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In re: MDL Prempro Products Liability Litigation

December 27, 2006

IN RE: MDL PREMPRO PRODUCTS LIABILITY LITIGATION
HELENE RUSH PLAINTIFF
v.
WYETH, ET. AL. DEFENDANTS



The opinion of the court was delivered by: Wm. R.Wilson, Jr. United States District Judge

ORDER

Pending are Plaintiff's seventy-four Motions in Limine (Doc. No. 303). Defendant has responded (Doc. No. 333). Also pending are Defendant's Omnibus Motions in Limine (Doc. No. 291), Motion in Limine 21 (Doc. No. 364), and Motion in Limine 22 (Doc. No. 366). Plaintiff has responded.*fn1 Based on the findings of fact and conclusions of law made during the October 25-26, 2006 hearing and below, Plaintiff's Motions in Limine and Defendant's Omnibus Motions in Limine are GRANTED IN PART and DENIED IN PART. Defendant's Motion in Limine 21 is DENIED and Motion in Limine 22 is GRANTED.

A. PLAINTIFF'S MOTIONS IN LIMINE

1. Plaintiff's Motion in Limine No. 1 to Bar Arguments Alleging an Impact on Wyeth's Business is unopposed, and, therefore, GRANTED.

2. Plaintiff's Motion in Limine No. 2 to Bar Reference to "Good Acts" and Products Not at Issue is GRANTED IN PART and DENIED IN PART. Wyeth will be permitted to put on very brief evidence as to how long it has been in business, how many employees it has, and generally "what it does for a living." The issues that Wyeth described in points 4 and 5 seems to "open[] the door to Plaintiff's evidence which would put such conduct into context."*fn2 Unless Wyeth wants to risk opening doors, I think it should be very conservative in presenting an overview of Wyeth. And this approach will help insure that we confine the trial to the specific issues presented by the pleadings in this case.

3. Plaintiff's Motion in Limine No. 3 to Bar Argument that FDA Regulation Prohibited Wyeth from Making Label Changes Without Prior Agency Approval is DENIED. Wyeth can concede that the FDA doesn't preclude it, but point out that the FDA discourages changes without prior approval (as I understand it this is the truth of the matter).

4. Plaintiff's Motion in Limine No. 4 to Bar Testimony or Argument Regarding the "Preamble" and Any Statement by the FDA Regarding Preemption is DENIED because the issue is better addressed during trial.

5. Plaintiff's Motion in Limine No. 5 to Bar Argument or Reference to the Report of Class Action Expert Ronald Ross is unopposed, and, therefore, GRANTED.

6. Plaintiff's Motion in Limine No. 6 to Bar Opinion Testimony from Wyeth Employees and Former Employees That They Are Not Qualified to Offer, Which Has Not Been Previously Disclosed, or Which Lacks Appropriate Support under Daubert is DENIED as MOOT since Plaintiff was permitted to re-depose Justin Victoria, James Pickar, Ginger Constantine, and Jeanne Marie Durocher.

7. Plaintiff's Motion in Limine No. 7 to Bar Speculation on Other Causes of Breast Cancer That Have No Reliable Scientific Support is DENIED. However, the parties are directed to attempt to agree on a limiting instruction describing known risk factors and biological plausibility.

8. Plaintiff's Motion in Limine No. 8 to Bar Testimony Based on New WHI Data or Further Analysis of Such Data is GRANTED based on the self-imposed limitations expressed by the parties during the hearing referenced above.

9. Plaintiff's Motion in Limine No. 9 to Bar Testimony by Wyeth Employees, Witnesses, Experts, or Counsel Regarding Their Personal Use of Premarin or Prempro is unopposed, and, therefore, GRANTED.

10. Plaintiff's Motion in Limine No. 10 to Bar Reference to the Fact That Dr. Kozlowski or Any Other Witnesses, Apart from Plaintiff, Has Had or Has Breast Cancer is GRANTED.

11. Plaintiff's Motion in Limine No. 11 to Bar Motion to Prohibit Wyeth from Advertising or Otherwise Engaging in Pretrial Publicity is DENIED as MOOT because my rulings regarding media in the Reeves case equally apply to this case.*fn3 Additionally, the November 27, 2006 Order addresses this topic.*fn4

12. Plaintiff's Motion in Limine No. 12 to Bar Evidence of Benefits from a Collateral Source is unopposed, and, therefore, GRANTED.

13. Plaintiff's Motion in Limine No. 13 to Bar Reference to "Lawyer-made" Lawsuits is GRANTED, unless Plaintiff opens the door by discussing what exactly she saw in the newspaper in 2004.

14. Plaintiff's Motion in Limine No. 14 to Bar No Comment, Inference, Evidence, Testimony, or Document Attempting to Paint the Plaintiff's Attorneys in a Negative Light, Including

A. Part 14(a) -- is MOOT based on my ruling on Plaintiff's Motion in Limine 11.

B. Part (b)-(e) -- see my ruling on Plaintiff's Motion in Limine 13.

C. Part 14(f) -- is unopposed, and, therefore, GRANTED.

D. Part 14(g)-(j) -- these sub-parts are GRANTED as to both parties.

15. Plaintiff's Motion in Limine No. 15 to Bar References to the Expense Incurred by Wyeth for this Litigation is GRANTED.

16-17 Plaintiff's Motion in Limine Nos. 16 and 17 to Bar Reference to Risks of Drugs Unrelated to Defendant Wyeth and Reference to Risk of Normal Activities is DENIED with the caveat that Wyeth should use sound discretion in making presentations in this area.

18. Plaintiff's Motion in Limine No. 18 to Bar Reference to Bonus or Windfall is unopposed, and, therefore, GRANTED; but Wyeth will be permitted to appropriately describe the nature of punitive damages. I believe that both the 8th Circuit and Arkansas Model Jury Instructions on punitive damages say what needs to be said about this point.

19. Plaintiff's Motion in Limine No. 19 to Bar References to the "Deep Pocket" Defendant is unopposed, and, therefore, GRANTED.

20. Plaintiff's Motion in Limine No. 20 to Bar References to Witnesses Equally Available to All Parties is DENIED, but may be reviewed before closing argument so that Wyeth can be required to put a fine point on it. In some instances it is improper to refer to non-called witnesses; but on the other hand, in some instances it is entirely proper. I assume that this problem would arise only in summation.

21. Plaintiff's Motion in Limine No. 21 to Bar Mention of Probable Testimony of Absent Witnesses is DENIED because the issue can be better addressed during trial.

22. Plaintiff's Motion in Limine No. 22 to Bar Mention That Plaintiff Did or Did Not Sue Other Potential Parties is DENIED, because I still have this issue under cogitation. I'm inclined to grant the motion under 403 (more confusing than probative). My mind is still unquiet on the point.

23. Plaintiff's Motion in Limine No. 23 to Bar Reference to Alleged Misconduct or Criminal Activity is DENIED as MOOT because Plaintiff contends that neither she nor her family members have any criminal history. If something develops, the parties may again bring up this issue out of the hearing of the jury.

24. Plaintiff's Motion in Limine No. 24 to Bar Mention of Oral Contraceptive Use or Extramarital Affair is GRANTED. Remoteness seems to me to be the key factor as to the oral contraceptives. Wyeth concedes the motion as it relates to any mention of Plaintiff's extramarital affair.

25. Plaintiff's Motion in Limine No. 25 to Bar Reference to Helene Rush's Childhood Abuse and Unrelated Depression and ...


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