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

We’ve been following the Pinnacle MDL closely through the last two bellwether trials, starting with the news coming out of the second bellwether trial of particularly curious and prejudicial evidence being presented to the jury. Given that evidence, we expected a plaintiffs’ victory, an expectation that was borne out with a whopping $498 million verdict. It raised an immediate question: “What will the Fifth Circuit do?”

Well, we’re on our way to finding out. The defense recently filed their opening appellate brief. While it features the controversial evidentiary rulings, much more is in play. If you would like to take a look for yourself, here is the brief.  Below are some of the key issues, along with a quick description of the defense’s arguments:

Design Defect Claim against DePuy (Brief at 20-29): Claim that all metal-on-metal hip implants are defective is not viable under Texas law because a wholly different product cannot serve as a safer design; design claim is preempted because the FDA approved metal-on-metal hip implants; and design claim fails under Restatement (Second) of Torts 402A comment k (adopted in Texas), which recognizes that products like implantable devices are unavoidably unsafe and therefore not defective if properly made and warned about.

Failure to Warn (Marketing Defect) against DePuy (Brief at 30-36): Instructions for Use warn about the alleged defects; plaintiffs presented no warnings defect expert, as required under Texas law; and no surgeon testified that additional warnings would have changed her decision, negating proximate cause.

Claims against J&J (Brief at 42-51): Plaintiffs’ nonmanufacturing seller claim nonsensically tries to take the failure to satisfy an affirmative defense and turn it into an affirmative claim; J&J could not have aided and abetted DePuy because there is no such claim under Texas law; and plaintiffs’ “negligent undertaking” claims focus on J&J subsidiaries, not J&J.

Refusing to Allow Bifurcation of Punitive Damages Determination (Brief at 67-70): Court misread the interplay between state and federal law and allowed punitive evidence during the merits trial (thereby, apparently blowing the door wide open for the evidence discussed below).

Highly Inflammatory, Irrelevant and Unduly Prejudicial Evidence (Brief at 51-67): This is what caused all the ruckus. Here’s a teaser for you, from the summary of argument section of the brief, before you (or if you don’t want to) read the full argument:

To distract from their evidentiary shortcomings, plaintiffs’ counsel repeatedly introduced evidence and made arguments that served no plausible purpose other than to inflame the jury’s passions. This “evidence” included: references to “bribes” supposedly paid to Saddam Hussein’s “henchmen” by a different nonparty J&J subsidiary; references to risks of cancer and suicide that were not even alleged here; references to inflammatory allegations of racism by DePuy employees; references to over 45,000 lawsuits facing a different nonparty J&J subsidiary over pelvic mesh products; and attempts to link DePuy and J&J to “big tobacco,” “Love Canal,” and the “utility … portrayed in the movie Erin Brockovich.” Appellants’ repeated objections to this irrelevant and highly prejudicial evidence (and their multiple motions for mistrial) were overruled or denied.

(Brief. 12-13.)  Phew.

The plaintiffs’ opposition brief is due at the end of the month.