Here are some things you probably will not hear very often, if at all: 1) a fervent supporter of a defeated political candidate agreeing that the winning elected official has done a good job, regardless of economic growth, infrastructure projects, public health progress, or some other measure of good government; 2) a fervent supporter of the winning elected official agreeing that the official has done well enough, especially if the fervency hinged on a particular issue; 3) an NFL fan admitting that their team was treated fairly by the referees in a loss; 4) an NFL fan admitting that their team won a game against an inferior opponent by a wide enough margin; 5) a winning plaintiff lawyer acknowledging that a sizable award for “pain and suffering” was excessive and should be reduced; and 6) a losing plaintiff lawyer acknowledging that the plaintiff got more than a fair shake at trial. Several of these can be chalked up to the concept that humans, particularly modern American voters, fans, and lawyers, are never satisfied. Gordon Gecko may think greed is good, but sometimes reality and realistic evaluations of reality have to get in the way. With this fluffily philosophic predicate complete, we turn to the decision at hand.
We found the denial of the plaintiffs’ motion for new trial in Redick v. Smith & Nephew, Inc., MDL No. 2775, 1:17-cv-00944, 2022 WL 171503 (D. Md. Jan. 18, 2022), interesting not so much for the specific holdings but because of the insight the case provides into one of the more prevalent dynamics of modern MDLs. The MDL over the Birmingham Hip Resurfacing Device (“BHR”) was established in 2017 and had over 1000 pending cases as of the date of this opinion, good for nineteenth most in the country. Based on the decisions along the way we have seen and found blogworthy, the pretrial rulings in this MDL—remember, the MDL statute, 28 U.S.C. § 1407, talks about “pretrial proceedings” only—have been quite plaintiff friendly. Litigation over this PMA device has produced two separate preemption decisions that we deemed among our ten worst of the particular year (#6 in 2018 and #6 in 2021). Middling expert rulings continued to trip over preemption, among other things. The recurring message from these was that plaintiffs and their experts had to contort into uncomfortable shapes to fit through—from the MDL judge’s perspective—the narrow gap of express and implied preemption. As individual cases headed toward trial, perhaps hobbled by the past contortions, the court began to grant some summary judgments for the manufacturer on case-specific or state-specific issues that would not wipe out huge swaths of plaintiffs (or most of their claims), as better preemption rulings would have. See here, here, and here.
Redick is a case that made it past summary judgment and proceeded to trial in the summer of 2021. It was presumably a bellwether, as those are the only kinds of cases MDL courts can try, even among the most expansive interpretation of § 1407, and we do not know much about the merits other than the defendant won a jury verdict. (We can also use the internet and see that the plaintiffs were represented at trial by at least one member of the plaintiffs’ leadership for the MDL, reinforcing that this was not some random case.) The plaintiff moved for new trial and there was further briefing after a deposition of an Australian researcher who did not testify at the trial. Plaintiffs raised at least seven grounds for new trial, each of which was rejected. As one might expect with a ruling on a motion for new trial, the issues can be highly case-specific and turn on the particular procedural history of the case.
Redick is no different in some respects, but we do think it bears discussion. From the pretrial evidentiary rulings and various rulings during trial, we can tell that the plaintiffs got lots of leeway to prove their case and the manufacturer got far less. It looks like the only significant evidentiary ruling to not go plaintiffs’ way was that they were precluded from introducing evidence about the voluntary recall of some BHR models years after the implant at issue in Redick, something plaintiffs complained about in more than one of their arguments and apparently tried to undo at trial with failed claims of door opening. In short, the field was tilted in plaintiffs’ favor, they pushed hard for more tilting, and, after the defense verdict, they claimed they were prejudiced by the defendant getting to play some defense on that tilted field. (We will not complain if you think this description applies to every MDL trial with a defense verdict, but we will not say that ourselves.) There is some risk for the plaintiffs in taking this approach, though, as most arguments for new trial turn on prejudicial error by the very judge who has been favoring the plaintiffs along the way. For some reason, some judges are not terribly happy when accused of prejudicial error that was allegedly so bad that the three week trial over which they presided and all the pretrial hearings and rulings were for naught.
