In the litigation strategy class we teach at Penn Law, we always set aside a few minutes to go over the Aristotelian rhetoric trilogy of logos, pathos. and ethos.  As you probably already know, logos is the persuasive value of an argument’s logic, pathos is the power of sympathy, and ethos refers to one’s character in terms of credibility from authority and overall excellence.  We think (hope?) that this blog’s breakdowns of case outcomes are heavy on logos. Pathos is more typically an issue of jury appeal. But what of ethos?  When does that come into play? 

To be sure, we have seen lawyers squander credibility in front of a judge or jury.  Bad ethos. After enough instances of dishonesty or stupidity, an attorney’s arguments go unheard or unbelieved.  And we’ve seen litigants who manage to give jurors the creeps. But we have not seen many parties whose character and conduct drove a judge to decide dispositive motions against them. 

Today’s case, Hunt v. Medtronic USA, Inc., 2025 U.S. Dist. LEXIS 17966 (W.D.Wash. Jan. 31, 2025), might offer an example where a party’s conduct was sufficiently repellent so as to push the court toward ruling against that party. The plaintiff in Hunt complained of pain from an implanted spinal cord stimulator (SCS). But the plaintiff seemed to be a constant pain in another part of the anatomy. In the end, it was the plaintiff who suffered the pain of defeat. 

The plaintiff alleged that a medical device company had induced him into choosing a particular SCS device because the sales representative who demonstrated the product to the plaintiff used a tablet controller that included 28 settings. All those settings impressed the plaintiff. He wanted them. He claimed that the sales representative promised the plaintiff all 28 settings. But the SCS implanted in the plaintiff came with only three settings.  Disappointing ensued.  And then things got worse. The plaintiff claimed that the SCS performed unsatisfactorily and ended up delivering more pain than relief.  He filed a complaint containing causes of action for breach of contract, violation of Washington’s consumer protection statute, and negligence. The breach of contract action disappeared early on, and what was before the court was the defendant’s motion for summary judgment on the consumer protection and negligence counts. 

What was it about this plaintiff that made this case so … dispensable?  Right from the start, the plaintiff spewed out complaints in all directions. According to the plaintiff, his doctors and the device company lied to him and refused to help him. The plaintiff ended his relationship with his doctors because they wanted him to “taper off pain medications or find a new pain management doctor.”  

Hmmm.  What does that tell you?

The plaintiff later got into a car accident and claimed that his SCS gave him an “jolt.”  He then got the SCS reprogrammed but it was still no good.  He “requested various accommodations” including “access to the tablet, daily calibrations, shutting down the device, and removal of the device.”  The plaintiff claimed that various doctors and company representatives failed him.  Around the time of an ER visit, the plaintiff “‘made an incision to cut out the SCS himself, then after the ER visit, he hit the battery pack with a mallet until it stopped working.”  

That is taking self-help a bit far, isn’t it?

At this point, our thoughts drifted away from Aristotle and toward the Justified television show.  For those of you who never saw the show (and if you are in that category, you should remedy that situation sooner rather than later), the protagonist is U.S. Marshall Raylan Givens.  Givens is a good shot, and he gets many chances to prove that because he is quick to throw bullets.  That is, he shoots a lot of people.  But these shootings are invariably – wait for it – justified. In one episode, Givens says something like this: If in the course of your day you run into an a-hole, well, you had the misfortune of running into an a-hole.  But if all day long you find yourself constantly running into a-holes, guess what?  Maybe you’re the a-hole.

The Hunt plaintiff’s unique and persistent truculence was a big reason why his claims were dismissed. The court dismissed both the consumer protection and negligent misrepresentation claims.  The court dismissed the consumer fraud claim because one of the statutory requirements was that the alleged deception impacted the public. But Hunt was purely a private personal injury case without the required public impact element.  The case involved only peculiar, plaintiff-specific facts.  The plaintiff came up with no evidence “that any person other than himself suffered the same deceit” or that the device company was “likely to make the same misrepresentations to someone else.”  The plaintiff asserted that the company’s representatives were trained to make the alleged misrepresentations and regularly did so, but he had no evidence in support. 

On the alleged deception regarding the number of controller settings, the defendant provided unrebutted evidence that it had “never allowed patients to own or use the tablet alone, and that FDA restrictions would not permit it to do so.”  The court shrewdly observed that if the device company in fact regularly promised patients they would get the 28 level tablet and then reneged, the plaintiff in Hunt “would likely have company as a plaintiff.”  The court dismissed the consumer protection claim with prejudice. 

The negligence claim travelled under two theories.  The first was that the defendant’s agents misled the plaintiff about the device controller’s features. The second theory was that the company breached its “duty to service the malfunctioning SCS, ultimately prompting him to cut the device out of his body in desperation to stop the unbearable unprompted shocks.”  

The Hunt court decided that the negligence claim lacked the necessary expert testimony on scope of duty, standard of care, and causation. “Because expert testimony is necessary to explain how the SCS works, expert testimony is necessary to sustain a claim for negligent marketing and certainly for negligent servicing of the SCS.” The plaintiff had no expert testimony to support his claim that the company had improperly marketed and inadequately serviced the device.  Moreover, whether the device malfunctioned so as to injure the plaintiff likewise required expert testimony. On this point. The plaintiff did not merely lack expert testimony; his experts actually undercut his position by blaming the car crash for causing the leads in the SCS to migrate and thereby causing the plaintiff’s pain. 

The Hunt complaint was replete with – well – complaints. But the plaintiff had precious little evidence to support such complaints.  The court’s dismissal of the complaint was hardly shocking.