DePuy Appeals Verdict in California Cases

Case: 17-10017 Document: 00514177966 Page: 1 Date Filed: 09/29/2017
NO. 17-10017
UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT
_____________________________
IN RE: DEPUY ORTHOPAEDICS, INCORPORATED, PINNACLE HIP IMPLANT

PRODUCT LIABILITY LITIGATION
_____________________________
ROSA A. METZLER; VOLKMAR METZLER,

Plaintiffs-Appellants
v.
DEPUY ORTHOPAEDICS, INCORPORATED; JOHNSON & JOHNSON SERVICES,
INCORPORATED; DEPUY PRODUCTS, INCORPORATED; DEPUY SYNTHES,
INCORPORATED; JOHNSON & JOHNSON; JOHNSON & JOHNSON INTERNATIONAL,
Defendants-Appellees
(Caption Continued on Inside Cover)
_____________________________
On Appeal from the United States District Court

For the Northern District of Texas (Kinkeade, J.)
Nos. 12-cv-2066, 13-cv-3631, 13-cv-3938, 13-cv-1730, 15-cv-1767, 15-cv-3484
___________________________
PRINCIPAL AND RESPONSE BRIEF

FOR DEFENDANTS-APPELLEES-CROSS-APPELLANTS
___________________________
JOHN H. BEISNER PAUL D. CLEMENT

STEPHEN J. HARBURG Counsel of Record
SKADDEN, ARPS, SLATE, GEORGE W. HICKS, JR.
MEAGHER & FLOM LLP MICHAEL D. LIEBERMAN
1440 New York Avenue, NW ROBERT M. BERNSTEIN
Washington, DC 20005 KIRKLAND & ELLIS LLP
(202) 371-7000 655 Fifteenth Street, NW
Washington, DC 20005
MICHAEL V. POWELL (202) 879-5000
LOCKE LORD LLP paul.clement@kirkland.com
2200 Ross Avenue, Suite 2800
Dallas, TX 75201
(214) 740-8453
Counsel for Defendants-Appellees-Cross-Appellants
September 29, 2017
_____________________________
Consolidated with
Case No. 17-10018
____________________________

_____________________________
MICHAEL WEISER; RANDI WEISER,

v.
DEPUY ORTHOPAEDICS, INCORPORATED; JOHNSON & JOHNSON; JOHNSON &
JOHNSON SERVICES, INCORPORATED; DEPUY PRODUCTS, INCORPORATED; DEPUY
SYNTHES, INCORPORATED; JOHNSON & JOHNSON INTERNATIONAL,
_____________________________
Consolidated with
Case No. 17-10019
____________________________

_____________________________
JUDITH RODRIGUEZ,
Plaintiff-Appellant
v.
DEPUY ORTHOPAEDICS, INCORPORATED; JOHNSON & JOHNSON SERVICES,
INCORPORATED; JOHNSON & JOHNSON; DEPUY PRODUCTS, INCORPORATED; DEPUY
SYNTHES, INCORPORATED; JOHNSON & JOHNSON INTERNATIONAL,
_____________________________
_____________________________
Consolidated with
Case No. 17-10020
____________________________

_____________________________
LINDA STANDERFER,
Plaintiff-Appellant
v.
DEPUY ORTHOPAEDICS, INCORPORATED; DEPUY PRODUCTS, INCORPORATED;
DEPUY INTERNATIONAL LIMITED; JOHNSON & JOHNSON SERVICES, INCORPORATED;
DEPUY SYNTHES, INCORPORATED; JOHNSON & JOHNSON;
JOHNSON & JOHNSON INTERNATIONAL,
____________________________
Consolidated with
Case No. 17-10021
____________________________

_____________________________
KATHLEEN DAVIS; PETE G. DAVIS,

v.
_____________________________
_____________________________
Consolidated with
Case No. 17-10022
____________________________

_____________________________
MARVIN ANDREWS; ELIZABETH ANDREWS,

v.
_____________________________
Consolidated with
Case No. 17-10831
____________________________

_____________________________
ROSA A. METZLER; VOLKMAR METZLER,

Plaintiffs-Appellees
v.
DEPUY ORTHOPAEDICS, INCORPORATED; JOHNSON & JOHNSON,
Defendants-Appellants
_____________________________
_____________________________
Consolidated with
Case No. 17-10834
____________________________

_____________________________
MICHAEL WEISER; RANDI WEISER,

v.
_____________________________
Consolidated with
Case No. 17-10832
____________________________

_____________________________
JUDITH RODRIGUEZ,
Plaintiff-Appellee
v.
_____________________________
Consolidated with
Case No. 17-10833
____________________________

_____________________________
LINDA STANDERFER,
Plaintiff-Appellee
v.
______________________________
Consolidated with
Case No. 17-10830
______________________________

____________________________
KATHLEEN DAVIS; PETE G. DAVIS,

v.
_____________________________
Consolidated with
Case No. 17-10828
____________________________