The two claims presented to the jury in Redick were for breach of express warranty and a novel negligence claim under North Carolina law. The jury must have answered fairly specific interrogatories, because the court reported that the jury found “no warranty had been made,” the defendant had made some “false or misleading representation,” and the implanting surgeon, who was working closely with the plaintiffs’ lawyers, “did not justifiably rely on that representation.” 2022 WL 171503, *1. These were classic case-specific failures of proof often seen with similar claims against the manufacturers of prescription medical products. As we recount the rulings on each of plaintiffs’ arguments for why the jury’s verdict should not stand, we will try to refrain from pointing out how favorable the rulings were along the way to get plaintiffs as far as they got. We will trust you to fill in the blanks.
First, plaintiffs complained about allegedly undisclosed opinion testimony offered by a defense expert. An issue at trial, and in the recall, was whether certain risks were higher in women (like the plaintiff receiving the implant) and patients receiving smaller implants. Here, the defense expert testified about what orthopedic surgeons knew or should have known about this risk at the time of implant, a subject implicated by plaintiffs’ claims. Id. at *2. Although not in the expert’s report, the opinion was disclosed in deposition, subject to questioning by plaintiffs then, and apparently countered in an anticipatory fashion by the implanter when he was called in plaintiffs’ case and opined on what a reasonable surgeon would have wanted to know. Id. That opinion was also undisclosed, yet it was allowed and the opinion of the defense expert was later stricken with a curative instruction to the jury. Despite this, plaintiffs complained of prejudice because more than a day passed between the testimony and telling the jury to disregard it. Id. at *3. Yet, plaintiff chose not to call their corresponding expert with advance knowledge of the defense expert’s opinion and the court still permitted plaintiff to recall the implanter—surely not an independent actor at this point—to rebut the defense expert’s opinion. On cross, the implanter blew up plaintiffs’ case by acknowledging he knew the allegedly increased risks for someone like plaintiff at the time of her implant. Id. Still, plaintiffs complained that they were prejudiced by “only” having parts of three days for their cross-examination of the defense expert. Not surprisingly, this was a problem of plaintiffs’ own making because they apparently tried to game the schedule by dropping several witnesses at the last minute. Of course, they got quite a bit of time for cross, which was actually more time than defendant had with its own expert. Moreover, plaintiffs could not identify anything new they would have done with even more time for cross, other than try to introduce excluded subjects like the recall. Id. at *4. This did not come close to the sort of prejudice that would require a new trial and, if you think the defendant would have made the same arguments were the positions reversed, we would like to offer you some great deals on beachfront Martian real estate.
Second, and more succinctly, plaintiffs complained that the court’s instruction and jury question on the novel negligence theory they were allowed to pursue actually required them to prove something. Plaintiffs originally pursued North Carolina’s recognized negligent misrepresentation claim, which included the element of plaintiff’s justifiable reliance on a misrepresentation. When convinced that North Carolina did not allow recovery for personal injury for negligent misrepresentation, the court allowed plaintiffs to proceed under “traditional negligence rules” for basically the same claim but with possible recovery for personal injury. Id. at *4. Rather than be thankful that the court had ignored Erie in expanding recovery under North Carolina law, plaintiffs were upset that the implanter’s justifiable reliable on a misrepresentation was part of what they had to prove for this novel claim. Predictably, the plaintiffs had recognized justifiable reliance as an “essential element” in earlier briefing and clearly tried to get the requisite evidence in at trial. Id. at *5. Their real problem, though, was that they had a failure of proof:
Contrary to the plaintiffs’ argument that the verdict was decided against the overwhelming weight of the evidence, however, [the implanter] also attested that he could not specifically recall ever seeing the dear doctor letters, that he was aware of the increased risk of revision in females and patients with small head sizes at the time of Ms. Redick’s implant, that he was familiar with the Australian registry data, and that he did not recall reading the 2010 label, which was available online and contained the risk information about females and patients needing smaller head sizes.
