In a mass tort MDL trial, what evidence can/should jurors here regarding 1) other MDL cases involving the same product and 2) plaintiff attorney advertising for similar plaintiffs?  In a case now in trial, a federal judge has held that some evidence will be allowed on both topics. The issues arise in the first bellweather MDL DePuy metal hip trial. The trial also is notable because Mark Lanier is one of the plaintiff’s counsel.

News of the trial rulings is reported in a Law360 article from September 29, 2014. According to the article, the judge concluded that defense arguments about “outlier cases” and plaintiff lawyers opened the door to allowing  the jurors to hear that there another 6,500  cases pending in the MDL. According to the article:

“In the fifth week of an eight-week trial, U.S. District Judge Ed Kinkeade said from the bench that DePuy had opened the door to the mention of the other pending cases that target its Pinnacle hip implant by calling plaintiff Kathy Herlihy-Paoli’s case an outlier and suggesting the doctors who treated her were also outliers. He said he had warned the defense about that line of argument after its opening statement but that DePuy continued to use it, meaning the plaintiff needs to be able to defend that characterization.” ….

Defense attorney Michael Powell of Locke Lord LLP argued the court would be heading down a “pernicious” road if it allowed the mention of the other MDL cases by taking the jury’s focus away from Herlihy-Paoli’s allegations. Powell said 170,000 implants had been performed over 13 years, with only about 3,000 of the 6,500 plaintiffs needing revision surgery, meaning their untested cases don’t have substantial similarity to Herlihy-Paoli’s claims and that mentioning them would be unduly prejudicial.

On plaintiff lawyer advertising, the article reports:

“He [Mr. Powell] also asked the judge to lift an order that barred DePuy from mentioning advertising campaigns law firms had used to solicit hip implant clients, calling the MDL a “plaintiffs-lawyer-generated situation” and the result of $50 million in advertising for clients. He said product liability plaintiffs can’t “create their own evidence” by advertising for more cases without substantial similarity to the claims being tried and argued if the jury hears about the many other untested claims in the MDL, DePuy should be able to tell them about the advertising campaigns. Judge Kinkeade said he was likely to allow some testimony about the lawyer advertising.”

The lawyers for the case, as per LAW360, are:

“Herlihy-Paoli is represented by Mark Lanier of the Lanier Law Firm, Larry Boyd and Wayne Fisher of Fisher Boyd Johnson & Huguenard LLP and David Paoli of Paoli Kutzman PC. The plaintiffs’ steering committee is represented by Richard J. Arsenault of Neblett Beard & Arsenault and Jayne Conroy of Simmons Hanly Conroy LLC.

DePuy is represented by Michael Powell and Seth Roberts of Locke Lord LLP; Stephen Harburg, John Beisner and Jessica D. Miller of Skadden Arps Slate Meagher & Flom LLP; Richard Sarver of Barrasso Usdin Kupperman Freeman & Sarver LLC; Alexander Calfo of Barnes & Thornburg LLP; and others.

The case is Herlihy-Paoli v. DePuy Orthopaedics Inc. et al., case number 3:12-cv-04975, in the U.S. District Court for the Northern District of Texas.”