A lot of time is spent in litigation on discovery. As tedious and non-exciting as it often is, cases can be won or lost depending on what happens during discovery. So, it’s not to be taken lightly. When we find ourselves arguing to the court about discovery, however, it is often without being able to
As we publish this post, lawyers in the Pinnacle Hip Implant MDL are gathering in the Bob Casey Courthouse in Houston or in coffee shops, breakfast cafés or law offices nearby awaiting the argument to come. At 10:00 a.m., the arguing starts. The Fifth Circuit will officially begin to consider whether to issue a
Posts on personal jurisdiction, or the lack of it, have been all over this blog ever since the Supreme Court decided Bristol-Myers Squibb Co. v. Superior Court. Something similar happened three years ago after the Supreme Court decided Daimler AG v. Bauman. Together, these two decisions establish that federal courts are not empowered
This post comes from the Cozen O’Connor side of the blog.
Plaintiffs and defendants have now completed briefing before the Fifth Circuit on defendants’ appeal of the $498 million verdict in the second bellwether trial of the Pinnacle hip implant MDL. Obviously, there is a lot riding on this appeal. In March, we laid out
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.
Continue Reading Briefing Underway in Appeal of Half-Billion-Dollar Verdict in Pinnacle MDL
Well that was something. When we left you last Thursday, the jury for the third bellwether trial in the Pinnacle Hip Implant MDL had just started its deliberations, and we once again expressed concern over the trial’s evidentiary and procedural rulings and the effect they might have on the verdict. Our concern-level was high. Last time, amidst similar concerns, the jury came back with a half-billion dollar verdict.
Apparently that was chump change. Everything is bigger in Texas. And this time it was over one billion. Let that sink in. Over one billion. That’s a massive amount of money. Has anyone even ever won that in a lottery? It’s 1,000 winners of Who Wants to Be A Millionaire. And then you have to add about 40 more winners because the actual verdict was about $1.04 billion.Continue Reading The One-Billion-Dollar Verdict
With one sentence, a circuit judge signaled yesterday that the Fifth Circuit is watching with acute interest what’s going on in the Pinnacle Hip Implant MDL in Dallas:
Although the district court misapplied Rules 43(a) and 45(c), I concur in the denial of the petition for a writ of mandamus.
Oh my. While that may not be a shot across the bow of the MDL bellwether process, it’s an attention-grabber.
Technically, this was a loss for the defendants. They asked the Fifth Circuit to direct the MDL court to vacate an order authorizing plaintiffs to subpoena company witnesses no matter where they are in the country to testify at a bellwether trial via satellite or other contemporaneous transmission. And the Fifth Circuit denied the petition. But petitions for writs of mandamus are always lost. The possibility of victory is so slim that the legal background sections of most petitions actually find it useful to argue that it is untrue that writs of mandamus are “never” issued. It’s only “hardly ever.”Continue Reading The Defense’s Mandamus Petition in the Pinnacle Hip Implant MDL Yields an Unusual Victory
Here we go. Again. The third bellwether trial in the Pinnacle Hip Implant MDL starts on October 3 (less than two weeks away), and the parties began picking a jury two days ago. The lawyers are, no doubt, hunkered down in their hotels and war rooms preparing for a trial that could last through the start of the holidays. And much of the mass tort world will be watching. That’s because the jury in the last bellwether trial came back with an incredible half-billion-dollar verdict at the end of a multi-plaintiff trial in which the court issued a long series of controversial evidentiary and procedural rulings.
And now, even before opening statements, there are ominous signs for the defense at this third bellwether trial. Three days ago, the court issued an order sua sponte—that is, with no briefing—confirming that it is consolidating six different plaintiffs at this one trial. That’s a lot of plaintiffs and no doubt a lot of differences. It’s hard to imagine jurors effectively keeping straight the case-specific evidence presented by each of these half-dozen plaintiffs, all while trying to sift through and understand mountains of complex scientific and medical information and avoid allowing their feelings as to any one plaintiff to affect their judgment as to the others. Without even considering the facts of the cases, a six-plaintiff trial is not good for defendants. There’s a reason that plaintiffs’ lawyers prefer multi-plaintiff trials and that defendants do not.Continue Reading Here Comes the Next Bellwether Trial in the Pinnacle Hip Implant MDL
This post comes from the non-Reed Smith side of the blog.
We’ve been posting for a few months about the procedural and evidentiary controversies that have arisen in the Pinnacle Hip Implant MDL bellwether process. The second bellwether trial involved significant evidentiary and procedural rulings that raised eyebrows across the defense bar (discussed here and here). After that trial unsurprisingly produced a ½ billion dollar jury verdict, the defense asked the MDL Court to stay further bellwether trials so that the Fifth Circuit could review those rulings. No luck. Instead, the MDL Court ordered that the next bellwether trial should happen—and quickly (discussed here). After all that, and with the third bellwether trial approaching fast, the defense must feel like the coyote lying flat on the ground staring up at the bottom of a plummeting anvil coming at him a second time.
Undaunted, however, the defense has now filed a motion to continue the third bellwether trial, a motion that raises serious concerns about the time allotted to “work-up” the plaintiffs’ cases that will be involved in the trial. The defense argues that the allotted time is simply too short, not providing enough time for the complex medical issues underlying each plaintiff’s case to be developed and understood so that a trial can produce the type of verdicts that can advance the MDL process. To illustrate this, the defense compared the discovery and pre-trial periods that led up to the second bellwether trial (Aoki) to those leading up to this trial:
(Defense Br. at 9.)Continue Reading The Pinnacle Hip Implant MDL Continues—with a Motion for a Continuance