How to Deal with Plaintiffs Favorites:

Transcription

1 How to Deal with Plaintiffs Favorites: Past Transgressions, Accusations, and Other Plays from Plaintiffs Playbook Paul Schmidt Covington & Burling LLP One CityCenter 850 Tenth Street, NW Washington, DC Rebecca Weinstein Bacon Bartlit Beck LLP 54 W. Hubbard St., Suite 300 Chicago, IL

2 Paul Schmidt is a trial lawyer who has led the defense of some of the most complex litigations nationwide. His recent trial work includes securing three trial wins for Lilly; securing favorable outcomes as trial counsel for Hoffmann-La Roche Inc. in several extended jury trials; serving as trial counsel for the National Football League in trials involving complex labor and commercial disputes as well as television carriage disputes; and representing Genentech in a first-of-its-kind FDA hearing over the withdrawal of accelerated approval for a medication. He also served as the lead counsel for Boehringer Ingelheim in the Pradaxa multidistrict litigation. Mr. Schmidt has also successfully argued appeals before state and federal courts around the country. Rebecca Weinstein Bacon is a trial lawyer in Bartlit Beck s Chicago office. She has a broad practice geographically and substantively that includes pharmaceutical product liability, antitrust, consumer class actions, and commercial disputes. Recently she served as co-lead trial counsel for a landmark pattern-or-practice age discrimination claim brought by EEOC against a national restaurant chain. After a three-week jury trial in January 2017, the case ended in a mistrial because jury was deadlocked after deliberating for one week. In addition to trying cases, Rebecca is an appellate advocate. She represented Bayer in the WeightSmart litigation, where she argued the Carrera case before the Third Circuit, establishing key law for corporate defendants related to ascertainability. Her recent representations include trying one of the only consumer class action cases to go to trial, which resulted in a defense verdict for Whirlpool. She has served as trial counsel on several mass torts including Baycol, Trasylol, and Yaz. She teaches and speaks on trial skills and high tech trial techniques.

3 How to Deal with Plaintiffs Favorites: Past Transgressions, Accusations, and Other Plays from Plaintiffs Playbook Table of Contents Presentation...5 How to Deal with Plaintiffs Favorites: Past Transgressions... Schmidt and Bacon 3

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5 Presentation How to Deal with Plaintiffs Favorites: Past Transgressions, Accusations, and Other Plays from Plaintiffs Playbook I. Plaintiffs in pharma cases are a moving target A. Not a monolithic group B. There are different factions 1. With varying proficiencies 2. Varying tricks C. We will discuss some of the more recent tactics of the plaintiffs bar some of the more dangerous and/or effective ones II. Plaintiff Play #1: Use of the Reptile Brain to attack corporations A. Plaintiffs employ this strategy specially in situations where they can invoke past transgressions and attack the integrity of the corporation and corporate witnesses B. What it is: 1. In 2009, David Ball and Don C. Keenan came out with Reptile: The 2009 Manual of the Plaintiff s Revolution, advocating that plaintiff lawyers appeal to the jurors reptile brains. a) What is the reptile brain? It is the oldest part of the brain and the part responsible for primitive survival instincts. 2. Argument: a) If the plaintiff lawyers appeal to the part of the jurors brain that addresses primal survival instincts by posing the dangers caused by the defendants past or current actions the jurors will do what the reptilian brain compels them to do: protect the community at all costs. 3. The argument is that this part of the brain can overcome logic and reason. How to Deal with Plaintiffs Favorites: Past Transgressions... Schmidt and Bacon 5

6 a) So once the plaintiffs have tapped into this part of the brain, the defendants will not be able to overcome the momentum by sheer argument and logic. C. How plaintiffs used this to attack corporation or corporation s past (seemingly dangerous) transgressions D. Tactics 1. Plaintiffs identify how the defendant is endangering the community in which the jurors exist. 2. The Safety Rule. That is where the plaintiff lawyer will establish a common-sense safety rule, get the defendants to agree it is a safety rule, then show how they violated the rule and thus endangered the community. The hope is that then the jurors reptile brain will be activated. 3. After showing the safety rule is broken, the plaintiff lawyers demonstrate how the jurors can improve the group s safety by using their power as jurors to teach the defendant a lesson. 4. Plaintiffs will argue that the danger increases if the jurors fail to use their power to enforce the safety rule. 5. It is effective because it gives the jurors what they most want - agency to do the right thing 1. Plaintiffs will set up this construct in depositions, not just at trial. 2. Defendants need to be aware of this set up -often too late to only respond at trial if the set-ups were effective E. How to counter the reptile brain approach 1. Appeal to the non-reptilian parts of the brain - Reptile brain relies on simplicity and lack of nuance 2. Respond to the reptile part of the brain. Show how plaintiffs are wrong a) undermine plaintiffs credibility b) show how the company actually acted in a safe manner 6 Drug and Medical Device May 2017