____________________________
MARVIN ANDREWS; ELIZABETH ANDREWS,

v.
_____________________________
CERTIFICATE OF INTERESTED PERSONS
Metzler et al. v. DePuy Orthopaedics, Inc. et al., Nos. 17-10017, 17-10018,
17-10019, 17-10020, 17-10021, 17-10022, 17-10828, 17-10830, 17-10831,
17-10832, 17-10833, 17-10834
The undersigned counsel of record certifies that the following listed persons
and entities as described in the fourth sentence of Fifth Circuit Rule 28.2.1 have an
interest in the outcome of this case. These representations are made in order that the
judges of this court may evaluate possible disqualification or recusal:
1. Marvin Andrews, Elizabeth Andrews, Kathleen Davis, Pete Davis, Rosa Metzler,
Volkmar Metzler, Judith Rodriguez, Linda Standerfer, Michael Weiser, and Randi
Weiser, Plaintiffs-Appellants-Cross-Appellees.
2. DePuy Orthopaedics, Inc., Johnson & Johnson, Johnson & Johnson Services,
Inc., DePuy Products, Inc., DePuy Synthes, Inc., Johnson & Johnson
International, Defendants-Appellees-Cross-Appellants.
3. Kenneth W. Starr; The Lanier Law Firm, PC (Arthur R. Miller, W. Mark Lanier,
Kevin Parker, M. Michelle Carreras); Fisher, Boyd, Johnson & Huguenard, LLP
(Wayne Fisher, Justin Presnal); Neblett, Beard & Arsenault (Richard J. Arsenault,
Jennifer M. Hoekstra); Simmons Hanly Conroy (Jayne Conroy, Andrea
Bierstein); Walkup, Melodia, Kelly & Schoenberger (Khaldoun Baghdadi),
Counsel for Plaintiffs-Appellants-Cross-Appellees.
i
4. Kirkland & Ellis LLP (Paul D. Clement, George W. Hicks, Jr., Michael D.
Lieberman; Robert M. Bernstein); Skadden, Arps, Slate, Meagher & Flom LLP
(John H. Beisner, Stephen J. Harburg, Jessica D. Miller, Geoffrey M. Wyatt);
Locke Lord LLP (Michael V. Powell, Seth M. Roberts); Stoel Rives LLP (John
A. Anderson); Quattlebaum, Grooms & Tull PLLC (Steven W. Quattlebaum);
Estes Thorne & Carr PLLC (Dawn Estes), Counsel for Defendants-Appellees-
Cross-Appellants.
s/Paul D. Clement
Paul D. Clement
Counsel of Record
Kirkland & Ellis LLP
655 Fifteenth Street NW
(202) 879-5000
paul.clement@kirkland.com
Counsel for Defendants-Appellees
ii
STATEMENT REGARDING ORAL ARGUMENT
Although this Courts decision in the related case In re Depuy Orthopaedics,
Inc., ___ F.3d ___, 2017 WL 3768923 (5th Cir. Aug. 31, 2017), resolves the
dispositive personal-jurisdiction question in this appeal, Defendants nevertheless
request oral argument. This appeal arises from a complex two-month trial in one of
the largest multidistrict litigation proceedings pending in the federal court system,
and it presents numerous errors by the district court that may be repeated in future
trials absent correction by this Court.
iii
TABLE OF CONTENTS
CERTIFICATE OF INTERESTED PERSONS ......................................................... i
STATEMENT REGARDING ORAL ARGUMENT ............................................... iii
TABLE OF AUTHORITIES ................................................................................... vii
STATEMENT OF JURISDICTION ......................................................................... 1
PRELIMINARY STATEMENT................................................................................ 1
STATEMENT OF THE ISSUES .............................................................................. 5
STATEMENT OF THE CASE.................................................................................. 6
A. Background on Hip Implants and the Ultamet..................................... 6
B. The MDL Proceedings ......................................................................... 8
C. The First and Second MDL Trials ...................................................... 10
D. The Third MDL Trial...........................................................................11
E. The Fourth MDL Trial and Mandamus Petition................................. 14
STANDARD OF REVIEW .................................................................................... 16
SUMMARY OF ARGUMENT ............................................................................... 17
ARGUMENT .......................................................................................................... 20
I. The District Court Did Not Have Personal Jurisdiction Over

Defendants .................................................................................................... 20
II. The District Court Abused Its Discretion By Sua Sponte

Consolidating Six Separate Cases For One Bellwether Trial ................... 29
A. Consolidation of the Trials Did Not Provide Any Benefit Not

Already Secured by Consolidation of Pretrial Proceedings ............... 31
B. Consolidation Confused the Jury and Prejudiced Defendants ........... 33
III. Defendants Are Entitled To A New Trial In Light Of The District

Courts Erroneous Evidentiary And Testimonial Rulings ............................ 38
iv
A. The District Court Erred by Allowing Dr. Bernard Morrey to

Testify Without Providing a Proper Expert Report ............................ 38
B. The District Court Erred by Allowing Plaintiffs to Introduce

the Deferred Prosecution Agreement and Civil Settlement ............... 44
C. The District Court Exceeded Its Subpoena Power and

Improperly Compelled Witnesses to Testify by Live Video
Transmission....................................................................................... 47
IV. DePuy And J&J Are Entitled To Judgment As A Matter Of Law On

All Claims ..................................................................................................... 52
A. Plaintiffs Design-Defect Claims Fail as a Matter of Law ................. 52
1. Plaintiffs theory of categorical defect is not viable

under California law................................................................. 52
2. Federal law preempts plaintiffs design-defect claims............. 56
B. Plaintiffs Failure To Recall Claims Fail as a Matter of Law............. 58
C. Plaintiffs Failure-To-Warn and Fraud Claims Fail as a Matter

of Law................................................................................................. 60
V. The Non-Economic Compensatory Damages Awards Must Be

