United States District Court, S.D. Illinois
MICHAEL J. REAGAN Chief Judge United States District Court
the Court is AbbVie Inc.'s and Richard Gonzalez's
Motion to Quash Trial Subpoena, filed on January 4, 2018.
(Doc. 59). Plaintiffs filed a response in opposition to the
motion on January 11, 2018. (Doc. 89). AbbVie Inc. and
Richard Gonzalez filed a reply on January 16, 2018. (Doc.
93). On December 8, 2017, after the close of discovery,
Plaintiffs served a subpoena for Richard Gonzalez,
AbbVie's Chief Executive Officer and Board Chairman, to
appear at trial in this Depakote product liability case.
(Doc. 59-2, p. 2). Additionally, within the same subpoena,
Plaintiffs seek the production of Mr. Gonzalez's
personnel file for his tenure at Abbott Laboratories and
AbbVie Inc. along with his current Curriculum
Inc. and Richard Gonzalez (but not Abbott Laboratories) move
to quash the notice, claiming inter alia, that
Plaintiffs seek testimony from Mr. Gonzalez that would be
unfairly prejudicial and run afoul of Fed.R.Evid. 403 and
404. No request for relief is made under Fed.R.Civ.P. 45.
support of their subpoena, Plaintiffs claim Mr. Gonzalez
committed resume fraud by representing he earned a
bachelor's degree in biochemistry from The University of
Houston and a master's degree in biochemistry for The
University of Miami. (Doc. 89, p. 2). There is no dispute
that despite his representations, he does not hold either
degree. Plaintiffs further assert that after Abbott became
aware of the misrepresentations, it continued to perpetuate
them to the public. Finally, Plaintiffs assert that Mr.
Gonzalez was a member of the Pharmaceutical Executive
Management Committee, which they allege was directly
responsible for numerous strategic decisions impacting
Depakote research, marking, and labeling. (Doc. 89, pp.
asked the purpose of the proposed testimony, AbbVie Inc. and
Mr. Gonzalez were sent an explanation by Plaintiffs'
counsel that led them to conclude he was not going to be
asked about Depakote or any product liability issues. (Doc.
59, p. 1) (“Plaintiffs do not even bother trying to
claim that Mr. Gonzalez has any material, relevant
information about Depakote product liability issues - and he
does not.”). This is an oversimplification of
Plaintiffs' letter and inaccurate to the extent it claims
the stated purpose of the testimony completely excludes
testimony about Depakote.
twenty two page response (Doc. 89) with its 385 pages of
supporting documentation leaves no doubt “beating-up
Mr. Gonzalez for resume fraud” is not the primary
reason they seek his testimony. If the Court believed that
this was the sole motivation for the subpoena, it would be
quashed summarily. Instead, Mr. Gonzalez may provide relevant
evidence under Fed.R.Evid. 401, without violating the
contours of Rules 403 and 404.
defendants rely upon evidentiary Rules 403 and 404 (and 401
without specifically saying so), and not Fed.R.Civ.P. 45
regarding subpoenas, the motion to quash is really a motion
to exclude testimony they deem irrelevant and/or overly
prejudicial. As such it seems prudent to look at the motion
to quash in reality as a motion in limine.
undersigned has the power to exclude evidence in
limine only when it is clearly inadmissible on all
potential grounds. Cf. Luce v. United States, 469
U.S. 38, 41 n. 4, 105 S.Ct. 460, 463 n. 4, 83 L.Ed.2d 443
(1984) (federal district courts have authority to make in
limine rulings pursuant to their authority to manage
trials). 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. See Middleby Corp. v.
Hussmann Corp., No. 90 C 2744, 1993 WL 151290, at *1
(N.D. Ill. May 7, 1993); see generally 21 Charles A.
Wright & Kenneth W. Graham, Jr., Federal Practice and
Procedure ¶¶ 5037, 5042 (1977 & Supp.
1993). At this stage of the case the court cannot find that
Mr. Gonzalez' testimony would be “clearly
inadmissible” on all grounds.
of the motion does not necessarily mean that all evidence
contemplated by the Plaintiffs will be admitted at trial.
Denial merely means that without the context of trial, the
Court is unable to determine whether the evidence in question
should be excluded or admitted.
proposed testimony of Mr. Gonzalez is uniquely appropriate
for a “wait-and-see” review by the Court. I want
to see how the trial progresses, the positions taken by the
parties and where this proposed testimony fits-if at all. The
course the evidence takes during this anticipated two week
trial may result in rulings which at first blush appear to be
contradictory or inconsistent. But changing evidence may
require changed rulings. Indeed, a district court may even
adjust its disposition of a motion in limine
“during the course of a trial.” Farfaras v.
Citizens Bank & Trust of Chicago, 433 F.3d 558, 565
only certainty in the Depakote mass action is that these
cases provide unique challenges requiring a patient thorough
review of the issues. Ultimately, Mr. Gonzalez may be
required to testify in Plaintiffs' case-in-chief, in
rebuttal to Defendants' case, in the punitive damages
phase if the case gets that far-or not at all. For planning
should make himself available to testify In East St. Louis,
IL in this case upon twenty-four hours' notice. AbbVie
Inc.'s and Richard Gonzalez's Motion to Quash Trial
Subpoena is DENIED at this time.