*1 This case [Case No. 1:18-CV-748-RWS (the “Crumbley case”)] comes before the Court on Defendants' Motions in Limine No. 5 to Exclude Evidence and Argument About Defendants' Internal Guidelines [Doc. 79] and No. 9 to Exclude Hearsay Evidence Presented During Depositions of Defendants' Experts [Dkt. 83]. The motions were originally filed in the Crumbley case but the parties have stipulated that the motions are adopted in Case No. 1:18-CV-402 (the “Guffey case”). After considering the submissions of the parties, the Court enters the following Order.

I. Motion to Exclude Evidence of Internal Guidelines and Credo [Doc. 79]

In this Motion, Defendants ask the Court to exclude evidence of Defendant Ethicon's Internal Labeling Guidelines as well as evidence of Defendant Johnson & Johnson's credo. They contend that the evidence is irrelevant to the failure to warn claims and that any probative value is substantially outweighed by the possibility that the jury would confuse the internal standards with the legal standard of care. The Plaintiffs argue that the internal evidence should not be excluded because it does in fact bear on determining the standard of care (even though it does not itself set the standard of care), and that the jury can be adequately instructed so as to eliminate any confusion.

The Court finds that the evidence of Ethicon's labeling guidelines should not be excluded, but that the evidence of Johnson & Johnson's credo should be.

As to the labeling guidelines, they are specific and detailed enough to be relevant to the issues, and the Court is confident that the jury can be instructed as needed to eliminate confusion concerning the standard of care. The Court agrees with Plaintiffs that, even though the guidelines do not set the standard of care, they are competent evidence that bear on the standard of care. See Youngblood v. All Am. Quality Foods, Inc., 792 S.E.2d 417, 421 (Ga. Ct. App. 2016) (“[A] company's private policy may be admissible for the purpose of illustrating negligence (or lack thereof) under circumstances to which the policy would be applicable,” even though “the policy does not establish the governing standard of care.”). As such, the Motion is DENIED as to this evidence.

By contrast, the credo, which is nothing more than a single-page aspirational statement of Johnson & Johnson's business ethos, is too general to bear on the actual issues in the case. As such, its probative value, if any, is minimal, and is substantially outweighed by the possibility that it might mislead the jury, who might be tempted to punish the Defendants for failing to attain to the lofty ideals set out in the credo, even with instructions. Accordingly, the Motion is GRANTED as to this evidence. The credo will be excluded.

II. Motion to Exclude Hearsay Evidence from Expert Depositions [Doc. 83]

In this Motion, Defendants ask the Court to exclude certain evidence that was presented during depositions of Defendants' experts. This evidence includes internal company emails about the experts, social media posts by the experts, and social media posts by others. Defendants argue that the evidence is hearsay, is irrelevant, and poses a risk of undue prejudice that substantially outweighs its probative value. The Plaintiffs obviously disagree. The different categories of exhibits are discussed in turn below.

A. Internal Emails About Opinions [Docs. 83-2, 83-3, 83-5, 83-7]

*2 The Court will not exclude the internal company emails about the experts' use of various products and their opinions. As Plaintiffs note, the statements are not impermissible hearsay: all were made by Defendants' employees within the scope of their business, so they are statements of an opposing party under Federal Rule of Evidence 801(d)(2)(D). Defendants' contention that they constitute hearsay within hearsay is beside the point: at both levels (the email and the underlying statement), the speaker was a company employee working within the scope of their business. And the emails bear on the credibility of the expert witnesses by evincing the changing nature of their relationship with the company. As such, even if they could not be introduced to establish anything concerning Physiomesh itself, they are proper impeachment materials and may be introduced accordingly. As such, the Motion is DENIED as to these exhibits.

B. Internal Emails about Dr. Voeller's Personality [Docs. 83-6, 83-8]

On the other hand, the emails discussing Dr. Voeller's personality will be excluded. Those e-mails contain disparaging remarks about Dr. Voeller and little else of note. What, if any, probative value it contains about the nature of the relationship between Voeller and the Defendants is substantially outweighed by the potential to prejudice the jury unduly against the witness. As such, the Court finds that it will be excluded. The Motion is GRANTED as to these exhibits.

C. Facebook Posts By Dr. Voeller [Docs. 83-10, 83-11, 83-12, 83-12]

The Facebook posts made by Dr. Voeller in the IHC Facebook group will not be excluded, but the surrounding posts, including pictures, made by other physicians will be excluded or must be redacted if used by Plaintiffs to impeach. The Court agrees with Plaintiffs that these statements can be used to impeach Dr. Voeller's credibility. Even if he has an explanation for why his opinion has changed, the jury is entitled to draw their own conclusions about his reasons for doing so.

As for the surrounding posts, they do not bear on Dr. Voeller's credibilty, and the Court believes his statements can stand alone sufficiently for Plaintiffs to make their point. As such, the surrounding statements will be excluded (or redacted, if the post is presented in its current form). With that said, if the Plaintiffs introduce Dr. Voeller's posts, and the Defendants so desire, they may seek to introduce the surrounding posts to provide additional context, and the Court will make an appropriate determination at trial.

Thus, the Motion is GRANTED in part and DENIED in part as to these exhibits. The Plaintiffs are DIRECTED to redact the exhibits accordingly.

D. Facebook Thread Shared Internally [Doc. 83-9]

The final exhibit in question is a Facebook group thread sent to certain of Defendants' employees to illustrate the complaints of various users of the products. Plaintiffs argue that it is not hearsay, either by way of its being an opposing party statement, or because it goes to show the effect on the listener.

The Court disagrees. Incorporation of a statement into an email still requires that the underlying statement be non-hearsay. And, although in a certain context, the posts might be properly introduced in conjunction with the email to show the effects on Defendants' employees,[1] that does not apply to the testimony of the Defendants' experts. The only purported use of the exhibit with respect to the experts is to provide “context” for the experts' own posts, which, as noted above, is unnecessary. Accordingly, the Motion is GRANTED as to this exhibit to the extent the Plaintiffs seek to introduce it to impeach the Defendants' experts.

For the foregoing reasons, Defendants' Motions in Limine No. 5 to Exclude Evidence and Argument About Defendants' Internal Guidelines [Doc. 79] and No. 9 to Exclude Hearsay Evidence Presented During Depositions of Defendants' Experts [Dkt. 83] are GRANTED in part and DENIED in part.

*3 SO ORDERED this 27th day of April, 2021.