Vacated Or Remitted ..................................................................................... 62
A. The Compensatory Damages Awards Were Excessive ...................... 62
B. The Record Contains No Evidence to Support Multiple

Categories of Compensatory Damages .............................................. 66
VI. The Punitive Damages Award Must Be Reduced ......................................... 69
A. The Punitive Damages Award Is Excessive ....................................... 69
B. Plaintiffs Waived Their Argument That The District Court

Erred By Reducing The Punitive Damages Award ............................ 73
C. The District Court Did Not Err By Reducing The Punitive

Damages Award .................................................................................. 74
CONCLUSION ....................................................................................................... 76
v
CERTIFICATE OF COMPLIANCE
CERTIFICATE OF SERVICE
vi
TABLE OF AUTHORITIES
Cases
Aoki v. Johnson & Johnson Svc, Inc.,

No. 17-10030 (5th Cir. filed Jan. 10, 2017) ................................................. 10, 41
Applied Equip. Corp. v. Litton Saudi Arabia Ltd.,

7 Cal. 4th 503 (1994) ..........................................................................................61
Armstrong v. LaSalle Bank Natl Assn,

552 F.3d 613 (7th Cir. 2009) ...............................................................................28
Baker v. Chrysler Corp.,

55 Cal. App. 3d 710 (1976).................................................................................53
Barfield v. Madison Cty.,

212 F.3d 269 (5th Cir. 2000) ...............................................................................58
Bigler-Engler v. Breg, Inc.,

7 Cal. App. 5th 276 (2017) .................................................................................65
Bristol-Myers Squibb Co. v. Superior Court of Cal.,

137 S. Ct. 1773 (2017) ........................................................................... 23, 24, 26
Cadlo v. Owens-Ill., Inc.,

125 Cal. App. 4th 513 (2004) .............................................................................60
Cain v. Armstrong World Indus.,

785 F. Supp. 1448 (S.D. Ala. 1992) ....................................................................34
Campbell v. Boston Scientific Corp.,

No. 16-2279 (4th Cir. filed Nov. 4, 2016) ..........................................................29
Castano v. Am. Tobacco Co.,

84 F.3d 734 (5th Cir. 1996) .................................................................................33
Christopher v. Johnson & Johnson Svc, Inc.,

No. 16-11051 (5th Cir. filed July 11, 2016) ........................................................10
Clemens v. McNamee,
615 F.3d 374 (5th Cir. 2010) ...............................................................................16
vii
Collins v. Union Pac. R.R.,

207 Cal. App. 4th 867 (2012) .............................................................................65
Contogouris v. Pac. W. Res., L.L.C.,

551 F. Appx 727 (5th Cir. 2013) ........................................................................45
Crawford v. Washington,
541 U.S. 36 (2004) ..............................................................................................43
Davis v. Alaska,
415 U.S. 308 (1974) ............................................................................................43
Dupont v. S. Pac. Co.,

366 F.2d 193 (5th Cir. 1966) ...............................................................................30
Eghnayem v. BSX,
No. 16-11818 (11th Cir. filed July 11, 2017) ......................................................29
Eller v. Trans Union, LLC,

739 F.3d 467 (10th Cir. 2013) .............................................................................50
Elsner v. Uveges,
34 Cal. 4th 915 (2004) ........................................................................................66
Exxon Shipping Co. v. Baker,

554 U.S. 471 (2008) ............................................................................... 70, 71, 75
Foradori v. Harris,
523 F.3d 477 (5th Cir. 2008) ...............................................................................62
Fuhrman v. Dretke,
442 F.3d 893 (5th Cir. 2006) ...............................................................................22
Harmon v. Ga. Gulf Lake Charles LLC,

476 F. Appx 31 (5th Cir. 2012) ..........................................................................39
Hernandez v. Badger Constr. Equip. Co.,

28 Cal. App. 4th 1791 (1994) .............................................................................58
Hines v. Davidowitz,
312 U.S. 52 (1941) ..............................................................................................56
viii
In re: Boston Scientific Corp. Pelvic Repair System, No. 12-md-2326

(S.D. W. Va. filed Feb. 7, 2012) ..........................................................................29
In re Chevron U.S.A., Inc.,

109 F.3d 1016 (5th Cir. 1997) .............................................................................31
In re Depuy Orthopaedics, Inc.,

___ F.3d ___, 2017 WL 3768923
(5th Cir. Aug. 31, 2017) .............................................................................. passim
In re DePuy Orthopaedics, Inc., Pinnacle Hip Implant

Prods. Liab. Litig.,
787 F. Supp. 2d 1358 (J.P.M.L. 2011) ........................................................... 8, 31
In re FMC Corp. Patent Litig.,

422 F. Supp. 1163 (J.P.M.L. 1976) .....................................................................25
In re Repetitive Stress Injury Litig.,

11 F.3d 368 (2d Cir. 1993) ..................................................................................30
In re Van Waters & Rogers, Inc.,

145 S.W.3d 203 (Tex. 2004) ...............................................................................35
In re Yasmin & Yaz (Drospirenone) Mktg., Sales Practices

& Prods. Liab. Litig.,
2011 WL 1375011 (S.D. Ill. Apr. 12, 2011)........................................................27
Janssen Pharmaceutica, Inc. v. Armond,

