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

We’ve been posting for a few months about the procedural and evidentiary controversies that have arisen in the Pinnacle Hip Implant MDL bellwether process. The second bellwether trial involved significant evidentiary and procedural rulings that raised eyebrows across the defense bar (discussed here and here). After that trial unsurprisingly produced a ½ billion dollar jury verdict, the defense asked the MDL Court to stay further bellwether trials so that the Fifth Circuit could review those rulings. No luck. Instead, the MDL Court ordered that the next bellwether trial should happen—and quickly (discussed here). After all that, and with the third bellwether trial approaching fast, the defense must feel like the coyote lying flat on the ground staring up at the bottom of a plummeting anvil coming at him a second time.

Undaunted, however, the defense has now filed a motion to continue the third bellwether trial, a motion that raises serious concerns about the time allotted to “work-up” the plaintiffs’ cases that will be involved in the trial. The defense argues that the allotted time is simply too short, not providing enough time for the complex medical issues underlying each plaintiff’s case to be developed and understood so that a trial can produce the type of verdicts that can advance the MDL process. To illustrate this, the defense compared the discovery and pre-trial periods that led up to the second bellwether trial (Aoki) to those leading up to this trial:

  • In Aoki, there were 11 months between case selection and trial (2/27/2015-1/11/2016); here, by contrast, there are just 3 ½ months between case selection and trial (6/10/2016-9/26/2016).
  • In Aoki, there were more than seven months between case selection and the due dates for defendants’ expert reports (2/27/2015-10/9/2015); here, by contrast, there are just 2 ½ months between case selection and the due date for defendants’ expert reports (6/10/2016-8/26/2016).
  • The Aoki schedule afforded defendants eight weeks to respond to plaintiffs’ expert reports (8/14/2015-10/9/2015); here, by contrast, defendants are being given just two weeks to analyze and respond to plaintiffs’ expert reports.

(Defense Br. at 9.)

This truncated schedule, the defense argues, is inadequate to gather medical records, prepare defense expert reports, or effectively brief and decide dispositive legal issues. For example, the defense still doesn’t have important medical records for three of the bellwether cases. The defense also just recently received about 2,400 pages of medical records in a fourth bellwether case. Yet the defense must serve expert reports in a few days, and trial starts in less than four weeks. The defense must also serve all of its expert reports before it has had the opportunity to depose seven of the eight treating surgeons whose depositions it has requested. You don’t need to be a veteran of medical device mass tort trials to know how important medical records, treating physician testimony and expert opinions are at trial. Jury verdicts often turn on just this type of evidence. Moreover, the court scheduled Daubert and other potentially dispositive motions to be filed on the same day it begins picking a jury. Without addressing whether that schedule already signals that the court intends to go forward with the trial, it certainly doesn’t seem to give the court enough time to give these motions the type of pre-trial consideration that they require. We have seen many a bellwether trial stopped—and rightfully so—by a Daubert motion that highlighted a lack of scientific merit in the plaintiff’s case.

Plaintiffs have responded by arguing that the defense already has enough medical records, that its experts should be able to draft and serve case-specific expert reports very quickly, and that the Court has issued Daubert decisions in the past—which plaintiffs no doubt liked—and so the Court can easily decide the new motions quickly. In other words, full speed ahead.

Given how things have gone so far in this MDL, we don’t expect the court to grant the defense’s request for a continuance. But, with each such decision, the list of evidentiary, procedural and now case-management issues for the Fifth Circuit to consider grows. This all may result in a very interesting Fifth Circuit opinion addressing the things to do, and not to do, when managing a mass tort.  And so, of course, we will continue to follow . . . .