Lately, we’ve seen some plaintiffs add gag order requests to their complement of in limine motions in advance of significant trials. Those of us who participated in the Bone Screw litigation remember plaintiffs attempting – and failing − to prevent the defendants from communicating with their customers (implanting physicians) about that litigation.  Unfortunately, no order resulted.  The first gag order relating to advertising involving civil litigation was entered at about the same time as our Bone Screw brouhaha in a securities-related case. Koch v. Koch Industries, Inc., 2 F. Supp.2d 1409 (D. Kan. 1998).  The court gagged both sides equally, and only after both sides agreed.  Id. at 1415 (“plaintiffs also ask the court to enter an order prohibiting the defendants from advertising” [and] “defendants apparently agree that the court should preclude both sides . . . from advertising”).

Advertisements published or to be published by the parties in this case, whether selling products or ostensibly serving the public interest, seemingly carry messages directed at swaying public sentiment to that party’s side in this case. In short, this case will tried in the courthouse; any attempt to try this matter in the media ends now.  In reaching this decision, the court has considered less restrictive means of preventing unfair prejudice attributable to pretrial publicity.  Unfortunately, the court can devise no content-based restriction that will be fairly and equally applied to the parties.  In light of the parties’ respective requests for restraint, a total ban on advertising is not only simple and expedient, but seems most equitable.

Id. See also Pfahler v. Swimm, 2008 WL 323244, at *2 (D. Colo. Feb. 4, 2008) (rejecting plaintiffs’ request for civil gag order).  Moreover, no matter what the parties might have been trying to communicate to potential jurors in Koch (there had also been a rather questionable opinion “poll” taken by one of the parties), we’re sure that they weren’t discussions of life saving medical products – or even corporate feel-good advertising of the sort seen while watching “Meet the Press” and other similar Sunday talk shows.

In prescription medical product liability litigation, such distinctions so far haven’t mattered much. The First Amendment implications of gag orders against pre-trial advertising have been obvious to courts.  In In re Yasmin & Yaz (Drospirenone) Marketing, Sales Practices & Products Liability Litigation, 2011 WL 6740391 (S.D. Ill. Dec. 22, 2011), the plaintiffs moved in limine to prohibit the defendant from “initiating new advertising and marketing campaigns related to it being a good company that makes life-saving medicines” in the location of the trial or “or generating pretrial publicity before jury selection and during the trial in this case.”  Id. at *19.  The motion was denied, largely on First Amendment grounds:

The Court finds that [defendant] denies any intent to engage in such pretrial publicity and plaintiff cannot direct the Court to any specific examples of offending advertising.  Further, prior restraint of First Amendment rights is very serious.  The Court would have to view the content of specific advertising prior to granting an order prohibiting it.

Id. The First Amendment also precluded a similar request in in In re Tylenol (Acetaminophen) Marketing, Sales Practices & Products Liability Litigation, 2016 WL 3125428 (E.D. Pa. June 3, 2016):

The plaintiff’s request is somewhat unprecedented − to ask a civil defendant to restrain from engaging in certain marketing tactics pre-trial. . . . Pretrial publicity could affect the fairness of a civil trial by tainting the jury pool and process.  A prior restraint is one of the most extraordinary remedies known to our jurisprudence.  Prior restraints on speech and publication are the most serious and the least tolerable infringement on First Amendment rights. . . .  There is no reason to impose restraints on the defendants’ speech rights at this time.  The defendants claim they do not plan to engage in pretrial advertising or publicity to bolster their reputation. . . .  [T]he extent and nature of the unfair publicity the plaintiff wishes to have restrained is vague and unclear.  Though the plaintiff claims her request is narrowly tailored because it limits the plaintiff to “the time preceding and during trials” and “in the limited market,” these limitations are not well-defined.  They also could impose an undue burden on the defendants’ speech rights when other means are available to mitigate juror bias.

Id. at *3 (citations, including to Koch, omitted).  Other product liability decisions rejecting similar plaintiff-side requests are: In re Prempro Products Liability Litigation (Hill), 2007 WL 3217470, at *4 (E.D. Ark. Oct. 26, 2007); In re Prempro Products Liability Litigation (Scroggin), 2007 WL 3125106, at *4 (E.D. Ark. Oct. 24, 2007); In re Prempro Products Liability Litigation (Rush), 2006 WL 3806391, at *2 (E.D. Ark. Dec. 27, 2006).  Diet Drug plaintiffs also tried this same tactic elsewhere, to no avail.

Then there is the interesting, and apparently agreed-upon, order entered concerning “communication with the media” in Norplant litigation.  Both sides agreed not to talk to the press, subject to two exceptions:

(3) Subject to the provisions of paragraph 5 [relating to abuse], this order does not prohibit counsel for plaintiffs from advertising their services to women who have used the Norplant System.

(4) Subject to the provisions of paragraph 5 [same], this order does not prohibit defendants from advertising the Norplant System and engaging in communications appropriate to the continued sale of the product, including, for example, responding to inquiries about the product from health care providers, scientists, researchers, government agencies, regulatory authorities, past, present and prospective users, and the media (regarding the product only, not the litigation).

In re Norplant Contraceptive Products Liability Litigation, 1996 WL 675561, at *1 (E.D. Tex. Nov. 14, 1996).

The Norplant order is particularly prescient in this context, in that it brings up the subject of plaintiff-side lawyer advertising.  The prejudicial effect of such advertising has itself been recognized. See Janssen Pharmaceutica, Inc. v. Bailey, 878 So. 2d 31, 51 (Miss. 2004) (change of venue appropriate where potential jurors had been “bombarded with attorney advertisements, attorney-organized meetings and plaintiff-propelled gossip”).  To the extent that plaintiffs seek in limine orders precluding defendants from engaging in advertising defending their products, defendants would be well-justified in countering with similar requests to shut down plaintiff-side advertising concerning the same products, in the same geographic area, for the same time period.  Such solicitation is far more pernicious than anything a defendant would do.  Often such ads are falsely mimic newscasts.  Many disguise their source, containing the names of dummy firms that don’t even  litigate.  Because the other side is not subject to FDA “balance” requirements, they routinely make overblown risk claims that never could stand up to FDA scrutiny.  Anything plaintiffs could possibly claim in support of an in limine gag order, they are already doing far worse.  If they want to play the silence-your-opponent game. a cross motion would certainly be in order.  In active litigation centers, the frequency of trials could result in overlapping gag orders shutting down this type of solicitation for extended periods.  What’s sauce for the goose….