866 So. 2d 1092 (Miss. 2004) .............................................................................37
Kentucky v. Stincer,
482 U.S. 730 (1987) ............................................................................................43
Latiolais v. Cravins,
574 F. Appx 429 (5th Cir. 2014) ........................................................................46
Latiolais v. Merck & Co.,

302 F. Appx 756 (9th Cir. 2008) ........................................................................60
Lebron v. United States,

279 F.3d 321 (5th Cir. 2002) ...............................................................................62
ix
Lexecon Inc. v. Milberg,

523 U.S. 26 (1998) ......................................................................................... 9, 25
Linegar v. Armour of Am., Inc.,

909 F.2d 1150 (8th Cir. 1990) .............................................................................55
Little v. Liquid Air Corp.,

37 F.3d 1069 (5th Cir. 1994) ...............................................................................73
Loth v. Truck-A-Way Corp.,

60 Cal. App. 4th 757 (1998) ...............................................................................67
Luttrell v. Island Pac. Supermarkets, Inc.,

215 Cal. App. 4th 196 (2013) .............................................................................65
Lyondell Chem. Co. v. Occidental Chem. Corp.,

608 F.3d 284 (5th Cir. 2010) ...............................................................................46
Malcolm v. Natl Gypsum Co.,

995 F.2d 346 (2d Cir. 1993) ......................................................................... 34, 35
Montes v. Ransom,
219 F. Appx 378 (5th Cir. 2007) ........................................................................73
Motus v. Pfizer Inc.,

196 F. Supp. 2d 984 (C.D. Cal. 2001) ................................................................60
Mullins v. TestAmerica, Inc.,

564 F.3d 386 (5th Cir. 2009) ...............................................................................23
Nobach v. Woodland Vill. Nursing Ctr.,

799 F.3d 374 (5th Cir. 2015) ...............................................................................17
ONeil v. Crane Co.,

266 P.3d 987 (Cal. 2012) ............................................................................. 53, 54
Old Chief v. United States,

519 U.S. 172 (1997) ............................................................................................45
Olibas v. Barclay,
838 F.3d 442 (5th Cir. 2016) ...............................................................................16
x
Parkhurst v. Belt,
567 F.3d 995 (8th Cir. 2009) ...............................................................................50
People v. Keenan,
227 Cal. App. 3d 26 (1991).................................................................................66
People v. Newby,
167 Cal. App. 4th 1341 (2008) ...........................................................................66
Philip Morris USA v. Williams,

549 U.S. 346 (2007) ............................................................................................71
Ping-Kuo Lin v. Horan Capital Mgmt. LLC,

2014 WL 3974585 (S.D.N.Y. Aug. 13, 2014).....................................................49
PLIVA v. Mensing,
564 U.S. 604 (2011) ............................................................................................56
Point Landing, Inc. v. Omni Capital Intl, Ltd.,

795 F.2d 415 (5th Cir. 1986) ...............................................................................27
Pooshs v. Phillip Morris USA, Inc.,

904 F. Supp. 2d 1009 (N.D. Cal. 2012) ................................................. 52, 53, 54
Purdy v. Swift & Co.,

34 Cal. App. 2d 656 (1939).................................................................................67
Rheumatology Diagnostics Lab., Inc. v. Aetna, Inc.,

No. 12-cv-05847, 2015 U.S. Dist. LEXIS 92776
(N.D. Cal. July 16, 2015) ....................................................................................49
Scallan v. Duriron Co.,

11 F.3d 1249 (5th Cir. 1994) ...............................................................................55
Seffert v. L.A. Transit Lines,

56 Cal. 2d 498 (1961) .........................................................................................62
Sekhar v. United States,

133 S. Ct. 2720 (2013) ........................................................................................26
Smith v. Transworld Drilling Co.,

773 F.2d 610 (5th Cir. 1985) ...............................................................................16
xi
State Farm Mut. Auto. Ins. Co. v. Campbell,

538 U.S. 408, 412 (2003)............................................................................ passim
Stockman v. Oakcrest Dental Ctr., P.C.,

480 F.3d 791 (6th Cir. 2007) ...............................................................................46
Stone v. Ctr. Tr. Retail Properties, Inc.,

163 Cal. App. 4th 608 (2008) .............................................................................66
Stripling v. Jordan Prod. Co.,

234 F.3d 863 (5th Cir. 2000) .................................................................. 23, 26, 27
Teague v. City of Flower Mound,

179 F.3d 377 (5th Cir. 1999) ...............................................................................22
Theriot v. Danek Med., Inc.,

168 F.3d 253 (5th Cir. 1999) ...............................................................................55
United States v. Fokker Servs. B.V.,

818 F.3d 733 (D.C. Cir. 2016) ............................................................................47
Walden v. Fiore,
134 S. Ct. 1115 (2014) ........................................................................................24
Westphal v. Wal-Mart Stores, Inc.,

