In re Davol, Inc./C.R. Bard, Inc., Polypropylene Hernia Mesh Prods. Liab. Litig., Case No. 2:18-md-2846

510 F.Supp.3d 538

IN RE: DAVOL, INC./C.R. BARD, INC., POLYPROPYLENE HERNIA MESH PRODUCTS LIABILITY LITIGATION

This document relates to: Johns v. CR Bard et al.,

Case No. 2:18-md-2846

Case No. 2:18-cv-01509

United States District Court, S.D. Ohio, Eastern Division.

Signed December 30, 2020

MOTIONS IN LIMINE OPINION & ORDER No. 8

EDMUND A. SARGUS, JR., UNITED STATES DISTRICT JUDGE

Plaintiff Steven Johns and Defendants C.R. Bard, Inc. and Davol, Inc. filed various motions in limine to exclude evidence in this case. Now before the Court are Parts 13, 18, and 19 of Plaintiff's Motion in Limine No. 1 to Exclude Certain Subjects from Evidence at Trial (ECF No. 235), Defendants’ Motion in Limine No. 17 to Exclude Evidence and Argument Concerning Unrelated Investigations, Convictions, Congressional Committee Proceedings and Letters, Settlements, or Alleged Bad Acts (ECF No. 220), and Plaintiff's Motion in Limine No. 8 to Exclude Certain Evidence Related to UCSF (ECF No. 237).

I. Background¹

This case is the first bellwether trial, selected from thousands of cases in this multidistrict litigation, alleging "that defects in defendants’ polypropylene hernia mesh products can lead to complications when implanted in patients, including adhesions, damage to organs, inflammatory and allergic responses, foreign body rejection, migration of the mesh, and infections." (No. 2:18-md-02846, ECF No. 1 at PageID #1–2.)² This includes the Ventralight ST, the device implanted in Plaintiff. The Ventralight ST is a prescription medical device used for hernia repairs. 2020 WL 5223363, at *1. The Food and Drug Administration ("FDA") cleared it for use through the premarket notification § 510(k) process in 2010 and later cleared it for use with the Echo Positioning System in 2011. It is a multicomponent device made of a mesh, which consists of polypropylene, polyglycolic acid ("PGA") fibers, and a bioresorbable coating called "Sepra Technology" ("ST"). The ST-coated side of the mesh is placed against organs, such as the bowels, while the uncoated polypropylene side is placed against the fascia because the uncoated side maximizes tissue attachment and thus supports the hernia repair. Id. at *1–2.

Plaintiff brings this action to recover for injuries sustained as a result of the implantation of Defendants’ allegedly defective Ventralight ST device. Plaintiff claims that Defendants knew that polypropylene is unsuitable for permanent implantation in the human body and that the PGA fibers created an increased inflammatory response. Id. at *4. The crux of Plaintiff's claims is that the ST coating on Ventralight ST devices resorbs too quickly. This leads to the exposure of bare polypropylene to internal organs and tissues, increasing the risk of potential complications. Plaintiff alleges that this occurrence led to omental adhesions after his laparoscopic hernia repair surgery in 2015. The adhesions were diagnosed during a subsequent laparoscopic surgery in October 2016 by Plaintiff's implanting surgeon. Id. at *5.³ After summary judgment, the following claims remain for trial: design defect, under negligence and strict liability theories; failure to warn, under negligence and strict liability theories; breach of express warranty; breach of implied warranty; breach of implied warranty of merchantability; negligent misrepresentation; and punitive damages. Id. at *6–25. Now, various motions in limine and other evidentiary motions are ripe for adjudication.

This opinion addresses three motions in limine: Plaintiff's Motion in Limine No. 1, specifically Parts 13, 18, and 19 (ECF No. 235 at PageID #12918–20), Defendants’ Motion in Limine No. 17 (ECF No. 220), and Plaintiff's Motion in Limine No. 8 (ECF No. 237).

II. Legal Standards

"Neither the Federal Rules of Evidence nor the Federal Rules of Civil Procedure explicitly authorize a court to rule on an evidentiary motion in limine. " In re E.I. du Pont de Nemours & Co. C-8 Pers. Injury Litig. , 348 F. Supp. 3d 698, 721 (S.D. Ohio 2016). The practice of ruling on such motions "has developed pursuant to the district court's inherent authority to manage the course of trials." Luce v. United States , 469 U.S. 38, 41 n.4, 105 S.Ct. 460, 83 L.Ed.2d 443 (1984). "The purpose of a motion in limine is to allow a court to rule on issues pertaining to evidence prior to trial to avoid delay and ensure an evenhanded and expedient trial." In re E.I. du Pont , 348 F. Supp. 3d at 721 (citing Ind. Ins. Co. v. Gen. Elec. Co. , 326 F. Supp. 2d 844, 846 (N.D. Ohio 2004) ). However, courts are generally reluctant to grant broad exclusions of evidence before trial because "a court is almost always better situated during the actual trial to assess the value and utility of evidence." Koch v. Koch Indus., Inc. , 2 F. Supp. 2d 1385, 1388 (D. Kan. 1998) ; accord Sperberg v. Goodyear Tire & Rubber Co. , 519 F.2d 708, 712 (6th Cir. 1975). Unless the moving party proves that the evidence is clearly inadmissible on all potential grounds—a demanding requirement—"evidentiary rulings should be deferred until trial so that questions of foundation, relevancy and potential prejudice may be resolved in proper context." Ind. Ins. Co. , 326 F. Supp. 2d at 846 ; see also Koch , 2 F. Supp. 2d at 1388 ("[A] court is almost always better situated during the actual trial to assess the value and utility of evidence."). The denial, in whole or in part, of a motion in limine does not give a party license to admit all evidence contemplated by the motion; it simply means that the Court cannot adjudicate the motion outside of the trial context. Ind. Ins Co. , 326 F. Supp. 2d at 846.

