Summer used to be the season of sun, fun, and nothing of consequence happening. We remember when courts were like dormant reptiles in July and August. After June, there would be no major rulings, and certainly no trials, until the temps dropped under 85 and the kids marched sullenly back to school. Even television lazily took the Summer off. It was rerun time, and the three networks were reduced to pitching that ‘It’s new to you if you haven’t seen it.” In between the reruns, failed pilots were burned off, like greasy chicken-bits on a grill.
It’s different now. Seasons hardly matter. Some channels seize Summer as the time to introduce major, and very good, shows, such as The Bridge. Further, not all shows are introduced by ‘channels’ at all. Just as it did with Arrested Development and House of Cards, Netflix recently unleashed Orange is the New Black on the viewing populace. It has become the critics’ new darling. Moreover, watching reruns has drastically mutated, now that we can catch up on things we missed via binge-watching on demand or on DVD. For example, we took a cue from a couple of recent books about TV’s current Golden Age – Alan Sepinwall’s The Revolution was Televised and Brett Martin’s Difficult Men — and zipped through all seven seasons of the underrated The Shield (“Good cop and bad cop left for the day. I’m a different kind of cop.”). We have made it most of the way through the prematurely-ended Deadwood, where the f-bombs approach Midnight Run territory, and where the soliloquies could have been lifted from Macbeth — adding the f-bombs.
Speaking of premature endings, the death of James Gandolfini at age 51 made us rue all the great future performances we have been cheated out of (HBO had started shooting a series where Gandolfini was going to play the part of a lawyer) and remember his transcendent work as Tony Soprano. (More than one correspondent on this blog mourns Gandolfini’s passing, as evidenced here.) Without any planning, almost reflexively, we ended up binge-re-watching The Sopranos. Over 86 hours, Gandolfini turned in as impressive a body of acting work as we are ever likely to see. Make no mistake – as Carmela’s shrink says to her, “You have been told” – Tony is evil. But Gandolfini let us feel the complexity and banality and humanity of that evil. As high school students we were forced to write an essay on whether Arthur Miller’s “Death of a Salesman” was a legitimate expression of tragedy. How can someone fall from greatness if they were never really great in the conventional sense? Or can ‘great’ stem from representing something significant? If schools in the future manage to get things right, students will be asking the same thing about David Chase’s television show.
We are not exactly binge-watching drug and device law cases. But if you’ve been paying attention to this blog you know that a lot has been happening. The Mensing/Bartlett mosaic continues to assemble. California keeps emitting weird food law cases. The courts in our fair Commonwealth never miss an opportunity to make us reopen the hornbooks and reconsider our sanity. And there are even a few drug and device trials trudging through the heat.
We were told long ago that Summer is the time to eat and drink lighter things — salads and sauvignon blancs rather than stews and Guinness on tap. Today we are noshing on a terse 10-page order in a hip replacement case where the defendant did very well in the battle of in limine motions. The case is called McCracken v. DePuy Orthopaedics, Inc., Case No. 11 dp 20485 (N.D. Ohio July 26, 2013). McCracken is a bellwether case set for trial in September in the DePuy hip replacement MDL. The plaintiff alleged that the DePuy’s hip replacement was defectively designed and/or manufactured and that DePuy failed to provide adequate warnings concerning the device, which DePuy recalled in August 2010. The causes of action include: (1) strict liability-defective design; (2) strict liability-failure to warn; (3) negligence; (4) breach of express warranty; (5) breach of implied warranty of merchantability; (6) breach of implied warranty of fitness; and (7) violation of New York General Business law § 349.
Because we are still stuffed with Sopranos baked ziti, we begin our discussion of each motion in limine with a line from Tony. Why? Because we can. After all, “what use is an unloaded gun?”
“Those who want respect, give respect.”
The defendants moved for permission to use a split-screen videotape in displaying recorded deposition testimony at trial. One camera focused on the deponent and one on the lawyer conducting the deposition. Why did the defendant do that? The opinion does not say. In the 1980s we did something similar when representing a Japanese company. The other side objected. They wanted the jury to see nothing except a foreign deponent, speaking through a translator. Paranoia about “Japan as Number 1” reigned back then. We thought that using a split screen would slightly deemphasize that visual, plus it might make the opposing lawyers behave a bit better. Or if the lawyer engaged in eye-rolling etc., the jury would probably not like that so much. In the end, we thought the split screen worked out well. The biggest problem was that it became a little too easy for the witness to move enough so as to wander off-screen. All that meant was that the videographers had to be alert, and maybe find their inner Scorsese. Anyway, as in our case from yester-century, the plaintiffs in the hip replacement case objected. They argued that there is no rule or authority that provides for a split screen or a second camera. Okay, but neither is there any rule against it. Fed. R. Civ. P. 30(b)(3) addresses the method of recording a deposition and contains no prohibition against the split-screen method. The court concluded that “[presentation of a split-screen method is no different from what the jury would see in the live courtroom, therefore, no prejudice results to either side.” Slip op. at 5. The defendants’ motion was granted.
“They say every day’s a gift, but why does it have to be a pair of socks?”
There’s almost always a battle of the experts in our cases. Usually, all the experts are moneyed-up. Usually, the jurors afterwards say they discounted all expert testimony. Who knows how true that is? From our perspective, we’d rather have an expert who has made a lot of money and who testifies well instead of a virgin expert who giggles and sweats and litters his or her answers to cross-examination with the sort of answers given by Socrates’s hapless opponents in Platonic dialogues (“Yes, absolutely.” “There can be no other.” “Right again, Socrates.” “My, doesn’t that toga look fetching on you.”) Each side impeaches the other side’s experts with filthy mammon. The issue is how much filthy mammon can we parade before the jury. In McCracken the defendants moved to exclude evidence of the amount of compensation paid to their experts in other implant cases. There is no doubt that the amount paid to the expert in this specific litigation is fair game. But what about other cases, especially if they are similar and involve the same clients and lawyers? Does an inquiry into bias at some point descend into mere voyeurism and prejudice? In McCracken the court split the baby in a way that seems fairly reasonable and typical: the court would “allow Plaintiff to inquire as to the number of times the expert prepared to or did, in fact, testify on behalf of the Defendants but such inquiry should not be limited to just ASR cases or ASR litigation. Nor should the inquiry mention ASR cases. The inquiry should be as to services rendered to or on behalf of Defendants, not to exceed 2-3 years, or as agreed between the parties.” Slip op. at 6. We have seen better. We have seen worse. We doubt the trial will turn on this point. [This in limine ruling makes us think of that pivotal moment in Mad Men, when Peggy complains that Don never thanks her for the good ideas she comes up with at work and Don offers this curt, brutal, honest rejoinder: “That’s what the money is for!”]
“‘Remember when’ is the lowest form of conversation.”
As mentioned above, the hip implant was recalled by the manufacturer. Naturally, if you are claiming that a product is defective, such a recall amounts to a Good Fact. It is rather less than that for the defendant. Thus, it inevitably becomes an issue for the court to resolve, even though the law is pretty clear that subsequent remedial measures should not come into evidence. The court in McCracken thought the issue was clear: “Assuming the Plaintiff will claim her harm commenced before the recall, in this instance, the recall is a subsequent remedial measure which, if it had occurred prior to the implantation, would have prevented the harm. As such, the recall is inadmissible under Rule 407.” Slip op. at 7. The court helpfully cites a case in support. Now you can cite this case in support as well. You’re welcome.
“Oh poor baby. What do you want, a Whitman’s sampler?”
The plaintiff moved to exclude all reference related to Broadspire Services, Inc. The opinion is not entirely clear on what Broadspire did, but we gather that it administered a program DePuy set up after the recall to make sure that there were no financial barriers to patients getting the treatment they needed. Broadspire made co-payments and out-of-pocket payments. Patients gave up no legal rights by accepting benefits from Broadspire. It sounds as if the defendant was proactive during the recall and did all the things that plaintiff lawyers and political nags say that corporations should do. According to the court, the role of Broadspire was “truly unique.” Slip op. at 8. So, naturally, the plaintiff did not want a word about this fact whispered in front of the jury. The plaintiff argued that evidence regarding Broadspire constitutes a collateral source, which would normally not come into evidence. The court rejected the plaintiff’s argument, at least for now. If nothing else, the unique, proactive, altogether beneficent role of Broadspire might help fend off punitive damages. Armed with that possibility, plus the availability of limiting jury instructions, the court adopted a wait-and-see attitude. Will the jury see Broadspire in September? Tune in.
“If you can quote the rules, then you can obey them.”
The plaintiff moved to exclude reference to the fact that the FDA gave a 510(k) clearance to the hip implant. The court says that “[b]oth sides agree that the 510(k) clearance is based upon an equivalency standard and is not a stamp of approval by the FDA insofar as it pertains to safety.” Slip op. at 8. Hmmm. As we have written before, while the 510(k) clearance is premised on substantial equivalence, such clearance does necessarily constitute a finding of safety. Thus, such clearance is clearly relevant to the design defect claim. Are we being clear? At a minimum, the fact of clearance and the description of that process is bound to be relevant to the plaintiffs’ inevitable arguments of what the company did and didn’t do, and what it should and shouldn’t have done. To omit the 510(k) clearance would be to present the jury with a vast falsehood, permitting the plaintiffs to tell a tale about a rogue company rushing a product to market and ignoring proper safety tests – whereas the truth is that the company played by the rules. The court in McCracken seems to have grasped that consideration, as it held that “Defendants are entitled to present evidence of the 510(k) clearance as it represents the process by which the device came to be on the market and is, therefore, relevant.” Slip op. at 9. Good. Unlike The Sopranos, this story ends unambiguously and happily.
We offer a tip of the cyber fedora to Susan Sharko of Drinker Biddle for bringing these rulings to our attention. The defense briefing was a joint effort by Kristen Mayer (Tucker Ellis) and Rodney Hudson (Drinker).