This post comes from the Cozen O’Connor side of the blog.

After two months, the third bellwether trial in the Pinnacle Hip Implant MDL is coming to an end. The jury heard closing arguments yesterday and began deliberating late in the afternoon. They start up again this morning.

Much like the second bellwether trial, this trial was not without controversy. The signs were ominous before it began.  Two weeks before trial, the court issued a sua sponte order consolidating six separate plaintiffs for the trial, close to any defendant’s worst nightmare. The court also ruled that plaintiffs could serve notices that would require company witnesses who were outside the geographic reach of the court to nonetheless testify live via satellite. Defendants could not substitute trial depositions for the satellite testimony, even though trial depositions had already been taken, complete with cross-examination of the witnesses by plaintiffs’ counsel. This order was sufficiently controversial that a Fifth Circuit judge, while concurring with his colleagues’ decision to reject defendants’ writ of mandamus challenging the order, chose to issue a one-sentence concurring opinion saying that the MDL judge got it wrong.

And after the trial got started, the controversial rulings continued. The Court once again allowed plaintiffs to use a deferred prosecution agreement addressing alleged FCPA violations outside the US to suggest to the jury that defendants were found to have acted criminally, even though the DPA is a settlement with no findings of violations. The court also allowed plaintiffs to introduce testimony and ask questions suggesting a connection between Pinnacle hip implants and a future risk of systemic illness, such as cancer, even though no plaintiffs’ expert testified that any of the six plaintiffs was at an increased risk of cancer or a systemic illness. This testimony was pervasive enough at trial that two of the plaintiffs then took the stand and told the jury that, while they had not been concerned about the increased risk of these systemic illnesses before the trial, they had become fearful of it after hearing the testimony in the courtroom—even though no doctor had told them that they were at such an increased risk.

There were procedural issues too. Plaintiffs leveraged the court’s pretrial ruling and required one of the defendant’s out-of-state witnesses to testify via satellite. During trial, the court also rejected defendants’ request to play a video deposition, at which plaintiffs had been present and cross-examined, of a company witness who lived in the UK. Despite this witness being on the other side of the Atlantic, the court held that the defendants would have to produce the witness live in the courtroom, something that would, of course, become virtually impossible at bellwether trial after bellwether trial for this and any other witness not near Dallas. The court also strayed from a strict time limit that it had placed on both sides. Before the trial started, the judge imposed a seventy-hour time limit on each side for direct and cross examinations. But, when the plaintiffs got to seventy hours (and defendants were still well under the limit), the court allowed plaintiffs to continue questioning. If you recall, in the first trial, the court initially imposed no time limits, but then did so only after plaintiffs had finished their case and defendants had started theirs.

We understand that parts of the jury charge are controversial too. For instance, there is a charge addressing how Johnson & Johnson could be held liable for conspiring with DePuy to commit negligence. A negligence conspiracy? That one is hard to get your head around.

All of this, and more, produced at least four mistrial motions by defendants. It’s safe to say that this trial has been as interesting and controversial as the last one. And we’ll soon hear the jury speak, though we know how that went the last time.