Sanctions

Subscribe to Sanctions
Photo of Bexis

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

Photo of Bexis

We always thought that the decade-old Nargol v. DePuy False Claims Act litigation was a particularly abusive misapplication of the FCA for legal reasons.  As discussed here, the primary allegations asserted the same sort of “fraud on the FDA” claim that, when brought as a common-law tort claim, were held preempted in Buckman Co. v. Plaintiffs Legal Committee, 531 U.S. 341 (2001) – that the defendant purportedly misled the FDA to clear a §510(k) medical device, and that, as a result, every use of the device was ipso facto a false claim.  No other causation needed.  As the earlier post discussed, the First Circuit rightly put an end to that attack on FDA authority in United States ex rel. Nargol v. DePuy Orthopaedics, Inc., 865 F.3d 29 (1st Cir. 2017).

Then it turned out that a lot more was wrong with Nargol than just a bogus legal theory.  The relators were p-side “experts,” Antoni Nargol and David Langton, who had access to documents from a couple of MDLs that targeted the defendant’s hip implant products.  Critically:

Protective orders regarding confidential [defendant’s] product design information were issued in both of the multidistrict litigation cases (individually, the “ASR protective order” and the “Pinnacle protective order”; collectively, the “Protective Orders”).

United States ex rel. Nargol v. DePuy Orthopaedics, Inc., ___ F.4th ___, 2023 WL 3746534, at *1 (1st Cir. May 18, 2023).Continue Reading Dismissal of Experts-Turned-Plaintiffs’ FCA Case as Sanction Affirmed

Photo of Stephen McConnell


Famous (and infamous) Illinois trial lawyer Clarence Darrow once said that he never wished a man dead, but had occasionally read some obituaries with great satisfaction.  (That same quote is sometimes incorrectly attributed to Mark Twain.) 


We’re no Darrow. We’ve never saved a client from capital punishment, or discredited a former presidential candidate in a…

Photo of Bexis

The hip implant litigation, Rouviere v. DePuy, has already given us one of the classic opinions on the COVID-19 “new normal” in litigation practices.  See Rouviere v. DePuy Orthopaedics, Inc., ___ F. Supp.3d ___, 2020 WL 3967665 (S.D.N.Y. July 11, 2020) (blogged about here).  That decision was prompted largely by the plaintiff’s…

Photo of Bexis

On many occasions, we’ve remarked that in modern prescription medical product liability litigation MDLs, the main objective of both plaintiffs and their counsel is to file as many lawsuits as possible, and then to do the bare minimum possible to avoid dismissal.  The idea is to run up the numbers, make the defendants spend huge…

Photo of Bexis

Any defendant that has litigated – and lost − remand motions has encountered plaintiffs with very flexible facts, particular in opposition to fraudulent joinder arguments.  By that we mean:  dates that change after remand, non-diverse defendants that suddenly had nothing to do with anything, damages shrinking below the jurisdictional minimum, product exposures that disappear, “yes” that becomes “no” (and vice versa) in plaintiff testimony.  That kind of thing.

But there’s nothing anybody can do about it, right?  After all, a federal statute, 28 U.S.C. §1447(d), bars federal review of remand orders, so no matter how outrageous a plaintiff’s fraud on the court during the remand process is, they skate, and the defendants are stuck in state court, right?

Wrong.  At least not now.  At least in the Fourth Circuit.  See Barlow v. Colgate Palmolive Co., ___ F.3d ___, 2014 WL 6661086 (4th Cir. Nov. 25, 2014).

