byu motion on brent hatch

James S. Jardine (1647) Mark M. Bettilyon (4798) Arthur B. Berger (6490) Samuel C. Straight (7638) RAY QUINNEY & NEBEKER P.C. 36 South State Street, Suite 1400 Salt Lake City, Utah 84111 Telephone: (801) 532-1500 Facsimile: (801) 532-7543 [email protected] [email protected] [email protected] [email protected] David B. Thomas (3228) Office of the General Counsel Brigham Young University A-350 ASB Provo, Utah 84602 Telephone: (801) 422-4722 Facsimile: (801) 422-0265 [email protected] Attorneys for Plaintiffs

Leo R. Beus (admitted pro hac vice) L. Richard Williams (admitted pro hac vice) Mark C. Dangerfield (admitted pro hac vice) Abigail M. Terhune (admitted pro hac vice) BEUS GILBERT PLLC 4800 North Scottsdale Road, Suite 6000 Scottsdale, Arizona 85251 Telephone: (480) 429-3000 Facsimile: (480) 429-3100 [email protected] [email protected] [email protected] [email protected]

IN THE UNITED STATES DISTRICT COURT DISTRICT OF UTAH CENTRAL DIVISION

BRIGHAM YOUNG UNIVERSITY, a Utah Non-Profit Education Institution; and Dr. DANIEL L. SIMMONS, an individual, Plaintiffs, vs. PFIZER, INC., a Delaware corporation; G.D. SEARLE & COMPANY, a Delaware corporation; G.D. SEARLE LLC, a Delaware limited liability company; MONSANTO COMPANY, a Delaware corporation; and PHARMACIA CORPORATION, a Delaware corporation, Defendants.

Case Number: 2:06-CV-890-TS PLAINTIFFS’ MOTION IN LIMINE NO. 12: EXCLUSION OF DEFENDANTS’ COUNSEL’S RELATIONSHIP TO BYU Judge Ted Stewart

Case 2:06cv00890TSBCW Document 986 Filed 04/24/12 of 5

Plaintiffs Brigham Young University and Dr. Daniel L. Simmons (collectively “BYU”)

file this motion in limine to preclude counsel for Defendants from referring directly or indirectly

to his status as an alumnus of BYU or his membership in the sponsoring institution of BYU.

Out of an abundance of caution and to limit the number of pretrial motions, Plaintiffs

wrote to Brent Hatch, one of the lead lawyers for Defendants, proposing that Defendants

stipulate to certain matters so as to obviate the need for related motion in limine. Among the

potential issues identified by Plaintiffs for such stipulation was a “Motion in Limine to preclude

reference by Brent Hatch being a BYU graduate or member” of the Church of Jesus Christ of

Latter-day Saints, the institution that sponsors BYU.1 In response, on April 19, 2012, counsel

for Pfizer wrote back with respect to Plaintiffs’ proposal as follows:

Defendants do not agree with this proposed motion. While Defendants have no present intention of making such references, there appears to be no legal basis for such a stipulation. Further, without knowing how BYU plans to present its lawyers, witnesses, and other matters at trial, such a stipulation is further without basis.2

Pfizer’s response thus necessitates this Motion.

Contrary to Defendants’ suggestion, there is a clear legal basis for such a stipulation.

“[S]trong appeals in the course of argument to sympathy, or appeals to passion, racial, religious,

social, class, or business prejudice lie beyond the permissive range of propriety.” Solorio v.

Atchison, T. & S.F. Ry. Co., 224 F.2d 544, 547 (10th Cir. 1955). There would be no basis for

counsel for Pfizer, Mr. Hatch, to reference in any way the fact that he is a graduate of Brigham

Young University because such information conveyed by a lawyer would not be evidence at all,

let alone relevant evidence under FRE 401. Moreover, even if such information constituted

1 See Letter of April 5, 2012 to Brent Hatch from James Jardine, a copy of which is attached hereto as Exhibit A. 2 See Letter of April 19, 2012 to James Jardine from Brent Hatch, a copy of which is attached hereto as Exhibit B.


evidence, it should be excluded under RE 403 because of the danger of unfair prejudice,

confusion of the issues, and potential to mislead the jury. The same would be even more true as

to Mr. Hatch’s affiliation with the Church of Jesus Christ of Latter-day Saints, the sponsoring

institution of BYU. See Sandoval v. Calderon, 2401 F.3d 765, 777 (9th Cir. 2000)(“religious

arguments have been condemned by virtually every federal and state court to consider the

challenge”); Whitfield v. Harris, 474 F. Supp. 822, 824-25 (N.D. 2007)(court granted motion in

limine prohibiting counsel from referencing religion during trial).

Defendants also contend that they should not be so limited “without knowing how BYU

plans to present its lawyers, witnesses, and other matters at trial . . .”3 This concern is obviously

wrong as a matter of logic because there would be no prejudice to Defendants if it were disclosed

that counsel for BYU had an alumnus relationship with BYU. More to the point, Plaintiffs’

counsel have no plans to present themselves as alumni of BYU or affiliated with its sponsoring

institution in any way.

For the foregoing reasons, the Court should preclude counsel for Defendants from

making any reference to his relationship as a graduate or otherwise to BYU or to its sponsoring

institution, the Church of Jesus Christ of Latter-day Saints.

3 Id. at 2.

3


DATED this 24th day of April, 2012.

RAY QUINNEY & NEBEKER P.C. By /s/ James S. Jardine

James S. Jardine Mark M. Bettilyon Arthur B. Berger Samuel C. Straight

BEUS GILBERT PLLC

Leo R. Beus L. Richard Williams Mark C. Dangerfield Abigail M. Terhune

OFFICE OF THE GENERAL COUNSEL

David B. Thomas BRIGHAM YOUNG UNIVERSITY

Attorneys for Plaintiffs

4


CERTIFICATE OF SERVICE

On the 24th day of April, 2012, the foregoing PLAINTIFFS’ MOTION IN LIMINE

NO. 12: EXCLUSION OF DEFENDANTS’ COUNSEL’S RELATIONSHIP TO BYU was

filed electronically with the Clerk of the United States District, District of Utah Central Division,

using the CM/ECF system which sent notification of such filing to the following:

Richard O’Malley, Esq. Sidley Austin LLP One South Dearborn Chicago, IL 60603 Telephone: 312-853-3577 Facsimile: 312-853-7036 [email protected]

John Caleb Dougherty Richard T. Mulloy Kathy J. Owen DLA PIPER 6225 Smith Avenue Baltimore, MD 21209 Telephone: 410-580-4140 Facsimile: 410-580-3140 [email protected]@[email protected]

Brent O. Hatch Phillip J. Russell Hatch, James & Dodge, P.C. 10 W. Broadway, Ste. 400 Salt Lake City, UT 84101 Telephone: 801-363-6363 Facsimile: 801-363-6666 [email protected]@hjdlaw.com

William F. Lee Amy K. Wigmore WilmerHale 60 State Street Boston, MA 02109 Telephone: 617-526-6000 Facsimile: 617-526-5000 [email protected]@wilmerhale.com

/s/ Jeanette Evans

1180742

5


Case 2:06cv00890TSBCW Document 9861 Filed 04/24/12 Page 1 of 2

byu motion on brent hatch

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