Id. No proof on reliance or proximate cause, no basis for a new trial.
Third, the plaintiffs griped that the court did not agree the door had been opened to the excluded post-implant recall and a post-implant report (that plaintiffs presumably claimed supported the risks of the device being greater than was thought at the time of implant). The cited testimony from defendant’s expert, however, had nothing to do with the excluded evidence and responded directly to evidence plaintiffs had already introduced, so there was no door opening. As a cited case said, “Properly admitted evidence does not open the door to inadmissible evidence.” Id. (citing U.S. v. Rea, 958 F.2d 1206, 1225 (2d Cir. 1992)).
Fourth, plaintiffs contended that the court erred in admitting a PowerPoint from a pre-implant Canadian training program, which they said was inadmissible hearsay. Anyone who has litigated against plaintiffs who try to use a wide range of marketing evidence from irrelevant time frames and places might have trouble swallowing the irony of this argument. Here, the PowerPoint was not offered for the truth of the mattered asserted, but to show the reasonableness of the defendant’s conduct in presenting risk information that plaintiffs claimed the defendants was withholding. Id. Again, the court had previously accommodated plaintiffs on the very evidence they claimed was admitted in error, allowing rebuttal testimony from the implanter that he did not attend this training session.
Fifth, plaintiffs grumbled that they could not use all the emails from defendant’s Chief Medical Officer that they wanted, but did not identify any that were excluded. The court noted a particular email from this individual that was admitted with an instruction that it went to state of mind in terms of the company’s alleged “misleading voluntary communications” but not to the adequacy of “the FDA labels themselves,” distinctions related to the scope of preemption. Id. at *6. In addition to the instruction being appropriate, the court noted that the jury found in plaintiffs’ favor on there being a misleading representation but not reliance and proximate cause. Thus, the unspecified additional emails could not have helped plaintiffs fill the holes in their case.
Sixth, plaintiffs sought to revisit their losing challenge to a defense expert’s testimony on case-specific causation. They offered nothing new suggesting that the testimony should not have been admitted and the alleged weaknesses of his opinions were “addressed thoroughly during cross-examination.” Id. Plaintiffs also tried to claim that the expert’s use of the FDA’s definition for metallosis, the complication plaintiffs attributed to the BHR implant, somehow opened the door to the recall, which was creative if not shameless. Id. at *6 n.8.
Seventh, plaintiffs carped that they could not call an Australian researcher, the one we mentioned before whose post-trial deposition led to more briefing, as a “rebuttal witness.” The offered basis for calling him on rebuttal was that defendant introduced a letter where the researcher refused to allow it to share some of his data with surgeons. This letter was hardly a surprise as the letter was produced in discovery and, we assume, disclosed as an exhibit.
The plaintiffs were well aware of the letter and its significance months before trial, and of its potential ambiguity, yet chose not to engage Professor Graves or reach out to the organization he ran until the point at which calling him would present an unfair and incurable surprise to the defense and considerable disruption to the trial.
Id. at *7.
So, each of the ascribed court errors and allegedly prejudicial developments during trial was rejected in a patient decision. From our read, none of these were particularly close calls, especially given all the advantages plaintiffs received along the way. This raises a few non-rhetorical questions: 1) what would it take for a losing plaintiff in an MDL bellwether trial to not move for new trial? 2) how many rulings in the plaintiff’s favor would it take for the MDL bellwether plaintiff to admit they lost despite their advantages? and 3) when will MDL judges stop favoring plaintiffs and realize than an even playing field is the most likely to produce just results and an efficient course of the litigation?