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

There have been further doings in the Pinnacle Hip Implant MDL. Over three months ago, we addressed (here) our concerns with the potential impact of a string of evidentiary and procedural rulings at the second MDL bellwether trial. Then, ten days later, we wrote (here) about the outsized half-billion dollar verdict that followed. It was, all at once, unsurprising and jaw-dropping. For sure, we were critical of the rulings. But our greater concern was that the rulings and resulting large plaintiff verdicts would do nothing to facilitate resolution of the MDL. They would only harden the defense’s resolution to continue to litigate to properly value the cases.

The defense continues to battle these rulings. It recently asked the MDL court to stay further bellwether trials pending its rulings on post-trial motions (which, apparently, have not yet been issued) and the subsequent appeal to the Fifth Circuit. Here’s how the defense put it:

As set forth below, defendants intend to raise several issues on appeal, subject to the Court’s rulings on defendants’ post-trial motions, that are likely to have far-reaching implications for how cases in this MDL proceeding are tried. In particular, as the Court and plaintiffs are aware, defendants believe that several critical pieces of evidence introduced by plaintiffs during trial were extremely prejudicial and inflammatory – including, for example, references to Saddam Hussein’s “henchmen,” unsupported speculation that plaintiffs might develop cancer as a result of their Pinnacle implants, and references to hearsay statements in a book entitled Doubt Is Their Product that broadly attacks a number of U.S. industries as well as lawyers and expert witnesses who have testified on behalf of various U.S. companies with no connection to this litigation. In addition, these cases present significant legal issues that are likely to recur in future cases, including the propriety of consolidating dissimilar cases for trial; the refusal to grant defendants’ request to bifurcate the question of the amount of exemplary damages; and federal preemption issues raised by plaintiffs’ uniquely broad theory that all metal-on-metal hip implants are inherently defective.

Plaintiffs will undoubtedly pursue similar rulings on most if not all of these issues in all future cases tried in this Court. As such, it would not be productive to proceed with additional trials until an appeal from the judgments in the Aoki cases is completed. “Should the Fifth Circuit reverse any of this Court’s significant rulings” overruling defendants’ substantial objections to the improper evidence or rejecting defendants’ arguments regarding consolidation, preemption, or other legal matters, “it would potentially necessitate a retrial of any bellwether trials conducted during the pendency of the [Aoki cases] appeal.” Greco v. Nat’l Football League, 116 F. Supp. 3d 744, 761 (N.D. Tex. 2015) (emphasis added). Such an exercise would be highly inefficient, impose enormous costs on both parties, and needlessly waste the Court’s limited time and resources. Particularly given the Court’s preference for multi-plaintiff trials, the Court and the parties should not plow ahead with more trials absent guidance from the Fifth Circuit. Otherwise, the Court could find itself in the position of having to retry a significant number of cases.

Understood. The ultimate goal of bellwether trials is to efficiently and properly resolve a litigation with thousands of plaintiffs. That goal is never advanced by a series of skewed verdicts. As we discussed in our previous posts, verdicts resulting from questionable evidentiary and procedural rulings leave one side overvaluing cases and the other side believing that they haven’t been valued at all. That’s no way to get to a settlement.

So what was the result of the defense’s motion? Not good. Last week, the trial court doubled down, teeing up the next bellwether trial for September, three months from now, but this time with seven plaintiffs, two more than the last bellwether trial. Ugh.

This certainly seems like a litigation in need of appellate review. Another multi-plaintiff bellwether trial with the same evidentiary and procedural rulings seems highly unlikely to offer new information. In fact, it seems like a step further away from an ultimate settlement, not closer to it.

The Fifth Circuit will eventually weigh in. The sooner, the better.