Forget the Reptile Theory; today’s topic is even more atavistic than that – what defendants can rely on when xenophobia and racism invade the courtroom.  That kind of sub-reptilian gambit unfortunately still exists, and can play out in a number of ways.

Sometimes an appeal to prejudice is made via raw, frontal assault – often when plaintiffs’ lawyers play to a jury’s perceived nativist impulses because the defendant is a company based in Europe, Japan, or more frequently these days, India or China.  A leading example (not a drug/device case) of such conduct is Gearhart v. Uniden Corp., 781 F.2d 147 (8th Cir. 1986) (the red flag isn’t about this issue), granting a new trial in part for plaintiff’s counsel’s xenophobic closing:

[P]laintiff’s references in closing argument to defendant’s foreign parent corporations were improper. . . .  [S]uch repeated references to Far Eastern parent corporations and “foreign goods” or “foreign products,” could prejudicially appeal to xenophobia and the current United States-Japanese trade imbalance.  Such remarks should not be permitted on retrial.

Id. at 153.

More generally, an “us-against-them plea can have no appeal other than to prejudice by pitting ‘the community’ against a nonresident corporation.”  Westbrook v. General Tire & Rubber Co., 754 F.2d 1233, 1238 (5th Cir. 1985).  “Such appeals serve no proper purpose and carry the potential of substantial injustice when invoked against outsiders.”  Id. at 1239.  Indeed, a plaintiff’s “vicious, inflammatory argument” that “inten[ded] to identify the . . . defendants with the Japanese” was sufficient to require reversal of a verdict even in the absence of any contemporaneous objection.  Toyota of Florence, Inc. v. Lynch, 442 S.E.2d 611, 615 (S.C. 1994).  Accord LeBlanc v. American Honda Motor Co., 688 A.2d 556, 561 (N.H. 1997) (“remarks, calculated as they were to encourage the jury to make a decision based on bias rather than reason and the presented evidence, were so prejudicial as to require a new trial”) (citation and quotation marks omitted); Jinro America, Inc. v. Secure Investments, Inc., 266 F.3d 993, 1009 (9th Cir. 2001) (new trial required because a party’s “status as a Korean business was exploited” and “begged the jury to draw an inference adverse . . . based entirely on its ethnic identity or national origin”); Boyle v. Mannesmann Demag Corp., 991 F.2d 794 (6th Cir. 1993) (“repeated references to a party’s citizenship or nationality can be unduly prejudicial to that party”); Foster v. Crawford Shipping Co., 496 F.2d 788, 792 (3d Cir. 1974) (closing argument emphasizing defendant’s “foreign ownership” justified conclusion “that the refusal of the district court to grant a new trial was inconsistent with substantial justice”); Whirlpool Corp. v. TST Water, LLC, 2017 WL 2931403, at *1 (E.D. Tex. March 3, 2017) (“There will be no disparaging or denigrating of witnesses by nationality or of any individual by nationality. There will be no direct or indirect, overt or non-overt attempt to show that something is superior or inferior based on its place of origin.”); Steffy v. Home Depot, Inc., 2009 WL 4279878, at *2 (M.D. Pa. June 15, 2009) (court “not persuaded by the Plaintiffs’ arguments that the [product’s foreign] origin is relevant to any issue remaining in this case”); Nair v. Columbus State Community College, 2008 WL 3822341, at *6 (S.D. Ohio Aug. 12, 2008) (“[a]ny argument to the jury or evidence based on xenophobic or nationalistic fears of individuals of different national origin would, of course, be unduly prejudicial and excludable”); Dyson Technology Ltd. v. Maytag Corp., 2007 WL 6599027, at *2 (D. Del. May 25, 2007) (a party’s “foreigner status” “has only marginal probative value, which is substantially outweighed by the prejudice”); Saad v. Shimano America Corp., 2000 WL 1036253, at *25 (N.D. Ill. July 24, 2000) (“the Court cannot see any possible relevance or materiality in the fact that defendant . . . is a subsidiary of a Japanese corporation”); Sanford v. Ektelon/Prince Sports Group, Inc., No. 8:97CV368, 1999 WL 33544436, *3 (D. Neb. Nov. 5, 1999) (“references to foreign affiliation in this case would be prejudicial to the defendants and such references are not relevant to the issues in this case”); Donelly Corp. v. Gentex Corp., 918 F. Supp. 1126, 1136 (W.D. Mich. 1996) (“nationalistic rhetoric . . . [was] calculated to play on the jury’s passions and prejudices and should be excluded at trial”); Hong v. City of St. Louis, 698 F. Supp. 180, 182-83 (E.D. Mo. 1988) (new trial required by defense counsel’s closing argument appealing to jury’s xenophobic tendencies).  Cf. Pappas v. Middle Earth Condominium Ass’n, 963 F.2d 534, 539-40 (2d Cir. 1992) (comprehensive opinion ordering new trial due to appeals to “regional bias”).