68 Cal. App. 4th 1071 (1998) .............................................................................66
Statutes
21 U.S.C. 360f(a)(1) ..............................................................................................57
28 U.S.C. 1407 .............................................................................................. 8, 9, 25
Rules
Fed. R. Civ. P. 4(k)(1)(A) .................................................................................. 22, 27
Fed. R. Civ. P. 26(a)(2).............................................................................................39
Fed. R. Civ. P. 26(a)(2) advisory committees note to 1993

amendment ........................................................................................................ 39, 42
Fed. R. Civ. P. 26(a)(2)(B)(ii)-(vi) ...........................................................................41
xii
Fed. R. Civ. P. 32(a)(4).............................................................................................51
Fed. R. Civ. P. 37(c)(1)...................................................................................... 39, 41
Fed. R. Civ. P. 42(a) .................................................................................................30
Fed. R. Civ. P. 43(a) advisory committees note to 1996 amendment.....................48
Fed. R. Civ. P. 45(c) .................................................................................................48
Fed. R. Evid. 404(b) .................................................................................................45
Regulations
21 C.F.R. 888.3310 ................................................................................................55
21 C.F.R. 888.3330 ................................................................................................55
21 C.F.R. 888.3330(b) ............................................................................................57
78 Fed. Reg. 4094 (Jan. 18, 2013) ...........................................................................57
81 Fed. Reg. 8146 (Feb. 18, 2016) ..........................................................................57
Other Authorities
Am. Bar Assn, Post-Sale Duty to Warn: A Report of the Products
Liability Committee (2004) .................................................................................59
Amanda Bronstad, Consolidated Trials Drawing Fire From Defense

as Unfair, Natl Law Journal (July 25, 2017), http://bit.ly/2wSosfc..................37
Amended Complaint, Paoli v. DePuy Orthopaedics, Inc.,

No. 3:12-cv-04975-K (N.D. Tex. Mar. 14, 2014) ...............................................10
Amended Court Order, In re: DePuy Orthopaedics, Inc.,

No. 16-11419 (5th Cir. Sept. 27, 2016) ..............................................................48
Duke Law Center for Judicial Studies, Standards and Best Practices
for Large and Mass Tort MDLs (Dec. 19, 2014) ......................................... 29, 30
Hon. Eldon E. Fallon, Bellwether Trials in Multidistrict Litigation,

82 Tulane L. Rev. 2323 (2008) ...........................................................................32
xiii
Justice Zerne P. Haning (Ret.) et al, California Practice Guide:

Personal Injury (2017)........................................................................................66
Manual for Complex Litigation, Fourth (2004) ............................................ 9, 30, 33
Michelle J. White, Why the Asbestos Genie Wont Stay in the

Bankruptcy Bottle, 70 U. Cin. L. Rev. 1319 (2002) ...........................................36
Order, Alicea v. DePuy Orthopaedics, Inc., No. 15-cv-3489

(N.D. Tex. June 28, 2017) ............................................................................ 14, 28
Order, In re Cook Medical, Inc., No. 14-md-2570

(S.D. Ind. July 19, 2016).....................................................................................29
Order, In re DePuy Orthopaedics, Inc., No. 17-10812

(5th Cir. Sept. 19, 2017) ......................................................................................16
Order, In re Fresenius Granuflo/Naturalyte Dialysate,

No. 13-md-2428 (D. Mass. Apr. 8, 2014) ...........................................................29
Order, In re Testosterone Replacement Therapy, No. 14-cv-1748

(N.D. Ill. Mar. 15, 2017) .....................................................................................29
Order, In re Xarelto (Rivaroxaban), No. 14-md-2592

(E.D. La. Aug. 12, 2016).....................................................................................29
Order, In re Zimmer NexGen Knee Implant, No. 11-cv-5468

(N.D. Ill. Mar. 11, 2016) .....................................................................................29
Petition, In re DePuy Orthopaedics, Inc., No. 17-10812

(5th Cir. Sep. 1, 2017) .................................................................................. 16, 22
Practice & Procedure Order No. 10, In re Propecia Finasteride,

No. 12-md-2331 (E.D.N.Y. Mar. 16, 2016) ........................................................29
Response, In re DePuy Orthopaedics, Inc., No. 17-10812

