This post does not come from the Reed Smith side of the blog.

After two grueling months, the second bellwether trial in the Pinnacle Hip Implant MDL has gone to the jury.  The last time that happened—in 2014—the jury came back with a defense verdict.  It was a resounding and, to some, upset victory for the defense in a plaintiff-selected case in a Texas court against Texas plaintiffs’ lawyers.

But that was then.

Now, with a new trial and a line-up of five plaintiffs that could fill the courtroom’s front pew, the defense is facing a greater challenge.  Not that it hadn’t been foreshadowed.  Back in 2014, before the first trial, the court issued a series of pre-trial rulings that were concerning enough to us to warrant a post.  This time around, the court’s rulings during trial have caught our attention.

We should be clear that it’s fairly ordinary for a party to brief evidentiary rulings during a large trial.  But the evidentiary rulings receiving attention and mistrial motions during this Pinnacle trial are anything but ordinary.  By number and nature, they suggest an almost uninterrupted flow of unduly prejudicial and irrelevant information to the jury.  The evidence wanders far afield into areas that seem to have nothing to do with claims about failed hip implants.  It’s hard to fathom what vaginal mesh litigation, alleged FCPA violations, cancer theories, foul language, racism and suicide have to do with the trial, but the jury has heard it.  Here are examples of the evidence, references and suggestions that have been offered up during witness examination:

  • a former employees’ correspondence claiming racism that was used with a witness who never sent or received it;
  • a suicide by a Pinnacle hip implant patient unconnected to the trial but mentioned in an email;
  • a deferred prosecution agreement for alleged FCPA violations involving activities outside the United States, complete with a suggestion that Saddam Hussein was involved;
  • thousands of other Pinnacle hip implant litigations that aren’t part of this trial—as if the five cases grouped together for this trial were not enough;
  • the recall of a different product—the ASR hip implant device;
  • a plaintiffs’ expert’s hypothesis about the Pinnacle system possibly, maybe causing cancer;
  • treating doctors offering undisclosed opinions not formed during their treatment of the patient, which in one instance the court ordered cured by the submission of a report after the testimony came in;
  • multiple internal emails using foul language; and
  • tens of thousands lawsuits about vaginal mesh products, the relevance of which is mystifying to us.

There’s more.  Plaintiffs’ counsel was allowed to repeatedly suggest that cancer was a “concern” or “question,” which sounds like anything but a science-based assertion.  Heck, some of us who never had a hip implant have concerns about cancer every day.  Plaintiffs’ counsel was also allowed to cross examine an expert at length about a scientific consulting company that had worked with the tobacco and chemical industries to produce alleged pseudo-science on the toxicity of their products.  This cross-examination included extensive reading from a book criticizing this consulting company and the science.  Why on earth was this even used?  Was the expert connected to this group?  No, not at all.  He had cited certain articles in his otherwise lengthy reliance list that were authored by scientists connected to the consulting company.  The articles themselves weren’t connected to the group or its science. And yet the expert was nonetheless used as a prop to discuss this unconnected, prejudicial information in front of the jury.

Yet more.  In the middle of the defense’s case, the judge ruled that there would be only six more trial days.  Plaintiffs had already presented their case, fully and with no limitations. And plaintiffs had already used significantly more trial time than the defense (through lengthy direct and cross examinations).  We’ve never seen a time-limit imposed after one party had the opportunity to present its case in full with no limitations.  The court also ruled that the plaintiff could put on one more witness during those six days.

Now, we get it. Every trial is different.  The evidence comes in differently, logistical problems occur, and things happen in the court room that make otherwise irrelevant evidence admissible.  We have no doubt, for instance, that at some point during the trial the defense argued that the defendants accomplished a lot of good with good doctors and scientists. We’ve seen it before.  We’ve done it.  And some courts react by allowing the plaintiff to introduce evidence showing otherwise.  But not an avalanche of it.  Not an ongoing series of references to other litigations, other products, other countries, other scientists doing unrelated questionable work, racism, suicide and foul language. And certainly not last minute time restraints.  At some point, the trial could become about something else.  And a trial should never be about something else.

From an outsider’s view, it’s hard to see how the defense could get a complete defense verdict in this atmosphere.  It’s already near impossible in a five-plaintiff case without all this.  And it’s even harder to understand how this trial could advance the ultimate resolution of a mass tort.  If the defense loses, for instance, it will become more resolute (to the extent it hasn’t already) in the face of what it likely sees as unfair rulings. It certainly won’t believe that these cases were valued properly.  Mass torts settle on the basis of useful, meaningful valuations provided by bellwether trials, not pressure from bad verdicts in unreliable trials.  Those days are long gone.  On the other hand, if the defense pulls an unexpected upset in this atmosphere, it will only incentivize them to never settle.  And then what?

We’ll be following this one further.