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Medical Sales & Consulting Group; et al v. Plus Orthopedics

May 18, 2011

MEDICAL SALES & CONSULTING GROUP; ET AL., PLAINTIFFS,
v.
PLUS ORTHOPEDICS USA, INC.; SMITH & NEPHEW, INC., DEFENDANTS.



The opinion of the court was delivered by: Hon. Roger T. BenitezUnited States District Judge

[Doc. Nos. 115-122]

ORDER ON THE PARTIES'MOTIONS IN LIMINE

The parties' motions in limine are before the Court. Plaintiffs have filed three motions in limine. (Doc. Nos. 115-117.) Defendants have filed five motions in limine. (Doc. Nos. 118-122.) The Court orders as follows:

I. Plaintiffs' Motions in Limine

A. Plaintiff's Motion in Limine to Exclude Robert H. Wallace's Testimony Regarding Industry Standards

Plaintiffs move to exclude the testimony of Robert H. Wallace regarding the industry standards and practices relevant to the orthopedic medical device industry and the operations of the sales force in the industry. Defendants argue in opposition that Wallace is qualified to testify on damages and his reliance on discovery and reliable information on the industry is appropriate.

Federal Rule of Evidence 702 allows expert testimony if certain conditions are met, including that the witness be "qualified as an expert by knowledge, skill, experience, training, or education." Wallace was retained to render an opinion about the amount of economic damages incurred by the plaintiffs if they prevail on their claims. He is a certified public accountant with experience in calculating economic damages. He has no experience with standards and practices in the orthopedic medical device industry and Defendants admit that Wallace will not be offering expert testimony on the orthopedic medical device industry. However, some of Wallace's testimony relies on information about the industry for purposes of context and information resulting from discovery.

Plaintiffs' motion is GRANTED in part and DENIED in part. The Court excludes any expert testimony from Wallace about orthopedic medical device industry standards or practices, including opinions about compliance with Plaintiffs' sales contracts or advisable industry practices. But, the Court will allow Wallace to testify about his damages calculations and, as necessary, the basis for those calculations. To the extent Wallace's testimony extends beyond that necessary for the calculation of economic damages and the basis for them, Plaintiffs may raise the issue during the bench trial.

B. Plaintiffs' Motion in Limine to Exclude Testimony or Other Evidence Relating to the Deferred Prosecution Agreement

Plaintiffs move to exclude any testimony or other evidence regarding Smith and Nephew's Deferred Prosecution Agreement ("DPA") with the United States Attorney's Office for the District of New Jersey. Defendants intend to argue at trial that the expiration of the DPA reflects Smith & Nephew's compliance with training requirements, rebutting Plaintiffs' claim that Defendants failed to provide appropriate training.*fn1

Defendants refused to provide any discovery related to the DPA. When Plaintiffs sought to compel discovery concerning the DPA, Defendants sought and obtained a finding from the Court that the DPA was irrelevant. Having refused to provide discovery related to the DPA and successfully advanced the position that it was irrelevant, Defendants cannot now rely on it.

Plaintiffs' motion is GRANTED. Any testimony or other evidence regarding the DPA is excluded.

C. Plaintiffs' Motion in Limine to Exclude Defense Testimony that Contradicts Certain Rule 30(b)(6) Deposition Testimony

Plaintiffs move to exclude any defense testimony that contradicts certain Federal Rule of Civil Procedure 30(b)(6)*fn2 deposition testimony, including that given by unprepared and unknowledgeable Rule 30(b)(6) designees. Plaintiffs argue that Defendants should not be allowed to offer unknowledgeable and unprepared Rule 30(b)(6) witnesses that lacked knowledge of any facts underlying Smith & Nephew's decisions with regard to Plaintiffs and then "ambush" Plaintiffs with contrary testimony at trial. Plaintiffs also move to exclude any evidence at trial that contradicts certain factual admissions of Defendants' ...


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