The first thing you learn as an appellate clerk is the importance of the standard of review.  If the review is de novo – purely legal issues – your judge will not defer at all to what happened below.  It’s a whole new (hence, de novo) ballgame. If the review is for abuse of discretion – for example, whether certain evidence should have been excluded per a Rule 403 analysis – there will be plenty of deference.  If the review is for clear error – usually factual findings – there will be still more deference.  For that last category, reversals  are as scarce as hen’s teeth. 

Another thing a clerk will pick up on quickly is that there are some areas of the law that your judge cares a lot more about than others, and some cases will be scrutinized with special rigor, and maybe even skepticism.  Most judges pay a lot of attention to constitutional and criminal issues.  But some judges get pretty fired up about other areas.  If you have a SCOTUS case involving Native American law, Justice Gorsuch has to be your focal point.  (The same was true with Judge Canby on the Ninth Circuit.)  

The bottom line is that an adverse commercial or (sigh) product liability case can be difficult to reverse on appeal, and that is particularly true if you are grousing about factual and evidentiary issues.  We mourned this reality after reading Bayless v. Coloplast Corp., 2023 WL 1466607 (11th Cir. Feb. 2, 2023), an opinion for which the best aspect is that it is unpublished.  The case involved a plaintiff who sued two pelvic mesh manufacturers for personal injuries, including vaginal erosion. She prevailed at trial against one of the manufacturers and lost to the other. The losing manufacturer appealed and lost again.  It probably should have won, but it was a tough appeal.  The standard of review and the nature of the case forced the appellant to run uphill.

When the opinion starts off telling us that the plaintiff “is a mom,” it is not likely to turn out well for the defendant.  Apparently the mesh surgery was “robot assisted,” which is not typical for these cases, but in other respects this pelvic mesh case was fairly run of the mill.  Along with the implantation of the mesh, the plaintiff had a hysterectomy.  That procedure can itself cause at least some of the selfsame injuries that the plaintiff attributed to the mesh.  But the fact remains that pelvic mesh plaintiffs are sympathetic, the injuries are bad, the plaintiff experts are wind-up witnesses who can roll out of bed and deliver a closing argument in the guise of testimony, and there are some unfortunate regulatory facts, such as FDA insistence on additional studies, product withdrawals, and reclassifications.  These cases are not easy for defendants.

The manufacturer in Bayless argued that the design defect verdict was against the weight of the evidence, which the defendant argued was bereft of any showing that the pelvic mesh could cause the alleged injuries (that is, no general causation) or that the risks of the pelvic mesh device outweighed its benefits. The Eleventh Circuit reminds us that it will draw all inferences in favor of the party that won below, will not make credibility determinations, and will not overturn a jury’s verdict “unless no rational trier of fact could have reached the same conclusion based upon the evidence in the record.” 

The defendant argued that under Florida law (as with every other jurisdiction we know of) a plaintiff must prove both general causation and specific causation.  The Bayless court finessed this issue, and held that the plaintiff had presented sufficient evidence of both species of causation.  Together, two “usual suspect” plaintiff experts trotted before the jury an all-polypropylene-is-bad/oxidative-degradation-theory, which the appellate court held was sufficient to establish general causation.  Reading between the lines, it looks to us that the court permitted the plaintiff side experts (one for materials science, the other for medical causation) to testify beyond their proper scope.   Without admitting it, the trial court had allowed the non-physician materials expert to testify about general medical causation. The Bayless court held that since all polypropylene is bad (a truly absurd outcome — good luck using medical implants without polypropylene) specific testimony about the pelvic mesh device was unnecessary.  According to the appellate court, it was perfectly fine for the jury to take the specific causation testimony, combine it with the non-medical oxidative degradation testimony, and then “infer” general causation.  

The defendant (correctly) argued that the plaintiff’s theory was that “mesh automatically means defect.”  The Bayless court deemed that an overstatement, but we do not see how.  The Bayless court considered the plaintiff’s defect case as being no different from that okayed by the Eleventh Circuit in Eghnayem (an execrable case that we discussed here).  Mesh degrades, it stiffens, and it causes pain.  Good enough. There were portions of the Bayless opinion that relied upon procedural waivers (such as “abandonment” of challenges to the admissibility of some of the plaintiff expert opinions) though it is hard to tell how legitimate that was.  From our reading of the case, plus some other things we know about this sort of litigation and the pelvic mesh plaintiff lawyers, we get the impression that the plaintiff lawyers lost some rulings, were told they could not get certain evidence or opinions in, and proceeded to smuggle those items in anyway.  We do not mean to disillusion any young, idealist lawyers out there, but get ready for this fact of life: sometimes your opponent will either defy or circumvent a court ruling, and your hard-fought victory will turn into ashes pouring through your fingers.  

What to do about that? First, warn the court if you think there’s a decent chance the plaintiff lawyers will sneak things in that should be out of bounds.  Maybe the plaintiff lawyers have a history of doing exactly that. They probably do. Sometimes judges get irked when you raise issues in advance, but sometimes they are happy to growl at the other side.  (Maybe the judge will growl at both sides.  That’s fine with us.) When we told a judge that in a prior mesh trial the plaintiff lawyers kept bringing up failure to warn even though they had dropped that claim, the judge admonished the plaintiff lawyers.  Afterward, during a break, a plaintiff lawyer came up to us and scolded us for “working the ref.”  We pleaded guilty.  Second, keep objecting.  Do not think that a ruling on a motion in limine is always enough to preserve your appellate record.  Do not give the appellate court any excuse to dodge an issue by pointing to an alleged waiver.

Bayless would be almost as bad as Eghnayem, except that it is unpublished. The Eleventh Circuit usually comes out with pretty good decisions – but not in cases involving pelvic mesh.