(5th Cir. Aug. 14, 2017) ......................................................................................21
Restatement (Third) of Torts: Product Liability 11 (1998) ....................................59
xiv
STATEMENT OF JURISDICTION
The district court (Kinkeade, J.) entered final judgment in each of these six
consolidated cases on January 3, 2017.1 Plaintiffs filed notices of appeal that same
day. On June 28, 2017, the district court denied post-trial motions filed by
Defendants DePuy Orthopaedics, Inc., and Johnson & Johnson (Defendants).
Defendants filed notices of appeal on July 27, 2017. The district court had subject-
matter jurisdiction under 28 U.S.C. 1332(a)(1), and this Court has jurisdiction
under 28 U.S.C. 1291.
PRELIMINARY STATEMENT
Recent developments have provided a straightforward path for resolving this
appeal and require swift reversal. This appeal arises from the third trial in a
multidistrict litigation (MDL) proceeding involving the Pinnacle Ultamet hip
implant. The trial took place in the Northern District of Texas, proceeded over
Defendants continuing objection to the district courts personal jurisdiction, and
resulted in a verdict of over $1 billion to six California plaintiffs with uniquely
California-based claims. Before the next MDL trial began, Defendants petitioned
this Court for a writ of mandamus, arguing that the district court had conducted this
trial without personal jurisdiction, and was about to repeat its error in a fourth trial,
1
For convenience, this brief uses judgment to refer to all six judgments
collectively.
which was to involve New York plaintiffs. This Court agreed, holding that the
district court had reached a patently erroneous result in determining that it could
subject Defendants to trial. In re Depuy Orthopaedics, Inc., ___ F.3d ___, 2017 WL
3768923, at *5 (5th Cir. Aug. 31, 2017); id. at *10 (Jones, J., concurring in part and
dissenting in part) (noting that our panel majority concludes that the district court
lacked jurisdiction over these cases).
The Court nonetheless declined to grant the writ, but only because Defendants
have the usual and adequate remedy of ordinary appeal, which they have taken
advantage of by appealing the judgment in the third bellwether trial on personal-
jurisdiction grounds. 2017 WL 3768923, at *6. This is that appeal. The earlier
panels analysis of the dispositive personal-jurisdiction question in Defendants
favor is sufficient to resolve this appeal and to reverse the judgment below.
The mandamus panels decision is plainly correct. Plaintiffs have never
disputed that their claims have nothing to do with Texas. Instead, they have
arguedand the district court acceptedthat the exercise of personal jurisdiction
by a Texas court can be justified by contacts with California. But personal
jurisdiction is determined by evaluating a defendants claim-related contacts with
the forum state, and here, the forum statewhere a judge and jury adjudicated
plaintiffs claims against Defendants to the tune of $1 billionwas self-evidently
Texas. Because the six California plaintiffs claims do not relate to any conduct by
2
Defendants in Texas, the district court lacked jurisdiction and the judgment must be
reversed.
* * *
Although the personal-jurisdiction issue alone compels reversal, the
proceedings below were infected with other serious errors independently warranting
vacatur or reversal of the judgment. First, on the eve of what was supposed to be a
bellwether trial, the district court sua sponte consolidated the claims of six
unrelated plaintiffs into one unwieldy trial. That decisionan extreme outlier in the
universe of MDL proceedingswas not justified by any supposed commonalities
between the plaintiffs and defeated the purpose of using bellwether trials, which is
to produce judgments that can be used as meaningful data points to assess the value
of the MDLs remaining claims. It also prejudiced Defendants case, caused jury
confusion, and produced an anomalous verdict implausibly awarding the same
amounts to every plaintiff on every line of the special verdict form despite
substantially different circumstances and evidentiary presentations.
The trial itself featured equally evident errors. The district court allowed
plaintiffs star expert witness to testify at trial, even though he indisputably failed to
produce an expert report that complied with the Federal Rules, thereby preventing
Defendants from effectively preparing their defense and cross-examining his critical
opinions before the jury. The district court allowed plaintiffs to introduce and
3
discussover and over againboth a deferred prosecution agreement between
DePuy and the federal government with no plausible connection to plaintiffs claims
and a related civil settlement that did not include any admission of wrongdoing. The
prejudicial effect was undeniable: The jury awarded punitive damages to each
plaintiff against each defendant in the exact amount of the payment DePuy made in
the civil settlement ($84 million). And the district court misapplied the federal rules
by improperly compelling key witnesses to testify at plaintiffs behest, and then
again by prohibiting defendants from playing deposition testimony from unavailable
witnesses. On top of all that, plaintiffs substantive causes of action suffered from
both fatal legal flaws (such as plaintiffs contending that metal-on-metal hip implants
are categorically defective, rather than identifying a specific defect in the Ultamet)
and failures of proof on critical questions (including an absence of evidence that
plaintiffs surgeons relied on alleged misrepresentations).
The combined effect of these errors was an astronomical $1.04 billion jury
verdict, which cannot be explained by either the relevant law or the factual record,
both of which make clear that the verdict is indefensible. The non-economic
compensatory damages award of $32 million (compared to just $362,000 in
economic damages) is grossly excessive and unsupported by the record evidence.
Half the $32 million award is for future suffering even though all six plaintiffs are
nearly symptom-free. The jurys punitive damages awardwhich the district court
4
reduced from a staggering $1 billion to a still-staggering $509 millionis well
outside the bounds of reason and far beyond what due process permits. Indeed, the
district court appears to have made a quarter-billion dollar computational error in its
effort to reduce the award to produce a single-digit ratio. That the district court could
commit a quarter-billion dollar computational error underscores that the jurys award
was grossly excessive and plainly unconstitutional.
STATEMENT OF THE ISSUES