In the prescription medical product liability arena, the leading case is In re Heparin Product Liability Litigation, 2011 WL 1059660 (N.D. Ohio March 21, 2011), where the plaintiff called a purported “expert” in “Chinese culture.”  This expert claimed he could “‘see beyond the facade in China’ in a way that others cannot,” and opined that the defendant should never have bought anything from any Chinese source.  Id. at *9.  The testimony was outright xenophobia, and the court resoundingly rejected its rank attempt to appeal to anti-foreign prejudices.

First, the “expert’s” racially tinged opinions were purely a product of the expert’s prejudices, and untethered to the facts of the case:

[The expert’s] opinions with regard to the common practices of Chinese manufacturers and suppliers have not been tested or subjected to peer review or otherwise corroborated.  At his deposition, [he] asserted that his conclusions are based on “common knowledge” and incapable of support by statistical data . . . .

[The expert’s] opinions are entirely personal, based on his own and, to be sure, relatively extensive, experience with a broad range of businesses in China.  But [the expert] sees those experiences and the views they have created through the lens of subjectivity. . . .  [He] has no basis to apply his opinions reliably to the pharmaceutical industry.  He has no professional experience with pharmaceutical . . . manufacturing outside of this litigation. . . .  [N]owhere does he explain how his observations about Chinese business practices relate to the Defendants.

Id. at *10-11.

Second, the entire subject was a blatant appeal to juror prejudice, and the court properly ruled it had no business in a product liability trial:

Whatever slight probative value his opinions might have is substantially outweighed by the risk of unfair prejudice.  His generalized opinions about Chinese culture and business practice have no link to the parties involved in this case and have a serious risk of prejudicing the jury.  Courts repeatedly exclude this type of testimony because the risk of racial or ethnic stereotyping is substantial, appealing to bias, guilt by association and even xenophobia.  Accordingly, Defendants’ motion shall be granted.

Id. at *11 (citation omitted).

Since plaintiffs in the vaginal mesh litigation seem to have plumbed all of the depths to which litigation could sink, it’s probably not surprising that they tried the xenophobia angle, too.  In Hershberger v. Ethicon Endo Surgery, 2012 WL 10679416 (S.D.W. Va. March 29, 2012), the defendants’ in limine motion to exclude “xenophobic statements” by the plaintiffs was granted.  It seems that plaintiffs intended to make an issue of the defendant having a manufacturing plant in Mexico:

Defendants also seek to exclude any evidence regarding the pay and educational level of . . . employees at [a] Juarez, Mexico manufacturing facility. . . .  Plaintiff’s only responses are that Defendants misunderstand the denotation of the word “xenophobic” and that the pay and educational level of [defendant’s] Juarez employees is indeed relevant evidence.  Plaintiff does not attempt to argue to what element or issue such evidence would be relevant. . . .  The Court is unable to perceive the relevance of this evidence.  At best, the evidence permits a jury to infer that uneducated Mexican workers who are allegedly underpaid are more likely to be negligent in performing their work.  Further, regardless of the evidence’s relevance, the probative value appears substantially outweighed by danger of unfair prejudice to Defendants.

Id. at *6.  A similar motion was granted in Mahaney v. Novartis Pharmaceuticals Corp., 835 F. Supp.2d 299 (W.D. Ky. 2011), reconsideration granted on other grounds, 2012 WL 12996015 (W.D. Ky. Jan. 4, 2012), where for reasons that remained obscure, the plaintiffs were bound and determined to emphasize the defendant being a foreign corporation headquartered in Switzerland.  Mahaney ruled that “[p]laintiff has not offered a legitimate basis why this information is relevant to the current proceedings.  Accordingly, the Court finds the location of [defendant’s] principal offices inadmissible.”  Id. at 319.

