Here we go. Again. The third bellwether trial in the Pinnacle Hip Implant MDL starts on October 3 (less than two weeks away), and the parties began picking a jury two days ago. The lawyers are, no doubt, hunkered down in their hotels and war rooms preparing for a trial that could last through the start of the holidays. And much of the mass tort world will be watching. That’s because the jury in the last bellwether trial came back with an incredible half-billion-dollar verdict at the end of a multi-plaintiff trial in which the court issued a long series of controversial evidentiary and procedural rulings.
And now, even before opening statements, there are ominous signs for the defense at this third bellwether trial. Three days ago, the court issued an order sua sponte—that is, with no briefing—confirming that it is consolidating six different plaintiffs at this one trial. That’s a lot of plaintiffs and no doubt a lot of differences. It’s hard to imagine jurors effectively keeping straight the case-specific evidence presented by each of these half-dozen plaintiffs, all while trying to sift through and understand mountains of complex scientific and medical information and avoid allowing their feelings as to any one plaintiff to affect their judgment as to the others. Without even considering the facts of the cases, a six-plaintiff trial is not good for defendants. There’s a reason that plaintiffs’ lawyers prefer multi-plaintiff trials and that defendants do not.
The court has also issued a procedural order whose impact could stretch beyond this litigation. Under FRCP 43(a), which addresses testimony in open court, the court ordered that plaintiffs may issue notices that require company witnesses who are outside the geographic reach of the MDL court in Dallas to nonetheless testify live at trial via satellite or other means of contemporaneous transmission. The impact of this ruling could be significant. In a mass-tort setting, there are many trials. Requiring company witnesses to prepare for and testify at trial after trial can and does create a significant burden, one that skilled plaintiffs’ lawyers recognize. This burden is ordinarily reduced by trial depositions that can be used at many trials. And these are no ordinary trial depositions. They usually take multiple days and address every key issue and key document. These video-taped trial depositions are not so different from live satellite trial testimony, as in each instance the witness is not in the courthouse or personally in front of the jury. The ramifications of this decision in this and other mass tort litigation is potentially significant. We will follow it closely, and we have no doubt that defendants are not done challenging this order.
Beyond this, we and much of the mass-tort world will be watching to see whether the court will once again allow plaintiffs’ attorneys to introduce to the same type of controversial information—from cancer theories to racism, Saddam Hussain, suicide and the behavior of scientists connected tobacco companies—that it allowed at the second bellwether trial.
Here we go. It all starts on October 3.