1. Whether a Texas district court erred by exercising personal jurisdiction over the
Defendants even though plaintiffs claims indisputably did not arise from any
contacts between Defendants and Texas.
2. Whether the district court abused its discretion by consolidating six unrelated
cases into one unwieldy bellwether trial.
3. Whether Defendants are entitled to a new trial in light of the district courts
misapplication of multiple federal rules.
4. Whether the district court erred by denying Defendants motions for judgment as
a matter of law.
5. Whether the jurys compensatory damages award was excessive or unsupported
by evidence.
6. Whether the punitive damages award, as entered by the district court, is
constitutionally defective.
5
7. Whether plaintiffs waived a challenge to the district courts reduction of the
jurys punitive damages award, and if not, whether the district court erred by
reducing the punitive damages award from $1 billion to $509 million.
STATEMENT OF THE CASE
A. Background on Hip Implants and the Ultamet
A hip joint involves a ball-and-socket mechanism in which the rounded head
of the femur (femoral head) meets the pelvis at a concave surface known as the
acetabulum. When the structures in the hip joint become damaged, a person can
suffer severe pain and impaired mobility.
Total hip replacement is a surgical procedure in which a diseased hip joint is
replaced with an artificial implant. In general, a hip implant consists of four
components: (1) a femoral stem, which is a metal stem implanted into the center of
the femur; (2) a femoral head, which is a rounded component, most often made of
metal, that attaches to the stem and replaces the rounded head of the femur; (3) an
acetabular cup, also made of metal, which is secured within the acetabulum when
bone grows into the porous surface or by cement; and (4) a liner, which can be made
of polyethylene, metal, or ceramic, that is placed between the acetabular cup and the
femoral head. Regardless of the materials used for the head and liner (metal,
polyethylene, or ceramic), small particles wear off from the surface of each
component as the femoral head articulates against the liner within the cup. Reactions
6
to those particles have always been a potential cause of complications for hip-
replacement patients.
In a metal-on-metal implant, the femoral head and the liner are both metal.
The first widely used hip implant was a metal-on-metal device that came to
prominence in the 1960s. ROA.17-10017.14791-92, ROA.17-10017.17994.
Around the same time, Sir John Charnley developed a different type of device that
used a liner made of polyethylene. ROA.17-10017.15912. For many years, this
metal-on-polyethylene implant was the gold standard for hip implants.
ROA.17-10017.13077, ROA.17-10017.15912. Over time, however, the medical
community reported significant problems. Polyethylenes wear rate limited the
lifespan of the device, making it unsuitable for younger, active patients. ROA.17-
10017.16556, ROA.17-10017.18286, ROA.17-10017.20569-71. More concerning,
the movement of the metal head against the polyethylene liner generated plastic
particle debris that could trigger an immune reaction causing bone loss in the area
surrounding the implant (a condition called osteolysis). ROA.17-10017.18286.
By the 1990s, the medical community saw polyethylene as the weak link in
hip implants and began searching for new solutions. ROA.17-10017.18044-46,
ROA.17-10017.20568-69. The orthopedic community eventually began to design
new types of metal-on-metal implants that would eliminate the polyethylene
component entirely, thus overcoming the wear and polyethylene debris problems
7
plaguing metal-on-polyethylene devices, while also addressing various issues with
earlier metal-on-metal devices. ROA.17-10017.14832-33; ROA.17-10017.20571.
Between 1999 and 2015, FDA cleared more than 180 metal-on-metal implants from
21 different manufacturers, including different variations of the Pinnacle Ultamet
device at issue here. ROA.17-10017.20109-10.
B. The MDL Proceedings
The multidistrict litigation from which this appeal arises involves the product-
liability claims of more than 9,300 plaintiffs, many of whom have alleged that they
received an Ultamet metal-on-metal hip implant during hip replacement surgery.
Such plaintiffs (and their spouses) alleged they were injured by metal wear particles
generated as the metal head articulated against the metal liner. In addition to DePuy,
plaintiffs sought to impose liability on DePuys parent company, J&J, even though
the Ultamet was manufactured, marketed, and sold exclusively by DePuy and other
independent J&J subsidiaries.
In 2011, the Judicial Panel on Multidistrict Litigation ordered the
centralization in the Northern District of Texas of pretrial proceedings in all actions
involving the Ultamet devices (as well as certain other Pinnacle devices). In re
DePuy Orthopaedics, Inc., Pinnacle Hip Implant Prods. Liab. Litig., 787 F. Supp.
2d 1358, 1360 (J.P.M.L. 2011); see 28 U.S.C. 1407. This MDL proceeding began
as three cases, but has now grown to more than 9,300. Some of those cases have
8
been filed pursuant to the MDL courts direct-file order, a case management order
that the court entered for administrative convenience shortly after it was assigned
the MDL. The direct-file order allows any plaintiff whose case would be subject
to transfer to the MDL to file his or her case directly in the MDL proceedings in
the Northern District of Texas, rather than filing elsewhere and waiting for the
JPML to transfer the case to the MDL court. MDL Dkt.20.2
In consultation with the district court, Defendants and the Plaintiffs Executive
Committee (PEC) agreed to establish a bellwether trial protocol, see MDL
Dkt.247, which was intended to produce a sufficient number of representative
verdicts and settlements to enable the parties and the court to determine the nature
and strength of the claims. Manual for Complex Litigation, Fourth 22.315 (2004).
The parties proposed that the MDL court try four cases from a pool of eight potential
bellwether cases. Defendants agreed not to raise a venue objection to trying any of
those eight cases in the MDL court. That waiver of venue objections was necessary
because an MDL courts authority is limited to pretrial proceedings; it cannot try a
case that it would not be able to try without its MDL status. In re Depuy
Orthopaedics, Inc., 2017 WL 3768923, at *2; see Lexecon Inc. v. Milberg, 523 U.S.
26 (1998); 28 U.S.C. 1407(a). The only way that an MDL court can assign a case
2
References to the MDL Dkt. are to Case No. 11-md-2244 (N.D. Tex.).
9
to itself for trial when venue or personal jurisdiction would otherwise be improper
is if the parties waive their objections. In re Depuy Orthopaedics, Inc., 2017 WL
3768923, at *2.
C. The First and Second MDL Trials

