The opinion of the court was delivered by: J. CURTIS JOYNER
Defendant Donald Myers has filed five separate motions in limine with this Court. He addresses all of them in a single memorandum of law, as we resolve of them today. Myers seeks to exclude the following evidence:
1) any evidence regarding the regulatory status by the Food and Drug Administration of pedicle screws;
2) any expert testimony regarding lack of informed consent;
3) any evidence regarding an alleged financial tie between Myers and Acromed Corporation;
4) any expert testimony by plaintiff regarding the materiality of a risk and/or the ultimate determination of lack of informed consent;
5) the testimony of Plaintiff's experts, Carl Larson, Ph.D and Harold Alexander, Ph.D, as to any issue involving negligence and lack of informed consent against Dr. Myers.
The facts of this case are well known to the parties and their counsel, as well as to all faithful readers of the Federal Supplement; they will not be repeated here.
1) Evidence regarding the FDA regulatory status of pedicle screws.
Myers argues that a medical device's regulatory status is not the type of information that a doctor is bound to give patients before receiving their informed consent. Kaskie v. Wright, 403 Pa. Super. 334, 589 A.2d 213, app. denied, 529 Pa. 634, 600 A.2d 954 (1991) Therefore, he argues, the evidence is irrelevant and should be excluded. We addressed this argument in our December 6, 1994 Memorandum and Order denying Davne's motion for partial summary judgment. Op. at 9 & n.3.
In that Memorandum and Order, we held that Corrigan had presented evidence indicating that the alleged FDA regulatory status of the VSP Screws "meant that they had not been proven to be safe and effective. Use of them in surgery, therefore, is a surgical risk that a jury could well find was material." Id. Here, we find that the VSP Screws could be relevant to an informed consent claim; therefore we do not exclude evidence as to their FDA regulatory status.
In addition, Myers argues that admission of the FDA regulatory status of the VSP Screws would unfairly prejudice him. The test for whether something is unfairly prejudicial under Federal Rule of Evidence 403 is whether it is likely to lead the jury to "misdecision" based on inflamed passions, confusion of issues or the like. As our Court has noted, "all evidence is inherently prejudicial; it is only unfair prejudice substantially outweighing probative value that permits exclusion of relevant evidence under Rule 403." United States v. Scarfo, 711 F. Supp. 1315, 1330 (E.D. Pa. 1989), aff'd, 910 F.2d 1084 (1990) (emphasis added); John Henry Wigmore, Evidence in Trials at Common Law § 10a (1983).
In this case, one of the underlying issues in many of Corrigan's claims is whether the VSP Screws were deemed experimental by the FDA. Evidence on this matter is, therefore, relevant and probative. Myers has not presented evidence indicating that prejudice arising from this evidence substantially ...