Christopher v. Depuy Orthopaedics, Inc. (In re Depuy Orthopaedics, Inc., Pinnacle Hip Implant Prod. Liab. Litig.)

888 F.3d 753

IN RE: DEPUY ORTHOPAEDICS, INCORPORATED, PINNACLE HIP IMPLANT PRODUCT LIABILITY LITIGATION

Jay Christopher, Plaintiff–Appellee Cross–Appellant,

Jacqueline Christopher, Plaintiff–Appellee,

v.Depuy Orthopaedics, Incorporated; Johnson & Johnson, Defendants–Appellants Cross–Appellees.

Richard Klusmann, Plaintiff–Appellee Cross–Appellant,

Susan Klusmann, Plaintiff–Appellee,

v.Depuy Orthopaedics, Incorporated; Johnson & Johnson, Defendants–Appellants Cross–Appellees.

Donald Greer, Plaintiff–Appellee Cross–Appellant,

v.Depuy Orthopaedics, Incorporated; Johnson & Johnson, Defendants–Appellants Cross–Appellees.

Robert Peterson, Plaintiff–Appellee Cross–Appellant,

Karen Peterson, Plaintiff–Appellee,

v.Depuy Orthopaedics, Incorporated; Johnson & Johnson, Defendants–Appellants Cross–Appellees.

Margaret Aoki, Plaintiff–Appellee Cross–Appellant,

v.Depuy Orthopaedics, Incorporated; Johnson & Johnson, Defendants–Appellants Cross–Appellees.

Margaret Aoki, Plaintiff–Appellee,

v.Depuy Orthopaedics, Incorporated; Johnson & Johnson, Defendants–Appellants.

Jay Christopher; Jacqueline Christopher, Plaintiffs–Appellees,

v.Depuy Orthopaedics, Incorporated; Johnson & Johnson, Defendants–Appellants.

Donald Greer, Plaintiff–Appellee,

v.Depuy Orthopaedics, Incorporated; Johnson & Johnson, Defendants–Appellants.

Richard Klusmann; Susan Klusmann, Plaintiffs–Appellees,

v.Depuy Orthopaedics, Incorporated; Johnson & Johnson, Defendants–Appellants.

Robert Peterson; Karen Peterson, Plaintiffs–Appellees,

v.Depuy Orthopaedics, Incorporated; Johnson & Johnson, Defendants–Appellants.

No. 16-11051

No. 16-11052

No. 16-11053

No. 16-11054

No. 16-11056

No. 17-10030

No. 17-10031

No. 17-10032

No. 17-10034

No. 17-10035

United States Court of Appeals, Fifth Circuit.

FILED April 25, 2018

W. Mark Lanier, Esq., Miriam Michelle Carreras, Kevin Philip Parker, Lanier Law Firm, P.C., Wayne Fisher, Justin Presnal, Esq., Fisher, Boyd, Johnson & Huguenard, L.L.P., Houston, TX, Richard J. Arsenault, Esq., Neblett, Beard & Arsenault, Alexandria, LA, Jayne Conroy, Hanly, Conroy, Bierstein & Sheridan, L.L.P., New York, NY, Kenneth Winston Starr, Waco, TX, Stephen E. Harrison, II, Harrison Davis Steakley Morrison Jones, P.C., Woodway, TX, Daniel Wesley McDonald, McDonald Law Firm, Fort Worth, TX, W. Bradley Parker, Parker Law Firm, P.C., Bedford, TX, Donna Jo Bowen, Slack & Davis, L.L.P., Austin, TX, for Plaintiffs–Appellees Cross–Appellants.

Paul D. Clement, Jeffrey Matthew Harris, George W. Hicks, Jr., Michael Dallas Lieberman, Kirkland & Ellis, L.L.P., John H. Beisner, Skadden, Arps, Slate, Meagher & Flom, L.L.P., Washington, DC, Michael Vance Powell, Locke Lord, L.L.P., Dallas, TX, for Defendants–Appellants Cross–Appellees.

Archis Ashok Parasharami, Mayer Brown, L.L.P., Washington, DC, for Amicus Curiae Chamber of Commerce of the United States of America.

J. Campbell Barker, Deputy Solicitor General, Office of the Solicitor General for the State of Texas, Austin, TX, for Amicus Curiae State of Texas.

Before SMITH, BARKSDALE, and HIGGINSON, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

These appeals and cross-appeal are from the second in a series of bellwether trials from the Pinnacle Hip multidistrict litigation ("MDL"), in which several thousand plaintiffs claim injuries from Pinnacle hips manufactured and sold by DePuy Orthopaedics, Incorporated ("DePuy").¹ The five plaintiffs in this consolidated action—Margaret Aoki, Jay Christopher, Donald Greer, Richard Klusmann, and Robert Peterson² —received Pinnacle's metal-on-metal ("MoM") design, suffered complications, and required revision surgery. They sued DePuy and its parent corporation, Johnson & Johnson ("J & J"),³ and secured a half-billion-dollar jury verdict. Defendants' various post-trial motions—for judgment as a matter of law ("JMOL"), dismissal of claims against J & J for lack of personal jurisdiction, and a mistrial—were denied. Defendants renew all three lines of argument on appeal, attacking the verdict on nearly twenty independent bases. Plaintiffs cross-appeal, claiming Texas's exemplary-damages cap violates the state and federal constitutions. In a companion appeal, defendants appeal the denial of relief from judgment under Federal Rule of Civil Procedure 60(b)(3) on the ground that plaintiffs' counsel, Mark Lanier, concealed payment arrangements with two key expert witnesses.

