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Sisk v. Abbott Laboratories

United States District Court, W.D. North Carolina, Asheville Division

October 20, 2014

KIMBERLY S. SISK, individually and as mother and natural guardian of S.A.S., a minor, Plaintiff,
ABBOTT LABORATORIES, an Illinois corporation, Defendant.



THIS MATTER is before the Court on the Plaintiff's Motion for New Trial [Docs. 236, 249].[1]


The Plaintiff Kimberly S. Sisk, individually and as mother, natural guardian and guardian ad litem of S.A.S., a minor, brought this action against the Defendant Abbott Laboratories, alleging that the Plaintiff's minor son developed meningitis as a result of consuming contaminated powdered infant formula (PIF) manufactured by the Defendant. On March 14, 2014 through March 17, 2014, this Court held a jury trial on the Plaintiff's negligence claim. The jury reached a verdict finding that the Defendant was not negligent in its manufacture of the Similac Advance powdered infant formula at issue, nor was the Defendant negligent in failing to provide an adequate warning or instruction with the Similac Advance powdered infant formula. [Doc. 233].

The Plaintiff now moves for a new trial pursuant to Fed.R.Civ.P. 59, arguing that the Court erroneously excluded particular evidence at the trial. [Doc. 236].


Rule 59(a)(1)(A) of the Federal Rules of Civil Procedure provides that "[t]he court may, on motion, grant a new trial on all or some of the issues- and to any party-as follows: (A) after a jury trial, for any reason for which a new trial has heretofore been granted in an action at law in federal court."

The Fourth Circuit has established that "[a] trial court's exercise of... discretion [for evidentiary rulings] is entitled to substantial deference, and will be upheld so long as it is not arbitrary or irrational." United States v. Myers , 589 F.3d 117, 123 (4th Cir. 2009) (internal quotations and citations omitted). Further, "[u]nless justice requires otherwise, no error in admitting or excluding evidence... is ground for granting a new trial.... At every stage of the proceeding, the court must disregard all errors and defects that do not affect any party's substantial rights." Trademark Properties Inc. v. A & E Television Networks, 422 F.Appx. 199, 217 (4th Cir. 2011) (citing Fed.R.Civ.P. 61). This Court can only grant a new trial when it can say "with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was... substantially swayed by the error, [therefore] it is impossible to conclude that substantial rights were not affected." Id . (citing Bank of Montreal v. Signet Bank , 193 F.3d 818, 834 (4th Cir. 1999) (quoting Kotteakos v. United States , 328 U.S. 750, 765 (1946))).

Ultimately, the decision to grant or deny a Rule 59(a)(1)(A) motion is a matter within the Court's discretion. See Atlas Food Sys. & Servs., Inc. v. Crane Nat'l Vendors, Inc. , 99 F.3d 587, 594 (4th Cir. 1996).


The Plaintiff argues that the Court erred by excluding: "(1) evidence of Abbott's knowledge of the risk of E. sakazakii ("E. sak") in its powdered infant formula, ... (2) evidence of the scientific consensus that powdered infant formula is associated with E. sak infections in infants, (3) evidence of microbiological incidents at both Abbott plants, [and] (4) Dr. Jason's opinions regarding what information should be on Abbott's label." [Doc. 236 at 1]. Notwithstanding the Plaintiff's hyperbolic summary of the issues, the Plaintiff argues with regard to the first three issues that the Court improperly excluded certain exhibits from evidence on the grounds that the Plaintiff had laid an insufficient foundation for admission. These exhibits and Dr. Jason's opinion are addressed herein.

A. Exhibit 82

The Plaintiff first argues that the Court should have admitted Exhibit 82, which was an email message showing on its face that it was directed to the members of the International Formula Council ("IFC"). [Doc. 238-2 at 2-13]. Attached to the email is a letter from Robert C. Gelardi and Mardi K. Mountford of the IFC to a doctor of the World Health Organization ("WHO"). [Id.]. The letter references ten attachments, two of which purport to be attached to the email. [Id.]. The Plaintiff argues that this exhibit should have been admitted through the testimony of Dr. Donnelly, who testified that he received it. [Doc. 237-3 at 2-4]. The Plaintiff asserts that it is admissible because it "demonstrate[s] Abbott's state of knowledge at the time concerning not only the association between powdered infant formula and E. sakazakii , but also the number of times it could be located in both finished product and environmental samplings." [Doc. 238 at 3]. Dr. Donnelly testified that among the other people listed as intended recipients of the email are three Abbott employees, but no evidence was offered to show that any of them received it. [Doc. 237-3 at 3-4]. The Plaintiff also argues that one of the attachments, a survey, should have been admitted as a business record. [Id.]. The Plaintiff makes no argument as to how the Plaintiff's substantial rights were prejudiced or how the outcome of the case was swayed by the Court's exclusion of Exhibit 82.

Exhibit 82 was excluded because the Plaintiff failed to lay the proper foundation to introduce the exhibit for the non-hearsay purpose of showing notice to Abbott. A statement that is offered to show notice rather than to seek to prove the truth of the matter asserted is admissible as non-hearsay. See United States v. Cone , 714 F.3d 197, 219 (4th Cir. 2013) (allowing emails to be admitted for the non-hearsay purpose of showing that the defendants were on notice regarding the type of goods being sold). Federal Rule of Evidence 602 establishes that a witness "may testify to a matter only if evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter." Here, the Plaintiff failed to establish that Abbott employees received the email message or the survey. Rather, the Plaintiff attempted to prove notice to Abbott employees through the testimony of Dr. Donnelly, who was a recipient of the email message ...

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