Relevant evidence is "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Fed. R. Evid. 401. "Irrelevant evidence is" inadmissible. Fed. R. Evid. 402. A court may exclude relevant evidence under Federal Rule of Evidence 403 "if its probative value is substantially outweighed by a danger of ... unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence." Fed. R. Evid. 403. Evidentiary rulings are made subject to the district court's sound discretion. Frye v. CSX Trans., Inc. , 933 F.3d 591, 598 (6th Cir. 2019) ; see also Paschal v. Flagstar Bank , 295 F.3d 565, 576 (6th Cir. 2002) ("In reviewing the trial court's decision for an abuse of discretion, the appellate court must view the evidence in the light most favorable to its proponent, giving the evidence its maximum reasonable probative force and its minimum reasonable prejudicial value.").

III. Analysis

A. Plaintiff's Motion in Limine No. 1

In this motion, Plaintiff argues that twenty subjects should be excluded at trial. (ECF No. 235.) During the hearing, the parties confirmed that on almost all subjects, they had reached an agreement, leading the Court to grant Plaintiff's motion in limine as to seventeen of the twenty parts. (ECF No. 311 at PageID #16824–37.) The Court reserved judgment on Parts 13, 18, and 19 and ordered supplemental briefing. In re Davol, Inc./C.R. Bard, Inc., Polypropylene Hernia Mesh Prods. Liab. Litig. , Nos. 2:18-md-2486, 2:18-cv-01509, 2020 WL 6605576, at *1 (S.D. Ohio Sept. 11, 2020). The briefing is complete.

1. Part 13

In Part 13 of his motion, Plaintiff argues that any evidence about Defendants’ actions for societal good either by manufacturing devices or by performing charitable acts should be excluded. (ECF No. 235 at PageID #12918.) This part of the motion includes refence to Defendants’ devices as "lifesaving," COVID-19 related endeavors, and charitable acts, including a donation of devices to Dr. Jensen. (Id. at PageID #12918–19.) Motions in Limine Opinion and Order No. 7 addresses the characterization of Defendants’ devices as "lifesaving." In re Davol, Inc./C.R. Bard, Inc., Polypropylene Hernia Mesh Prods. Liab. Litig. , Nos. 2:18-md-2486, 2:18-cv-01509, 505 F.Supp.3d 770, 782–83, (S.D. Ohio Dec. 3, 2020). And Defendants will be permitted to explain briefly what their companies do and produce, which may include some reference to COVID-19 related efforts (if they are significant and form a large part of Defendants’ business) or the fact that their devices are designed to be useful, treat medical conditions, etc. (ECF No. 311 at PageID #16836–37.) As Defendants correctly point out, parties are generally allowed to describe the nature of their business so long as it will assist the jury in understanding the factual issues in the case. E.g. , In Re Bard IVC Filters Prods. Liab. Litig. , Nos. MDL 15-02641-PHX DGC, CV-16-00474-PHX-DGC, 2018 WL 934795, at *2 (D. Ariz. Feb. 15, 2018) ; Knight v. Boehringer Ingelheim Pharms., Inc. , 323 F. Supp. 3d 837, 854 (S.D.W. Va. 2018). Therefore, Plaintiff's motion is denied with regard to these aspects.

This leaves evidence of Defendants’ "good acts in the community and relationship with surgeons," including their device donation to Dr. Jensen for his mission trip. (ECF No. 257 at PageID #13602.)

i. Good acts

Evidence of Defendants’ good or charitable acts in the community fall within a different category than flattering background information about Defendants. Rule 404(a) prohibits character or propensity evidence, "[e]vidence of a person's character or character trait" used "to prove that on a particular occasion the person acted in accordance with the character or trait." Fed. R. Evid. 404(a). Rule 404(b) prohibits evidence of other acts "to show that on a particular occasion the person acted in accordance with the character." Fed. R. Evid. 404(b)(1). Evidence of Defendants’ charitable acts that are unrelated to the development of its devices is propensity evidence, attempting to induce the jury to conclude that because Defendants have a good corporate character, it is unlikely that they behaved poorly in manufacturing and marketing the...