If the jury in an Actos bellwether trial is informed that Eli Lilly and Co. pleaded guilty to a strict-liability misdemeanor for its off-label marketing of Zyprexa, the drugmaker won’t be able to get a fair trial, the defendant argued in court papers.
The evidence would impermissibly suggest to the jurors that Eli Lilly has a propensity for that kind of behavior and persuade them that it must be liable for negligently marketing Actos too, the drugmaker said. Evidence of prior acts, including one’s propensity to commit similar wrongful actions, is generally inadmissible in federal court.
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