7 c) show the overreaching and the oversimplification 3. Focus on fact that jurors are here to decide a single case with a single plaintiff. a) This is not a referendum on everything defendants did with every member of the community over all time. b) Remind the jurors of their job in THIS case. 4. Invoke the same approach but point it back at the plaintiffs. a) Are there ways that the jurors can feel that the plaintiffs are jeopardizing the community? b) Falsely accusing somebody? c) Putting innocent people at great risk? d) Not permitting the corporation a fair second chance after developed evidence of remediation? III. Plaintiff Play #2: Mess with High Level Defense Witnesses A. Increasingly, plaintiffs are attempting to force corporate executives to testify in deposition or at trial, even when they know little about the underlying litigation and even when they are not within subpoena range. 1. There have been several recent cases where corporate executives have been forced to testify at trial vs. just giving a deposition 2. There are variations in state law on this, with some states following the more conservative federal rule approach and others ignoring it. See, e.g., Wash. Civ. R. 43(f)(1); Media Servs., Inc. v. Sheraton Corp. of Am., 192 A.2d 166, 167 (N.J. Super. Ct. App. Div Even federal law is not consistent in certain ways, especially if a director is subpoenaed. 4. We will discuss ways to minimize the damage of such a development B. The witness that does not know a lot but must testify: to educate the witness or not? How to Deal with Plaintiffs Favorites: Past Transgressions... Schmidt and Bacon 7

8 1. Often the wisdom for deposition is that the executive should embrace I don t know 2. I don t know does not play as well to a jury; counsel should be cognizant of the different ground rules for trial vs. a discovery depositions C. The witness that the plaintiffs request but we successfully keep out of court. 1. When are you at risk of the empty chair argument and should you care 2. There are strategic considerations around whether to risk the empty chair (if the judge is not going to compel attendance) 3. You do not always want to avoid the empty chair at all costs 4. We will discuss strategic considerations for when you might want to defense against the empty chair in some way other than bringing the executive to trial D. When the plaintiffs successfully call for the witness to testify by live video: 1. Recent cases in which executives were forced to testify by videotape at trial when they are not within subpoena range 2. How to address/ go with video or at that point capitulate and bring live? What are the considerations? IV. Plaintiff play #3: Relying on a weak expert case A. Defendants spend a ton of resources: time and money on perfecting our expert case B. More and more it appears that plaintiffs either do not care about the strength of their own expert and/or have realized it may not matter in certain jurisdictions 1. Often this approach does not cost them with the jury 2. Plaintiffs make the case more about defendants experts and specifically, their ties to industry/bias/etc. C. We will share examples of this approach and ways for defendants to thwart 8 Drug and Medical Device May 2017

9 1. Too often we feel like we have done a devastating cross of their experts but it does not seem to matter quite as much as it should. 2. If they pass Daubert or Frye on at least some issues and have an expert they can prop to talk about our experts or the plaintiff, that is often enough 3. Some savvy plaintiff lawyers like the David vs. Goliath appeal of our side with a legion of experts and their pared down line-up which is sometimes the result of rulings against them 4. Question is whether the defense is better off with this lopsided expert presentation V. Plaintiff play #4: Embracing inconsistent scientific theories A. Over the life of an MDL, we see more and more that plaintiffs do not shy away from invoking different scientific theories or emphases depending on the part of the case currently at issue B. Yaz case study 1. Current serious VTE case, plaintiffs willingly characterize VTE as different from ATE. a) There are several studies suggesting a higher VTE risk, but very little suggesting any increased ATE risk. 2. Ps view in the serious VTE case contrasts with their global view of things in generic phase of litigation that VTE and ATE are the same 3. In the serious ATE case, because there is no good epi data, Ps focus on lab data and adverse event reporting, and disregarding most of the clinical studies. 4. They turn the hierarchy of scientific evidence on its ear. 5. And they rely on the VTE studies, a clot is a clot. C. Accutane case study 1. In the context of one form of inflammatory bowel disease -- ulcerative colitis -- plaintiffs embrace positive point How to Deal with Plaintiffs Favorites: Past Transgressions... Schmidt and Bacon 9

10 estimates and argue that a (cherry-picked) meta-analysis shows a statistically significant effect. 2. In the context of the other form of inflammatory bowel disease -- Crohn s disease -- plaintiffs argue that no metaanalysis is appropriate and that every study is flawed. D. Ways to combat: 1. Make sure we stay intellectually honest over the life of the case 2. Their approach makes it easier to enlist third party experts and treating doctors to advocate for actual science 3. Have their experts dig in and commit to their theories early on to avoid their ability to hedge later in the litigation 4. Call the plaintiffs out on their inconsistencies and their misuse of the data. VI. Plaintiff play #5: reverse the burden of proof A. Plaintiffs often seek to reverse or blur the burden of proof 1. They do this generally, suggesting that a preponderance only means they need to tip the scales by a feather 2. Increasingly, they try to do this by blurring individual elements of their case out. For example, they will invoke the standard for a warning, which does not require established causation, to blur their independent standard of proving general causation. 3. Similarly, they will try to avoid their burden by faulting the company, such as for never conducting a study. B. Effective responses include: 1. Articulating the elements clearly for the jury throughout the trial. 2. Fighting labeling challenges by showing the lack of causation 3. Fully defending the company s conduct VII. Plaintiff plays from recent high-profile trials 10 Drug and Medical Device May 2017

11 A. Dealing with the government unique challenges in dealing with the government as plaintiff 1. Odd incentive structure not the same as private parties 2. Depends on the administration in place challenges exist in a period of transition How to Deal with Plaintiffs Favorites: Past Transgressions... Schmidt and Bacon 11

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