Disposing of the two sets of appeals together,⁴ we conclude that only a few of plaintiffs' claims fail as a matter of law but that the district court's evidentiary errors and Lanier's deceptions furnish independent grounds for a new trial. Hence, we reverse in part, vacate the judgment and the order denying Rule 60(b)(3) relief, and remand.

I. Background

In 2011, the Judicial Panel on MDL ordered centralization of pretrial proceedings in the Northern District of Texas for cases involving the Pinnacle Acetabular Cup System hip implants. The parties agreed to a protocol for bellwether trials and, together, identified a pool of eight cases from which to select the candidates. The first bellwether trial lasted two months and ended in a jury verdict for J & J and DePuy (jointly "defendants"). The district court then jettisoned the seven remaining cases and ordered the parties to prepare ten new ones for trial. Five of those were consolidated, over defendants' objection, for the second bellwether trial, which lasted nine weeks and forms the basis of these appeals and cross-appeal.

At trial, plaintiffs claimed DePuy defectively designed and marketed its MoM implant and that J & J was liable, as a "nonmanufacturer seller," for aiding and abetting and for negligent undertaking. At the heart of the claims lay the contested science of modern hip prosthetics, and we begin with the narrow points of agreement. As outlined in both sides' briefs, prosthetic hips are designed to replicate the hip's ball-and-socket function and typically consist of four components: a stem inserted into the femur, a femoral head attached to the stem (the hip "ball"), a cup implanted into the hip socket (the acetabulum), and a metal liner that fits into the cup and against which the ball articulates.

The liner can be made from metal, polyethylene, or ceramic. The product at issue is Pinnacle's MoM design, in which both head and liner (Ultamet) are made of metal. Plaintiffs received the Ultamet but, several years later, required revision to metal-on-plastic ("MoP") or metal-on-ceramic designs.

The briefs and trial transcripts present competing histories on hip-implant technology. Both sides agree the story begins in the 1960s with "first-generation" MoMs, the earliest models to achieve widespread use. The parties further agree that these early MoMs carried certain health risks and were quickly displaced by Sir John Charnley's metal-on-plastic ("MoP") design, long described as the industry's "gold standard."

Here, we reach a fork. Defendants suggest that, in the 1990s, MoP was viewed as the industry's "weak link" because of its tendency to cause osteolysis, bone loss in the area surrounding the implant. When the metal ball articulates against the plastic liner, it generates debris from plastic wear that can cause dissolving of the surrounding bone, which, in turn, can require revision surgery. Defendants, along with several other manufacturers, promoted MoMs in the early 2000s to address this Achilles' heel and offer high-activity patients an alternative that would wear out more slowly than plastic.

Plaintiffs meanwhile tell a less rosy story. They claim defendants hastily reintroduced Ultamet to market, without conducting any clinical tests, for the sole purpose of increasing market share. Medical science had long discovered that plastic-wear debris, and the attendant risk of osteolysis, could be reduced considerably if the plastic liner was "cross-linked," that is, sterilized through radiation. Yet, the theory goes, defendants lured surgeons away from cross-linked plastic's proven success through an intricate misinformation campaign of false advertisements and DePuy-authored academic papers.

On the core issue of marketing and design, the parties waged a war of the experts. Plaintiffs elicited testimony from engineers and medical scientists that Ultamet's MoM design was a producing cause of their injuries and that cross-linked MoP was a safer alternative. They also offered evidence that defendants, before bringing the product to market, were made aware of the considerable, and arguably unjustifiable, risks of MoM. Defendants' experts countered that, although MoP might be better suited to older patients, the risk-benefit calculus for younger, more active patients might still favor MoM. Defendants further maintained they had always been forthcoming with treating physicians about this risk calculus. The district court admitted several pieces of inflammatory character evidence against defendants—including claims of race discrimination and bribes to Saddam Hussein's Iraqi "regime"—reasoning the defendants had "opened the door" by repeatedly presenting themselves as "wonderful people doing wonderful things."

The jury found for plaintiffs on the five above-mentioned causes of action and returned a $502 million verdict. It awarded just $500,000 in economic compensatory damages and $141.5 million in non-economic compensatory damages, and DePuy and J & J were assessed exemplary damages of $120 million and $240 million, respectively. The defendants made numerous post-trial motions—for JMOL on all claims, for dismissal on jurisdictional grounds, and for mistrial. All were denied, save the request that the court apply Texas's statutory exemplary-damages cap, which reduced the $360 million to $9.6 million. Defendants appeal the judgment, and plaintiffs cross-appeal application of the cap.

In a companion appeal, defendants request relief from judgment under Federal Rule of Civil Procedure 60(b)(3), based on plaintiffs' counsel's failure to disclose payments to two purportedly "nonretained" experts—Dr....