If the jury in an Actos bellwether trial is informed that Eli Lilly and Co. pleaded guilty to a strict-liability misdemeanor for its off-label marketing of Zyprexa, the drugmaker won’t be able to get a fair trial, the defendant argued in court papers.
The evidence would impermissibly suggest to the jurors that Eli Lilly has a propensity for that kind of behavior and persuade them that it must be liable for negligently marketing Actos too, the drugmaker said. Evidence of prior acts, including one’s propensity to commit similar wrongful actions, is generally inadmissible in federal court.
“To prove Eli Lilly and Company’s purported tendency to promote its medicines off-label, plaintiffs now ask this court to admit government press releases, newspaper articles, and plea agreements that are plainly inadmissible under the Federal Rules of Evidence,” Eli Lilly said. “Plaintiffs’ motive for offering this evidence is obvious: they have failed to introduce any evidence supporting their claim that defendants’ allegedly inappropriate marketing of Actos” proximately caused the plaintiff’s prescribing physician to prescribe Actos to him.
The drugmaker agreed to pay $1.42 billion, including a $515 million fine, to resolve allegations that it promoted off-label uses of Zyprexa.
The plaintiffs allege that door to disclose the Zyprexa events to the jury was opened by defense witness, Ron Hoven, a former senior director for global marketing.
The plaintiffs allege that Hoven, under questioning by U.S. District Judge Rebecca Doherty, wrongfully testified that “Zyprexa is not a product that I had any contact with” and that he did not know anything about the trouble Eli Lilly got into regarding its marketing. But the plaintiffs identified documents, including six performance management forms, that show he had contact with Zyprexa, their court papers say.
Eli Lilly insists there is a “distinct possibility’ that Hoven understood “contact” to mean being involved substantively with Zyprexa. Hoven did not work on Zyprexa, it said.
Lilly’s plea agreement regarding Zyprexa is not admissible to impeach Hoven, Eli Lilly argued. And he was not its corporate representative, the company added.
Amaris Elliott-Engle is a contributor to law.com.