United States District Court, D. Arizona
G. Campbell United States District Judge
parties have filed various motions in limine
(“MIL”) in advance of the Booker bellwether
trial. This order will rule on some of those motions.
Defendants' MIL No. 4 (Photograph of Michael
wish to introduce a photograph of Michael Randall, Bard's
G2 Platinum project leader, flipping off the camera.
Plaintiffs contend that the photograph is relevant because it
was included in an internal Bard Powerpoint on the G2
Platinum. Bard asserts that the photograph was included in
the Powerpoint presentation as an internal joke. Plaintiffs
admit that “we don't know to whom this gesture was
directed” (Doc. 9911 at 3), but they argue that it
nonetheless is relevant as an indication of Bard's
cavalier corporate culture.
even Plaintiffs don't know to whom the gesture was
directed, the Court cannot conclude that it is relevant to
any claims or defenses in this case. And even if the
photograph were to have some marginal relevancy, such
relevancy is substantially outweighed by the danger of unfair
prejudice. Fed.R.Evid. 403. Even Plaintiffs admit that
“the middle finger picture is indeed
inflammatory.” The motion in limine (Doc. 9865) is
granted. The photograph will not be admitted.
Defendants' MIL No. 5 (Dr. Kinney's work for
seek to exclude evidence that Plaintiffs' expert witness,
Dr. Thomas Kinney, was an expert witness for Bard in two
prior IVC filter cases and was a paid consultant to Bard for
several years. Doc. 9868. Plaintiffs argue that this prior
work is relevant because it “provides context for his
opinions and his motivation to become an expert witness for
the Plaintiffs, ” shows Bard's “lack of
transparency with doctors and consultants, and the
seriousness of the problems with its IVC filters, ” and
shows a “corporate culture within Bard that disregarded
concerns of consultants and patient safety.” Doc. 9914
Court is not persuaded by Plaintiffs' arguments. In
opposing Defendants' motion to disqualify Dr. Kinney on
the basis of his prior work for Bard, Plaintiffs argued
vigorously that the prior work had nothing to do with this
lawsuit. Plaintiffs asserted that “[n]one of [Dr.
Kinney's consulting] work related to the issues
discussed, subject matter, or bases of the opinions rendered
in his report in this MDL.” Doc. 5803 at 6, n.2.
Plaintiffs argued that his work for Bard from 2005 to 2008
had “absolutely nothing to do with the issues and
causes of action in this MDL.” Id. at 9. And
they claimed that his work as an expert witness for Bard did
not “even remotely relate to the issues and subject
matter of Dr. Kinney's expert report in this MDL.”
Id. at 3. Given these strenuous assertions, the
Court cannot accept Plaintiffs current argument that Dr.
Kinney's work for Bard provides “context for his
opinions, ” shows “a lack of transparency”
with respect to the issues in this case, or shows a corporate
culture of disregard for patient safety. Doc. 9914 at 2-3. By
Plaintiffs' own declaration, his prior work for Bard is
simply not relevant to the issues in this case. The Court
will grant Defendants' motion in limine.
Doc. 9868. Plaintiffs may not question Dr. Kinney about his
prior work for Bard, and should instruct him not to mention
it in his testimony. If Plaintiffs believe Defendants make
the prior work relevant by the nature of their cross
examination at trial, they can raise that issue with the
Court outside the hearing of the jury.
Plaintiffs' MIL No. 2 (benevolent activities).
seek to exclude evidence and argument relating to (1) any
alleged benevolent activities such as charitable acts or
services Bard provides to patients or society, (2) Bard's
“good character” in general, and (3) the quality
and intent of its workforce as a whole. Doc. 9866. In
response, Defendants state that they will not present
evidence that they “engaged in benevolent activities
such as providing scholarships or making charitable
contributions.” Doc. 10053 at 1 n.1. Defendants do
intend, however, to present evidence regarding the nature,
quality, and usefulness of their products, the
conscientiousness of their employees, references to their
mission statement, and the fact that their products are
designed to promote health and save lives. Id. at
2-3. Defendants assert that such evidence is relevant
background information and is also necessary to rebut
Plaintiffs' punitive damages claim that Defendants acted
in a willful, malicious, and reckless manner.
Court concludes that some evidence regarding the nature of
Defendants' business is relevant to the jury's
understanding of the issues in this case. The Court also
concludes that Defendants' must be permitted to rebut
Plaintiffs' themes, stated repeatedly throughout briefing
on the expert motions, that Defendants knowingly disregarded
patient safety, used patients for experimentation, and placed
profits over safety.
Plaintiffs' punitive damages arguments does not mean,
however, that Defendants can present irrelevant evidence or
try this case on the basis of corporate character.
See Fed. R. Evid. 404(a). The Court will draw
appropriate lines on the basis of objections made during
trial. Plaintiffs' motion in limine (Doc. 9866) is
Plaintiffs' MIL No. 5 (evidence not produced in complaint
ask the Court to exclude evidence and argument relating to
failure rates, complication rates, percentages, or
comparative analysis of any injuries that were not produced
to Plaintiffs during discovery. Doc. 9870. Defendants assert
that all such information was produced. Doc. 10060.
Plaintiffs' motion in limine (Doc. 9870) is
denied as moot. If ...