaign carte blanche to “blame the mother.” Abbott is cautioned that its questioning on this topic will be limited.

         7. Plaintiffs' Motion in limine No. 7; 8; 9-To exclude certain details of Christina Raquel's personal history (Doc. 201)(unsealed)(Doc. 202)(sealed).

         GRANTED in part and DENIED in part.

         Plaintiffs seek to exclude details of Christians Raquel's personal history including evidence of her experience with domestic abuse or violence, her suicidal ideations or attempts, or her family history of mental illness. Abbott has indicated that “[a]t present, Abbott does not intend to present evidence of any alleged neglect or possible abuse that Ms. Raquel experienced as a minor.” (Doc. 249, p. 3).

         At the final pretrial conference, Plaintiffs asserted that beyond this one concession, there is no need to introduce any of this information as “it is undisputed that Ms. Raquel suffers from bipolar disorder.” (Doc. 262, at pp. 33-32). Plaintiffs have clearly indicated, however, that they intend to challenge the appropriateness of the prescription decisions for Ms. Raquel. (Doc. 262, at p. 35) (“Ms. Raquel was prescribed [Depakote] for an off-label purpose….”); see also (Doc. 253). It is also clear that Plaintiffs seek to argue that Ms. Raquel did not need to be on Depakote at all, as evidenced by her post-conception treatment regime. (Doc. 262, at pp. 63-65). The unfortunate nature of Ms. Raquel's disorder necessarily means that the sensitive details of her symptoms, as they are manifest (assuming a cognizant expert adequately connects the conduct with her disorder), will be allowed in at trial. Abbott will only be given a small amount of latitude on these subjects and therefore should use great caution in developing questions.

         10. Plaintiffs' Motion in limine No. 10-To exclude evidence, argument, and testimony regarding any alleged negligence or fault of Christina Raquel's prescribing physicians (Doc. 198)(sealed); (Doc. 197)(unsealed).

         GRANTED. Plaintiffs seek to exclude any evidence, inference, argument, or testimony that Ms. Raquel's prescribing physicians were somehow negligent or at fault with respect to what they did or knew about birth defects associated with Depakote use. (Doc. 197, p. 1). At the final pretrial conference, Defendant articulated that it does not contest the motion. (Doc. 262, at pp. 33-34) (“[O]ur case does not include anything that suggests that the physicians-the four physicians who saw her at El Hogar during this time period and had any interaction with her on her Depakote prescription were at fault in any way.”).

         11. Plaintiffs' Motion in limine No. 11-To admit evidence, testimony, and argument regarding the May 2012 plea agreement, civil settlement, and corporate ...

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