In the first precedential decision to address this issue, last week the en banc Fourth Circuit held in Barlow that, when a plaintiff’s remand-related misrepresentations are bad enough, a remand order can be vacated under Fed. R. Civ. P. 60(b)(3), with the result being that the case retroactively returns to federal court.  It’s a matter of first impression (prior adverse appellate decisions were all non-precedential), so all defendants should study Barlow closely.Continue Reading Fraud on a Federal Court Allows Vacation of Remand Orders

Photo of Bexis

The Eleventh Circuit’s recent decision in In re Engle Cases, ___ F.3d ___, 2014 WL 4435893 (11th Cir. Sept 10, 2014), although involving cigarettes rather than prescription medical products, rips the scab off shoddy practices that plague many mass torts and are inherent in the other side’s solicitation-based approach to such litigation.  Basically, the…

Photo of Michelle Yeary

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

Plaintiffs seeking sanctions in the Actos litigation is nothing new.  We’ve covered the absurd federal MDL spoliation ruling here and the saner result from the Illinois state court proceeding here.   Apparently, the MDL plaintiffs weren’t satisfied with their win on spoliation or with their equally ridiculous trial verdict, so this time they went after Eli Lilly asking the court to use its inherent power to strike Lilly’s answer to the complaint and to enter default judgment in favor of plaintiffs.  In re Actos Prods. Liab. Litig., 2014 U.S. Dist. LEXIS 81305 at *19 (W.D. La. Jun. 11, 2014).  Fortunately, the court denied the motion in its entirety – in large part because plaintiff overreached on the sanctions it wanted imposed and under-reached on the legal theories it used to support its arguments.  But, at the core of the motion was something no defendant or defense counsel wants to have to face – allegations of perjury by a former employee.

We don’t know exactly how Lilly found itself in the situation we are about to describe.  But, the words of every trial advocacy professor we’ve ever had sprang immediately to mind:  Don’t lose because you failed to thoroughly prepare your witnesses.  You never want to be surprised at trial by what your witness is going to say.  And while that gets trickier with a former employee, if you are identifying them on your witness list as someone who will testify on your behalf, you better have considered things like:  was the witness prepared by counsel, does the witness make a good appearance, has the witness provided testimony elsewhere that is concerning or problematic.  And, if the reality is that this is “the” witness on a central issue regardless of how some of these questions are answered – then you better prepare, prepare, prepare and prepare again.Continue Reading Actos — Another Motion for Sanctions

Photo of Bexis

The Actos litigation has a way of being topsy-turvy these days.  We discussed not too long ago the epic ediscovery fail in that litigation, whereby a defendant, because of overbroad litigation holds that it allowed to persist even after the litigation that had generated them had long since disappeared, was held to have spoliated evidence at a time when there was no Actos litigation.  Appallingly, plaintiffs were allowed to “presume” prejudice from the loss of the information – when it’s not at all clear that the missing information wasn’t, in the end, discovered either in other employee files or from third-party discovery.  In re Actos (Pioglitazone) Products Liability Litigation, 2014 WL 355995, at *26-28 (W.D. La. Jan. 30, 2014).  The missing Actos files were destroyed when people left the defendant’s employ, rather than in any extraordinary attempt to sanitize files.  Id. at *26.

The effects of this unusual ruling evidently continued at the first Actos trial.  According to a post last week on the E-Discovery Law Alert  (a blog specializing in ediscovery):

[The judge instructed the jury after closing arguments Monday that they could take [defendant’s] evidence spoliation into account.  Additionally, throughout the trial, the jurors were exposed to voluminous evidence detailing [defendant’s] conduct in destroying the relevant evidence.

As a result we ended up with a $9 billion punitive damages verdict where the plaintiff received all of $1.5 million in compensatory damages.  That’s a ratio of six thousand to one.  The Supreme Court and most state courts consider any ratio above 10:1 presumptively unconstitutional.  A ratio this large, we think, is not only unconstitutional, but is presumptively the product of what lawyers call “passion and prejudice” on the part of the jury.  A verdict based on passion and prejudice is typically thrown out in its entirety.  This one certainly should be.Continue Reading Actos – Finally Some Sanctions-Related Sanity

Drug & Device Resources

Bexis’ Book

FDA-regulated products now account for an estimated one-fifth of overall economic activity in the U.S. They have also been the focus of a litigation explosion. This timely guide covers all aspects of litigation involving drugs, medical devices, vaccines and other FDA-regulated prescription products.
Learn More About This Book