In re Loestrin 24 FE Antitrust Litigation

          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 ...