Sanctions

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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

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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

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The pelvic-mesh plaintiff wrote this in his affidavit:  “I do not know whether mesh was implanted in my body.”  Favor v. W.L. Gore Assocs., 2014 U.S. Dist. LEXIS 17134, *6 (S.D. Oh. Feb. 11, 2014).  We lead with that admission today because we thought it would be a good day to use the old…

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We haven’t blogged much about the Pradaxa MDL pending in the Southern District of Illinois.  A quick search turned up a post on a case that was remanded because a sales representative was found to be properly joined and a post on a not so great discovery ruling.  But, it’s a relatively young MDL with,…

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As lawyers who usually represent defendants in serial product liability litigation, we like rules.  We like deadlines.  We like thorough expert discovery.  While we have been known to seek some discovery extensions and have slogged through cases in jurisdictions where expert discovery just means that the parties exchange reports, we tend to think that our plaintiffs prefer no rules and deadlines for experts—or having rules and deadlines that are not enforced.  In serial litigation, where you can see the same expert show up with an “insert plaintiff name here” approach to reports and testimony, there can be a temptation to abbreviate expert discovery.  After all, sometimes clients prefer to save money and lawyers prefer not to waste time.  Grote v. Wright Med. Group, Inc., 12-CV-2002-LRR, 2013 U.S. Dist. LEXIS 124693 (N.D. Iowa Aug. 30, 2013), seems to us like a case where the plaintiff tried to take advantage of these preferences and got called on it, at least somewhat.  It also may be the first time we have read a decision this long—21 of those Lexis * pages—that only cites a single case.  It definitely taught us that a response to a motion is referred to as a “Resistance” in some courts.

In Grote, the plaintiff sued over an allegedly defective hip prosthesis and served apparently typical reports from frequent flyer liability experts.  Because these experts had been deposed before in other cases and the reports did not disclose anything new—aside from mentions of the plaintiff—the parties agreed not to depose the liability experts.  The defendant even informed the court of the agreement in an uncontested motion to extend the discovery and dispositive motions deadlines.  On the last day of discovery, when it was surely apparent that the defendant manufacturer would soon be filing Daubert motions and a motion for summary judgment, the plaintiff served supplemental reports from two of these experts, Fred Hetzel and Mari Truman.Continue Reading Paying Some Price for Gamesmanship

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…You know somebody’s getting hammered. You just hope it’s the other side.

In Wilson v. Novartis Pharmaceuticals Corp., 2013 WL 593895 (N.D. Tex. Feb. 15, 2013), thankfully it was. The first line was a quote from Marmion: “Oh, what a tangled web we weave when first we practice to deceive!” We first heard that line in middle school, from a teacher who caught a miscreant classmate lying about failure to turn in a homework assignment.

It’s much worse when uttered by a federal judge.

Wilson was an Aredia/Zometa case – and, yes, it was pitched to us by defense counsel (Hollingsworth).   But the opinion is such a stark cautionary tale that we would have blogged about it anyway (assuming we otherwise found out).

Here’s what happened.

The plaintiff died.

That’s of course tragic for all immediately concerned, but it is hardly something to dismiss a case over.   Death is a fact of life, and the court system has evolved standard procedures for dealing with the mid-stream death of a party to litigation.Continue Reading When An Opinion Starts Out This Way….

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We always try to keep things lively around here.  Law can sometimes be drudgery.  But we don’t ever want that type of atmosphere to seep into this blog.  That’s one of the reasons the blog is here: to discuss what we do without the boredoms and formalities that sometimes saturate our every-day practices.  So, here,

…

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Those of us who graduated from the University of Chicago are just a wee bit tired of the “place where fun goes to die” epithet. It’s true that U of C is an intensely intellectual place, and it’s true that Hyde Park is a long way from Chicago’s hot spots, and it’s true that the Cubs will continue to disappoint, and it’s true that when the Winter wind (“the Hawk”) blows in off Lake Michigan one prays for death, but … what was our point, anyway? Right – intellectual combat can be a fascinating spectator sport. It can be a moveable feast. It can even be, yes, fun.
In mid-February, the Law School put on a “Manhood in Law and Literature” conference. Here is part of what the conference announcement promised: “The conference will include two dramatic performances by members of the University of Chicago law School. The first scene, from the Caine Mutiny Court Martial by Herman Wouk, will feature Judge Richard Posner as Lt. Commander Queeg … and Judge Diane Wood as Captain Blakely. The second scene, from The Little Foxes by Lillian Hellman, will feature Professor Martha Nussbaum as Regina Hubbard Giddens and Professor Douglas Baird as her husband Horace. A musical interlude will be provided by Jajah Wu, Gary de Turck, and Martha Nussbaum.”
Sounds like fun, right? It gets better. An article describing the conference reveals that Professor Nussbaum sang “Can’t Help Lovin’ Dat Man” from Show Boat. Mind you, this is the same Martha Nussbaum who is one of the country’s most daring and creative philosophers, who is a hero to the Drug and Device Law Daughter because of her position on animal rights, and whose analysis of Plato’s Symposium has been stuck to our brain for over 25 years. We are genuinely sorry we missed this performance. Author Joyce Carol Oates also spoke (but did not sing) at the conference. She talked about Hemingway and boxing. Oates’s writings on boxing have given it an unexpected intellectual heft.Continue Reading There’ll Always Be Posner: Hemingway, Boxing, and Sanctions

The title pretty much says it all, but it is rare that you have a state supreme court weighing in on whether revocation of a pro hac is an appropriate sanction for plaintiffs’ lawyer shenanigans, so we call it to your attention. Recently, a North Carolina judge revoked the pro hac vice status of two (non-resident) plaintiffs’ lawyers in a case involving powdered Similac. See Sisk v. Transylvania Comm. Hosp., __ S.E.2d __, 2010 WL 2403438 (N.C. June 17, 2010). The facts alleged in the complaint are tragic – baby takes powdered Similac instead of sterile liquid Similac, baby is a neonate with a compromised immune system, baby develops meningitis. The plaintiffs sued the hospital – and we’ll refrain from making tired Transylvania jokes – and Abbott, the maker of Similac.
But the facts of the case and the legal claims asserted aren’t what caught our attention. Nope, it’s the way the trial court slammed the two non-Tarheel plaintiffs’ lawyers when the court learned that those lawyers had been in contact with Abbott’s consulting expert. It turns out that these plaintiffs (and Abbott) were no strangers to Similac litigation. In fact, these same lawyers had been involved in Similac litigation in Kentucky, in a case called Hill. After the Hill case settled, but before an order of dismissal was entered, the plaintiffs’ lawyers contacted and retained Abbott’s consulting expert with respect to another Similac case, called Froman. At the time of the contact, Abbott was not yet a party in the Froman case, but it was added later, leading to the disqualification of Abbott’s consulting expert in Froman. Abbott was understandably upset, and moved to disqualify plaintiffs’ counsel for their tactics. The Kentucky court refused to disqualify or sanction the lawyers, finding that they did not knowingly violate the Kentucky Rules of Professional Conduct.Continue Reading Plaintiffs’ Counsel Kiss Their Pro Hacs Goodbye After Messing With Defense Expert

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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.
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