United States District Court, D. Rhode Island
IN RE LOESTRIN 24 FE ANTITRUST LITIGATION THIS DOCUMENT RELATES TO All Actions MDL No. 2472
ORDER ON PENDING MOTIONS IN LIMINE
William E. Smith District Judge.
Plaintiffs'
Omnibus Motion in Limine, ECF No. 1301, is GRANTED
IN PART AND DENIED IN PART, as follows:[1]
•
Plaintiffs' Motion in Limine No. 2 is GRANTED IN
PART AND DENIED IN PART. It is GRANTED to the extent that
Defendants attempt to have the jury decide a legal issue. It
is DENIED to the extent Plaintiffs attempt to hide their
identities. The Court intends to explain to the jury the
identity of the parties and that the various retailers are
litigating pursuant to assignments. With respect to the
validity of the assignments, the Court is unclear why this
issue is being raised only now, on the eve of trial, if, as
Defendants say, it implicates the threshold issue of
standing. Moreover, it appears that this may be a question of
law and not a fact issue for the jury. Therefore, the Court
will defer ruling on the issue for now and it will not be
part of Phase 1 of the trial. If Plaintiffs prevail in Phase
1, the Court will take the issue up in Phase 2 and/or 3, if
at all.
•
Plaintiffs' Motion in Limine No. 3 is GRANTED IN
PART AND DENIED IN PART. It is DENIED as moot in light of the
ruling on Plaintiffs' Motion in Limine No. 2. It
is GRANTED to the extent that Defendants may seek to
introduce evidence of absent class members to relitigate
class certification issues or to disparage Plaintiffs'
claims by arguing the absence of other class members suggests
their claims lack merit. However, as noted in the Court's
other rulings, the Court intends to explain to the jury who
the parties are, and some evidence of the structure of the
pharmaceutical industry may necessarily involve discussion of
who the large wholesalers are.
•
Plaintiffs' Motion in Limine No. 6 is DENIED as
moot in light of the Court's ruling on Plaintiffs'
Motion in Limine No. 2. Generally, the term
“Purchasers” may be a useful shorthand, but the
Court intends to explain who is who to the jury at the onset
of trial.
•
Plaintiffs' Motion in Limine No. 8 is GRANTED IN
PART AND DENIED IN PART as follows. Generally, the parties
should refer to the drugs at issue as Loestrin 24, brand
Loestrin 24, generic Loestrin 24, Minastrin 24, brand
Minastrin 24, and generic Minastrin 24. Use of pejorative
terms will not be permitted; however, occasional use of terms
like “innovation” and “copycat” are
not problematic in the proper context.
•
Plaintiffs' Motion in Limine No. 9 is DENIED as
moot.
•
With respect to Plaintiffs' Motion in Limine No.
10, the Court defers ruling on this motion until it reviews
the deposition designations. Generally, the Court prefers to
show testimony all at once, even if it exceeds the scope of
direct. If the Court thinks the “outside the
scope” testimony will confuse or distract the jury, it
may require that it be played during Defendants' case.
•
Plaintiffs' Motion in Limine No. 11 is GRANTED
IN PART AND DENIED IN PART. It is GRANTED to the extent that
Defendants may seek to introduce inadmissible character
evidence (which Defendants say they do not intend to do); it
is DENIED to the extent that Defendants intend to introduce
evidence regarding the general business and structure of the
company and industry to provide context to the jury. However,
consistent with the Court's forthcoming ruling on market
power, evidence of sunk costs, while generally permissible
for context, will not be permitted for the purpose of
disproving market power.
•
The Court takes Plaintiffs' Motion in Limine No.
12 to be a motion seeking to prevent jury nullification. To
that extent, it is provisionally GRANTED. However, testimony
that generally addresses innovation and the financial
structure of the pharmaceutical market is permissible to put
the whole case in context, so this is not to be taken as a
blanket prohibition.
•
Plaintiffs' Motion in Limine No. 13 is GRANTED
IN PART AND DENIED IN PART. It is DENIED to the extent it
seeks to preclude testimony offered to provide context and
background. It is GRANTED as it relates to the Court's
market power and sunk costs holding. (See forthcoming summary
judgment ruling)
•
Plaintiffs' Motion in Limine No. 14 is GRANTED
IN PART AND DENIED IN PART. It is GRANTED to the extent it
deals with pejorative labels or character attacks. It is
DENIED to the extent it is intended to preclude proper use of
contrary positions taken in prior litigation as suggested by
defense counsel.
•
Plaintiffs' Motion in Limine No. 15 is DENIED as
moot in light of Defendants' representations.
•
Plaintiffs' Motion in Limine No. 16 is DENIED as
moot in light of the ruling on ...