United States: In Limine Gag Orders – Can We Play, Too?

Last Updated: June 28 2016
Article by James Beck

Lately, we've seen some plaintiffs add gag order requests to their complement of in limine motions in advance of significant trials. Those of us who participated in the Bone Screw litigation remember plaintiffs attempting – and failing − to prevent the defendants from communicating with their customers (implanting physicians) about that litigation.  Unfortunately, no order resulted.  The first gag order relating to advertising involving civil litigation was entered at about the same time as our Bone Screw brouhaha in a securities-related case. Koch v. Koch Industries, Inc., 2 F. Supp.2d 1409 (D. Kan. 1998).  The court gagged both sides equally, and only after both sides agreed.  Id. at 1415 ("plaintiffs also ask the court to enter an order prohibiting the defendants from advertising" [and] "defendants apparently agree that the court should preclude both sides . . . from advertising").

Advertisements published or to be published by the parties in this case, whether selling products or ostensibly serving the public interest, seemingly carry messages directed at swaying public sentiment to that party's side in this case. In short, this case will tried in the courthouse; any attempt to try this matter in the media ends now.  In reaching this decision, the court has considered less restrictive means of preventing unfair prejudice attributable to pretrial publicity.  Unfortunately, the court can devise no content-based restriction that will be fairly and equally applied to the parties.  In light of the parties' respective requests for restraint, a total ban on advertising is not only simple and expedient, but seems most equitable.

Id. See also Pfahler v. Swimm, 2008 WL 323244, at *2 (D. Colo. Feb. 4, 2008) (rejecting plaintiffs' request for civil gag order).  Moreover, no matter what the parties might have been trying to communicate to potential jurors in Koch (there had also been a rather questionable opinion "poll" taken by one of the parties), we're sure that they weren't discussions of life saving medical products – or even corporate feel-good advertising of the sort seen while watching "Meet the Press" and other similar Sunday talk shows.

In prescription medical product liability litigation, such distinctions so far haven't mattered much. The First Amendment implications of gag orders against pre-trial advertising have been obvious to courts.  In In re Yasmin & Yaz (Drospirenone) Marketing, Sales Practices & Products Liability Litigation, 2011 WL 6740391 (S.D. Ill. Dec. 22, 2011), the plaintiffs moved in limine to prohibit the defendant from "initiating new advertising and marketing campaigns related to it being a good company that makes life-saving medicines" in the location of the trial or "or generating pretrial publicity before jury selection and during the trial in this case."  Id. at *19.  The motion was denied, largely on First Amendment grounds:

The Court finds that [defendant] denies any intent to engage in such pretrial publicity and plaintiff cannot direct the Court to any specific examples of offending advertising.  Further, prior restraint of First Amendment rights is very serious.  The Court would have to view the content of specific advertising prior to granting an order prohibiting it.

Id. The First Amendment also precluded a similar request in in In re Tylenol (Acetaminophen) Marketing, Sales Practices & Products Liability Litigation, 2016 WL 3125428 (E.D. Pa. June 3, 2016):

The plaintiff's request is somewhat unprecedented − to ask a civil defendant to restrain from engaging in certain marketing tactics pre-trial. . . . Pretrial publicity could affect the fairness of a civil trial by tainting the jury pool and process.  A prior restraint is one of the most extraordinary remedies known to our jurisprudence.  Prior restraints on speech and publication are the most serious and the least tolerable infringement on First Amendment rights. . . .  There is no reason to impose restraints on the defendants' speech rights at this time.  The defendants claim they do not plan to engage in pretrial advertising or publicity to bolster their reputation. . . .  [T]he extent and nature of the unfair publicity the plaintiff wishes to have restrained is vague and unclear.  Though the plaintiff claims her request is narrowly tailored because it limits the plaintiff to "the time preceding and during trials" and "in the limited market," these limitations are not well-defined.  They also could impose an undue burden on the defendants' speech rights when other means are available to mitigate juror bias.

Id. at *3 (citations, including to Koch, omitted).  Other product liability decisions rejecting similar plaintiff-side requests are: In re Prempro Products Liability Litigation (Hill), 2007 WL 3217470, at *4 (E.D. Ark. Oct. 26, 2007); In re Prempro Products Liability Litigation (Scroggin), 2007 WL 3125106, at *4 (E.D. Ark. Oct. 24, 2007); In re Prempro Products Liability Litigation (Rush), 2006 WL 3806391, at *2 (E.D. Ark. Dec. 27, 2006).  Diet Drug plaintiffs also tried this same tactic elsewhere, to no avail.

Then there is the interesting, and apparently agreed-upon, order entered concerning "communication with the media" in Norplant litigation.  Both sides agreed not to talk to the press, subject to two exceptions:

(3) Subject to the provisions of paragraph 5 [relating to abuse], this order does not prohibit counsel for plaintiffs from advertising their services to women who have used the Norplant System.

(4) Subject to the provisions of paragraph 5 [same], this order does not prohibit defendants from advertising the Norplant System and engaging in communications appropriate to the continued sale of the product, including, for example, responding to inquiries about the product from health care providers, scientists, researchers, government agencies, regulatory authorities, past, present and prospective users, and the media (regarding the product only, not the litigation).

In re Norplant Contraceptive Products Liability Litigation, 1996 WL 675561, at *1 (E.D. Tex. Nov. 14, 1996).

The Norplant order is particularly prescient in this context, in that it brings up the subject of plaintiff-side lawyer advertising.  The prejudicial effect of such advertising has itself been recognized. See Janssen Pharmaceutica, Inc. v. Bailey, 878 So. 2d 31, 51 (Miss. 2004) (change of venue appropriate where potential jurors had been "bombarded with attorney advertisements, attorney-organized meetings and plaintiff-propelled gossip").  To the extent that plaintiffs seek in limine orders precluding defendants from engaging in advertising defending their products, defendants would be well-justified in countering with similar requests to shut down plaintiff-side advertising concerning the same products, in the same geographic area, for the same time period.  Such solicitation is far more pernicious than anything a defendant would do.  Often such ads are falsely mimic newscasts.  Many disguise their source, containing the names of dummy firms that don't even  litigate.  Because the other side is not subject to FDA "balance" requirements, they routinely make overblown risk claims that never could stand up to FDA scrutiny.  Anything plaintiffs could possibly claim in support of an in limine gag order, they are already doing far worse.  If they want to play the silence-your-opponent game. a cross motion would certainly be in order.  In active litigation centers, the frequency of trials could result in overlapping gag orders shutting down this type of solicitation for extended periods.  What's sauce for the goose....

This article is presented for informational purposes only and is not intended to constitute legal advice.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
James Beck
 
In association with
Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions