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The other day ESPN’s Sportscenter ran a teaser entitled “Less of Maya Moore.”  WNBA player Maya Moore had what was for her a less than stellar night, but her teammates on the Minnesota Lynx picked up the slack and they won anyway.  Maya Moore is a fantastically gifted basketball player with the resume to prove it.  She has won team championships and MVP trophies on the collegiate and professional levels.  A scientist has measured Moore’s reflexes to approximate those of a striking rattlesnake.  Moore has also donned makeup to look like an old lady and, along with Kyrie Irving dressed up as Uncle Drew, scammed some recreational ballers on a neighborhood hoops court.  The video is here.

Maya Moore is very, very good at what she does.

By contrast, the Maya litigation in our fair city is very, very bad.  First, there was the trial here in the Philly Court of Common Pleas, where the plaintiff won a $10 million verdict when a jury found that the defendant failed to warn that over-the-counter Motrin could cause SJS/TEN (a rare but life-threatening disease that causes severe blistering and sloughing off of skin, together with serious damage to the mouth, eyes, throat and esophagus).

Bexis wrote a post here, laying out Five Uneasy Theses – important areas where the Maya trial court got things horribly wrong:

  • Waiver for preserving too many issues
  • Applying Pennsylvania liability law to a plaintiff from another jurisdiction
  • Muddling strict liability and negligence
  • Reference to risks/calculations not suffered by plaintiff
  • Misapplication of the Frye test for expert opinions

That first issue – preserving too many appellate issues – is a howler.  Our career has been pockmarked by long trials where crazy rulings, usually prompted by bloodthirsty attorneys, visited the courtroom every day.  As a result, if you took the pages of the trial transcript and laid them out all over a five acre field, and then tossed a dart in any direction, it would surely land on reversible error.  We suspect the same is true with Maya.

But the Superior Court did not see things that way.  Last week, it affirmed the verdict.  Maya v. Johnson and Johnson, 2014 PA Super 152 (July 22, 2014).  The Maya decision makes for fairly (or unfairly) depressing reading.  The reader right away picks up a whiff of defensiveness and desperation when the appellate court announces at the outset that it has engaged in a “ careful review.”  Why say that?  Do appellate courts ever engage in a careless review?  We are racking our brain, but cannot come up with an instance where brilliant judges (e.g., Marshall, Story, Brandeis, Hand, Posner, Kozinski, Boggs) ever felt the need to describe their analysis as “careful.”  In the Maya appellate opinion, we are treated to an analysis that seems anything but careful, with the bottom line feeling very much like this:  the Maya case was a marathon (nine weeks) and a mess, anyone would feel enormous sympathy for the plaintiff, and, therefore, the harmless error standard will be applied like a bludgeon to prevent any sort of do-over.  (That being said, at least the appellate court did not find waiver because the defendant had appealed on so many grounds.  The record was voluminous, the issues were complex, and the defendant winnowed down the number of issues actually argued on appeal.  Oh, and the record below was a tragicomedy.)

The jury found for the plaintiff on the failure to warn claim, and for the defendant on negligent design and punitive damages.  The appellate court repeatedly cites that mixed verdict as evidence that the trial was fair and that any errors did not make a difference, but one does not follow from the other.  Yes, the verdict could have been even worse, but that hardly excuses some of the more egregious rulings and instructions by the trial court.

So that we cannot be penalized by a Pennsylvania judge for raising too many errors, we will confine ourselves to only a few lowlights.  The defendant quite rightly asked the court for an instruction to the effect that the jury could not consider drugs other than ibuprofen, or the conduct of other drug manufacturers, in arriving at a verdict.  Amazingly, the trial judge forgot to include the word “not”.  Afterwards, the trial court claimed that it gave the requested instruction verbatim, but even the appellate court was compelled to disagree, reasoning that defense counsel had objected and that it would make no sense for the defendant to ask for an instruction so clearly against its interest:  “Why would McNeil ask the trial court to instruct the jury that they can consider the conduct of other drug manufacturers, or what happened with other drugs besides ibuprofen, such as drugs being pulled off the market, when evaluating McNeil’s conduct in this case?”  Why, indeed. But no harm no foul.  The appellate court concludes that the defendant “was not prejudiced by the trial court’s alleged mistake.”  The court ruled that the instruction pertained only to the negligent design and punitive damages claims, which the defendant won anyway.  Wow.  That conclusion rather conveniently ascribes to jurors the exquisite reasoning powers of Descartes and Spinoza.

The trial court also let in evidence of risks and/or adverse effects of Motrin other than the SJS/TEN actually suffered by the plaintiff.  This time the appellate court does not even resort to harmless error; the court held it was not error at all to admit this evidence of harms absent from the case, because such evidence was relevant to plaintiffs’ negligent design defect claim, as well as punitive damages, because it showed that the defendant “had knowledge of other adverse reactions and side effects and failed to warn consumers.”  Even assuming there is some probative force to that, how is it not mightily outweighed by the sheer prejudice?  We do not know how that balancing was done by the trial and appellate courts, or if it was done at all, because we see no such balancing in the opinion.

The trial court also let in reports of adverse events that occurred after the plaintiff’s injuries.  According to the appellate court, that is a-okay because the “trial court specifically instructed the jury that they were not to consider AERs as evidence of causation, only notice.”  Why would such after-the-fact notice be relevant?  The mind reels.

The trial court also allowed the plaintiff to present evidence regarding possible warnings that the FDA actually rejected, including references to SJS, TEN, or “life-threatening” diseases or reactions in the OTC Children’s Motrin label.  But that’s okay, because the trial court turned the issue over to the jury as a fact issue, leaving it up to the jury to decide whether the FDA had actually rejected the labeling.  Was it really a factual issue at all?  Was there any dispute?  Or did the plaintiff get another freebie, parading prejudicial arguments and evidence in front of the jury to create a nine week simmering stew of anger?

The trial court also allowed the plaintiff lawyer to question the plaintiff about an advertisement about which there was no evidence of reliance.  The trial court acknowledged that the admission of this evidence was contrary to its earlier pre-trial ruling on the defendant’s motion in limine.  Oops.  But never mind, no prejudice.

Nor was the defendant prejudiced when the plaintiff’s expert held forth on how “it was unfair American patients did not receive the identical warnings” as in some other countries.  After all, the expert had not gone into detail about those other warnings. Nope, the expert merely tossed the skunk into the jury box; because he did not explain the exact olfactory mechanics for how the skunk stank, it could not have affected the jury.  Besides there was a curative instruction.  (At this point, one has to wonder what percentage of the final jury instructions were curative.  25%?  50%?  60%?)  We have long thought that the inadmissibility of foreign regulations was well-settled.  See: we say so here.

Then there was the issue of how the plaintiff’s lawyer repeatedly disregarded the trial court’s rulings, referenced the defendant’s wealth and its “army of attorneys,”  and framed the case explicitly as “David and Goliath” battle.  Neither the trial nor appellate court denied that such conduct was improper.  But the trial court threw up its hands and complained that “an exorbitant amount of patience was required to control all counsel throughout the entire trial,” not just plaintiffs’ counsel.


The appellate court again references the fact that the defendant prevailed on two of the three claims, which is sort of like acquitting a burglar because he stole the TV and jewelry, but not the silverware.  Then we get this:  “The trial court, which presided over this nine-week trial and observed the actions of all counsel, has thoroughly examined each allegation of misconduct and determined that a new trial was not warranted.”  That “thoroughly” word, like the “careful” word at the beginning of the opinion, is more wishful than accurate.

Look, we think we have a pretty good idea what actually happened here.  A hyper-aggressive plaintiff attorney pushed the envelope at every opportunity.  Sometimes the judge shut him down, sometimes not.  Even when the court did shut the plaintiff lawyer down, when the sun would rise on a new day, the lawyer would try again.  Persistence, even persistent disregard of a court’s rulings, can pay off.  And then as the case heads into a fourth and fifth week, or an eighth and ninth week, the court knows that it does not want to declare a mistrial or do something that will mean that all that time was spent in vain.  Not only does the court know this, but the plaintiff lawyer knows this.  Things go from bad to worse.

Then the defense does the best it can to preserve issues for appeal.  This necessary and appropriate maneuver angers the trial judge, who is no-way-no-how going to undo or rein in the jury’s verdict.  So then it is up to the appellate court to correct this abomination.  Or it can take the easy way out.  That is bad enough for the particular case, but it is even worse in terms of how it emboldens lawyers to punch a hole in the next envelope.