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This post comes from the non-Reed Smith side of the blog.

We suggested in our most recent post on the Pinnacle Hip Implant MDL that, the sooner the Fifth Circuit weighs in on the evidentiary and procedural concerns being raised by the defense, the better. The defense is trying for sooner.

On Thursday, the defense filed in the Fifth Circuit a Petition for a Writ of Mandamus to the MDL court. This isn’t a petition asking the Fifth Circuit to review the evidentiary and procedural rulings that the defense has been raising since the second bellwether trial was scheduled. It couldn’t do that. But the petition does ask the Fifth Circuit to order the MDL court to do the things that are necessary to allow the Fifth Circuit to conduct that review. And it asks that, in the meantime, the Fifth Circuit stop the bellwether process:

Petitioners seek a writ from this Court directing the district court to: (1) vacate its Order on Bellwether Trials, dated June 10, 2016, which scheduled a trial for September 6, 2016 (Exhibit A); (2) rule promptly on petitioners’ pending post-trial motions in the last bellwether trial; and (3) enter judgment in those cases so that an appeal may follow, see Fed. R. Civ. P. 58(b).

Petition at 1.

It seems that a significant amount of paperwork has been piling up on the MDL court’s desk. The MDL court hasn’t entered final judgment on the first bellwether trial, even though that verdict will soon be two years old. The MDL court has also not ruled on the post-trial motions from, or entered judgment on, the second bellwether trial, the one that raised so many procedural and evidentiary concerns and resulted in a half-billion dollar verdict.

The defense did not mince words on why it filed its petition, arguing that the MDL court’s procedural and evidentiary rulings have destroyed the representative nature of the bellwether process, placing the litigation in an unhelpful place from which settlement pressure is applied while little to no information on the true value of plaintiffs’ claims is learned:

First, the bellwether process has been sapped of its putative benefits. Bellwether cases are supposed to be representative cases that aid the parties in efficiently resolving large-scale litigation. Instead, the MDL court has destroyed the representative character of the cases by making legal and evidentiary rulings that would not be followed by other courts. Second, by failing to enter final orders in the bellwether trials that have been litigated to verdict, the MDL court has deprived petitioners of a viable means of exercising their right to appeal to this Court. Third, the combined effect of this course of proceeding is to create significant settlement pressure before sufficient information about the claims pool can be obtained.

Petition at 14-15.

The defense also used the petition as an opportunity to flag for the Fifth Circuit the key MDL court rulings from the second bellwether trial that, as the defense put it, “would not be followed by other courts”:

[T]he MDL court entered a host of erroneous and prejudicial rulings in the last trial – from its decision to consolidate five disparate cases for trial without meaningful analysis, to its resolution of a range of legal issues in dispositive motions, to its evidentiary rulings allowing plaintiffs to inject inflammatory issues into trial.

This includes permitting plaintiffs’ counsel to:

    •  Ask a 30(b)(6) witness whether “bribes” were made by nonparty subsidiaries of J&J to “the henchmen of Saddam Hussein” and public officials in Iraq, Poland, and Romania. (See, e.g., 1/29/16 Trial Tr. 68:25-69:5, 77:8-13, 99:15-18 (attached as Ex. K).)
    • Introduce speculative evidence that plaintiffs face a risk of cancer as a result of having once had metal-on-metal hip implants,14 which led one plaintiff to testify later in the trial that after hearing the testimony, she was now worried about dying of cancer. (1/26/16 Trial Tr. 86:20-25 (attached as Ex. M); 1/27/16 Trial Tr. 234:10-14 (attached as Ex. N).)
    • Read into the record portions of a book maligning “industry” to the jury as though it were evidence, including pages of hearsay statements about supposedly improper scientific articles planted in the literature by “Big Tobacco” and other industries, and then insinuate that petitioners’ attorneys had similarly “maneuvered” science “to influence juries in litigation.” (2/25/16 Trial Tr. 124:1-18, 126:10, 126:12, 127:3-9, 127:18-128:9, 132:10-133:5.)
    • Introduce into the record emails from an African-American individual who was formerly employed by DePuy, containing, inter alia, unproven allegations of “nepotism, favoritism, and racism” on the part of other DePuy employees. (1/13/16 Trial Tr. 95:7-100:23 (attached as Ex. O).)
    • Refer to “thousands” of other Pinnacle lawsuits and tell the jury that the Pinnacle Ultamet has been a “tragic failure[],” as evidenced by the fact that “[t]here have been thousands of cases” filed against defendants, in addition to the five at issue in the second bellwether trial. (1/11/16 Trial Tr. 31:15-17 (attached as Ex. P).) These references were also a centerpiece of plaintiffs’ counsel’s closing argument, during which counsel told the jury that “[t]housands of people suffered.” (3/10/16 Trial Tr. 54:12; id. 54:14-15 (“[T]housands of them, are – they’re walking time bombs.”).)
    • Introduce evidence about 45,000 lawsuits that have been filed by women against a different J&J subsidiary with regard to transvaginal mesh products, presumably to prejudice the predominantly female jury against J&J. (1/15/16 Trial Tr. 221:16-24 (attached as Ex. Q).)
    • Show the jury an email by a plaintiffs’ expert who did not testify in which he speculated that a patient in whom he implanted a metal-on-metal hip implant “just committed suicide because he was so depressed and thought he would never resolve the issue. Shot himself.” (1/19/16 Trial Tr. 78:9-13 (attached as Ex. R).)

Petition at 19-21.

That is some list. We wonder whether it will have any influence on the Fifth Circuit. It’ll have to. Writs of mandamus to trial courts are extraordinarily rare.

In any event, at least for now, the defense is finally before the Fifth Circuit. We’ll continue to follow this one.