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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:

  • In Aoki, there were 11 months between case selection and trial (2/27/2015-1/11/2016); here, by contrast, there are just 3 ½ months between case selection and trial (6/10/2016-9/26/2016).
  • In Aoki, there were more than seven months between case selection and the due dates for defendants’ expert reports (2/27/2015-10/9/2015); here, by contrast, there are just 2 ½ months between case selection and the due date for defendants’ expert reports (6/10/2016-8/26/2016).
  • The Aoki schedule afforded defendants eight weeks to respond to plaintiffs’ expert reports (8/14/2015-10/9/2015); here, by contrast, defendants are being given just two weeks to analyze and respond to plaintiffs’ expert reports.

(Defense Br. at 9.)Continue Reading The Pinnacle Hip Implant MDL Continues—with a Motion for a Continuance

This comes from the non-Reed Smith side of the blog.

Just over two weeks ago, the defendants in the Pinnacle Hip Implant MDL petitioned the Fifth Circuit for a writ of mandamus (see here) directing the trial court to enter judgment on a verdict rendered by a jury last March in the second bellwether trial, a verdict awarding a half-billion dollars to five plaintiffs.  Defendants needed a judgment to clear the way for an appeal of the trial court’s controversial evidentiary and procedural rulings in that trial, rulings about which we’ve blogged multiple times (here and here).  Defendants also asked the Fifth Circuit to direct the trial court to stay further bellwether trials (the third is scheduled for September) pending the Fifth Circuit’s review of those ruling so that, if they are overturned, the same rulings would not infect subsequent bellwether trials.  This petition was undoubtedly a Hail Mary. Writs of mandamus are rare.

But the defendants may have already won. Last week, the trial court entered judgment (and reduced the jury’s award as it was required to do by statute), and the defendants now can file a proper appeal to the Fifth Circuit.  To coopt Hemingway, the court entered that judgment in two ways: “Gradually, and then suddenly.” So, why suddenly?  Did the defendants’ petition prompt it?  Who knows?  But keep in mind that the trial court still hasn’t entered judgment on the first bellwether trial, even though the jury in that trial rendered its verdict well over a year ago.Continue Reading The Pinnacle Hip Implant MDL Court Finally Enters Judgment

This post comes from the non-Reed Smith side of the blog.

We suggested in our most recent post on the Pinnacle Hip Implant MDL that, the sooner the Fifth Circuit weighs in on the evidentiary and procedural concerns being raised by the defense, the better. The defense is trying for sooner.

On Thursday, the defense filed in the Fifth Circuit a Petition for a Writ of Mandamus to the MDL court. This isn’t a petition asking the Fifth Circuit to review the evidentiary and procedural rulings that the defense has been raising since the second bellwether trial was scheduled. It couldn’t do that. But the petition does ask the Fifth Circuit to order the MDL court to do the things that are necessary to allow the Fifth Circuit to conduct that review. And it asks that, in the meantime, the Fifth Circuit stop the bellwether process:

Petitioners seek a writ from this Court directing the district court to: (1) vacate its Order on Bellwether Trials, dated June 10, 2016, which scheduled a trial for September 6, 2016 (Exhibit A); (2) rule promptly on petitioners’ pending post-trial motions in the last bellwether trial; and (3) enter judgment in those cases so that an appeal may follow, see Fed. R. Civ. P. 58(b).

Petition at 1.

It seems that a significant amount of paperwork has been piling up on the MDL court’s desk. The MDL court hasn’t entered final judgment on the first bellwether trial, even though that verdict will soon be two years old. The MDL court has also not ruled on the post-trial motions from, or entered judgment on, the second bellwether trial, the one that raised so many procedural and evidentiary concerns and resulted in a half-billion dollar verdict.Continue Reading Hello Fifth Circuit: The Pinnacle Hip Implant MDL Finally Introduces Itself to the Appellate Court

This post does not come from the Reed Smith side of the blog.

After two grueling months, the second bellwether trial in the Pinnacle Hip Implant MDL has gone to the jury.  The last time that happened—in 2014—the jury came back with a defense verdict.  It was a resounding and, to some, upset victory for the defense in a plaintiff-selected case in a Texas court against Texas plaintiffs’ lawyers.

But that was then.Continue Reading Trouble in Texas?: The Latest Pinnacle Hip Implant Trial Goes to the Jury

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

The following is a guest post from Reed Smith’s Rachel Weil. As always, she takes full responsibility for the content of the post.
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Dipping our toes into the blogosphere is intimidating, given the company in which we daily find ourselves. We can claim neither Bexis’s pinpoint command of all recorded jurisprudence nor McConnell’s encyclopedic recall of…

In prescription medical product liability litigation, both sides invest a lot in their expert witnesses.  In addition to spending time, money, and effort, we work out our legal theories with our experts, and share with them our views of the facts, both good facts and bad facts.  Thus, when the other side inveigles one of ours to switch sides – usually with the promise of a lot more money for a lot more testimony – the result can be a lot of collateral litigation.

We’ve blogged a couple of times before about turncoat experts, so the recent decision in Hawkins v. DePuy Orthopaedics, Inc., 2023 WL 7292164 (D.D.C. Nov. 6, 2023), attracted our interest.  Then we discovered that Hawkins was only the most recent of several decisions barring testimony by the same turncoat expert – one Stephen Li – due to his prior employment with the same defendant concerning product liability litigation involving the same product (and other similar products, as well).  See also King v. DePuy Orthopaedics, Inc., 2023 WL 5624710 (D. Ariz. Aug. 31, 2023); Cannon v. DePuy Orthopaedics, Inc., 2023 WL 7477903 (N.D. Ga. Aug. 16, 2023); McCoy v. DePuy Orthopaedics, Inc., 2023 WL 4551081 (S.D. Cal. July 14, 2023); but see Winkelmeyer v. DePuy Orthopaedics, Inc., 2023 WL 2974480 (W.D. Mo. Apr. 17, 2023).  We note that a couple of other decisions (both precluding Dr. Li from testifying) apparently exist, but because they are either oral or under seal, we have not seen and do not discuss them.  The plaintiffs in those cases were named Sheehy and England.Continue Reading Wrecked on a Li Shore – The Saga of a Turncoat Expert

Plaintiffs love sales representatives.  They love to use them to try to keep cases in state court—naming them as non-diverse defendants.  They love to try to use them to get around preemption—claiming a direct duty from the rep to the plaintiff.  And they certainly love making sales representative statements and conduct a focal point of…

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