Against United States-based companies, plaintiff have to shift from xenophobia to outright appeals to racism.  In one of last year’s top-ten cases, In re DePuy Orthopaedics, Inc., Pinnacle Hip Implant Products Liability Litigation, 888 F.3d 753 (5th Cir. 2018), plaintiffs’ counsel got hammered, in part for attempting to stir up racial animus against an American company.  The trial court’s admission of “allegations of race discrimination” having nothing to do with the medical device at issue were grounds for a new trial:

[R]eference to a “filthy . . . racial email” resurfaced once more during [counsel’s] closing argument. . . .  In reading the letter to the jury, [counsel] refocused its attention on serious, and seriously distracting, claims of racial discrimination that defendants had no meaningful opportunity to rebut via cross-examination.  This spectacle fortifies our conviction that a new trial is required.

Id. at 786-87 (footnotes omitted).  See also Bird v. Glacier Electric Cooperative, Inc., 255 F.3d 1136, 1151 (9th Cir. 2001) (new trial required by “statements [that] were an emotionally-charged appeal to [ethnic] collective memory, encouraging the jury to consider historical racial oppression”); United States v. Doe, 903 F.2d 16, 26 (D.C. Cir. 1990) (“Even if brief, the use of race as a factor in closing argument is improper.”); Tierco Maryland, Inc. v. Williams, 849 A.2d 504, 523 (Md. 2004) (new trial ordered where “there exists a significant probability that the jury’s verdicts in the present case were influenced by [plaintiffs’] irrelevant and improper injection of racial considerations into the trial”); General Motors Acceptance Corp. v. Baymon, 732 So. 2d 262, 272 (Miss. 1999) (new trial required where plaintiff’s “trial counsel blatantly played the ‘race card’ before the jury” using “irrelevant, prejudicial and inflammatory statements to prove that [defendant] discriminated against African-Americans”); F.J.W. Enterprises, Inc. v. Johnson, 746 So. 2d 1145, 1147 (Fla.. App. 1999) (“plaintiff’s counsel’s statement . . . that the defense had played the race card” required a new trial despite upheld objection because “the skunk had been released into the jury box”); Kolaric v. Kaufman, 67 Cal. Rptr. 729, 733 (App. 1968) (“It is a universal rule that the questioning or argument of counsel relative to the race, nationality or religion of a party, when irrelevant to the issues, is improper”).

A more nuanced appeal by a pharmaceutical plaintiff’s counsel to the jury’s racial feeling was grounds for a new trial in Stanton v. Astra Pharmaceutical Products, Inc., 718 F.2d 553, 555 (3d Cir. 1983).  Instead of appealing to animus, counsel used race as an inducement, telling the jury, “we were concerned about the effect of having black people come to an area where there are not many black people and expecting to get justice from a jury which is mostly white people.”  Id. at 578-79.  This appeal to the jury to prove that they were not racists by bringing back a plaintiff’s verdict was unanimously declared improper:

[T]he statements go beyond the ambit of proper opening statement.  Accordingly, the remarks should not be repeated in the opening statement at the retrial.  We add that significant portions of the quoted remarks are, at all events, beyond the realm of appropriate advocacy. . . .  [T]here must be limits to pleas of pure passion and there must be restraints against blatant appeals to bias and prejudice.  Justice must not be based on racial sympathy or animosity.

Id. at 579 (citations and quotation marks omitted).  Accord Texas Employers’ Insurance Ass’n v. Guerrero, 800 S.W.2d 859, 865-66 (Tex. App. 1990) (“state-of-the-art ethnic plea in closing argument” presented as an “appeal for unity” required new trial; “[s]uch arguments are forbidden, and it matters not whether counsel suggests − depending upon the venue − that the jury reward or penalize a litigant for belonging or not belonging to a racial or ethnic group”).

We’d like to tell you that these sorts of tactics by our opponents are things of the past, but unfortunately we can’t.  With racial or ethnic incidents reported in the press on practically a daily basis, it would be naïve not to expect at least some trial lawyers to seek to connect with juries in such sub-Reptilian ways.