The PEC selected the case for the first bellwether trial from the pool of eight
cases. The plaintiffs were a single Ultamet recipient and her husband. See Amended
Complaint, Paoli v. DePuy Orthopaedics, Inc., No. 3:12-cv-04975-K (N.D. Tex.
Mar. 14, 2014), Dkt.14. The Paoli trial began in September 2014 and lasted almost
two months. The jury returned a complete verdict for Defendants.
The district court did not enter final judgment on the Paoli verdict. Instead,
it sua sponte jettisoned the seven cases remaining from the original pool of
bellwether candidates (as to which discovery was nearly complete) and ordered the
parties to prepare ten new cases for trial, eight of which had been selected by the
PEC. See MDL Dkt.491. Less than one month before the scheduled trial date, the
court notified the parties that five of the cases (all with Texas plaintiffs) would be
consolidated and tried jointly. Defendants objected to consolidation, but the court
denied the motion. That trial (the Aoki trial) resulted in a colossal $502 million
verdict for the plaintiffs, which is the subject of two separate appeals currently
pending in this Court. Christopher v. Johnson & Johnson Svc, Inc., No. 16-11051;
Aoki v. Johnson & Johnson Svc, Inc., No. 17-10030.
10
D. The Third MDL Trial
When the MDL court asked the parties to suggest a new batch of cases for a
third trial, Defendants immediately moved to stay future trials pending this Courts
resolution of the second trials appeal. In their stay brief, Defendants explained that
[a]lthough [they] previously waived Lexecon for purposes of selecting prior
bellwether cases, they have never agreed to a blanket Lexecon waiver and do not
waive their venue objections with respect to forthcoming trials. MDL Dkt.657.
The MDL court denied the motion. See MDL Dkt.665.
In the meantime, the MDL court had ordered the parties to work up seven
cases for a September 2016 trial. MDL Dkt.660. After one case was dropped,
Defendants moved to dismiss the remaining six cases, all directly filed by California
plaintiffs, for lack of personal jurisdiction, arguing that the plaintiffs claims arose
in California and had no connection to Texas. ROA.17-10017.201. In response,
plaintiffs did not dispute that neither general nor specific jurisdiction was appropriate
in Texas; instead, they argued that their claims were sufficiently connected to
California. ROA.17-10017.22625. The MDL court denied the motion, ruling that
California is the relevant forum state for the personal jurisdiction analysiseven
though the trial was set to take place in the Northern District of Texasand that a
California court would have personal jurisdiction over the California plaintiffs
claims. ROA.17-10017.938-48.
11
The MDL court then sua sponte consolidated the six cases for a third trial; it
did so literally one day before jury selection. Defendants moved for reconsideration
(over plaintiffs opposition), and the district court denied the motion. ROA.17-
10017.3604.
The six plaintiffs were Marvin Andrews, Kathleen Davis, Rosa Metzler, Judith
Rodriguez, Linda Standerfer, and Michael Weiser (and four of their spouses). Each
had suffered from chronic hip pain for several years before receiving an Ultamet
implant. Each plaintiffs surgery was initially successful, with each experiencing
reduced pain and increased mobility. Several years later, however, the plaintiffs
began to experience pain or discomfort (the cause of which was sharply disputed at
trial), and each subsequently underwent revision surgery to replace their Ultamet
implants. All six plaintiffs have recovered extremely well from their revision
surgeries.
At trial, plaintiffs asserted twenty-seven causes of action against Defendants,
which fall into five general categories: design defect, failure-to-recall, failure-to-
warn, fraud, and dependent aiding-and-abetting or conspiracy claims. ROA.17-
10017.12191-252. After a trial rife with legal and evidentiary error, the jury returned
a verdict totaling $1.04 billion dollars, composed of just $362,000 in economic
damages, $32 million in non-economic damages, and $1.009 billion in punitive
damages. ROA.17-10017.12256-71. Instead of weighing the evidence to determine
12
the appropriate award in each of eight different categories of non-economic damages
carefully enumerated on the special verdict form, the jury rotely awarded the same
amounts to each Ultamet recipient on nearly every line (including to plaintiffs
spouses in two additional categories). The only distinction the jury drew was
between the four plaintiffs who received a unilateral hip implant and the two
plaintiffs who received bilateral hip implants; literally everything else (including
punitive damages) was identical, as the following table demonstrates:
Andrews Davis Metzler Weiser Rodriguez Standerfer

Non-Economic Damages Total $4,000,000 $4,000,000 $4,000,000 $4,000,000 $6,000,000 $6,000,000
Past Physical Pain and Loss of Enjoyment $500,000 $500,000 $500,000 $500,000 $750,000 $750,000
Future Physical Pain and Loss of Enjoyment $500,000 $500,000 $500,000 $500,000 $750,000 $750,000
Past Disfigurement $500,000 $500,000 $500,000 $500,000 $750,000 $750,000
Future Disfigurement $500,000 $500,000 $500,000 $500,000 $750,000 $750,000
Past Physical Impairment $500,000 $500,000 $500,000 $500,000 $750,000 $750,000
Future Physical Impairment $500,000 $500,000 $500,000 $500,000 $750,000 $750,000
Past Mental Suffering and Emotional Distress $500,000 $500,000 $500,000 $500,000 $750,000 $750,000
Future Mental Suffering and Emotional Distress $500,000 $500,000 $500,000 $500,000 $750,000 $750,000
Exemplary Damages Award $168,000,000 $168,000,000 $168,000,000 $168,000,000 $168,000,000 $168,000,000
From DePuy $84,000,000 $84,000,000 $84,000,000 $84,000,000 $84,000,000 $84,000,000
From J&J $84,000,000 $84,000,000 $84,000,000 $84,000,000 $84,000,000 $84,000,000
The district court sua sponte reduced the punitive damages award to $509
million (still an 18:1 ratio to non-economic compensatory damages and a 1400:1
ratio to economic compensatory damages) and entered final judgment in each
plaintiffs case. E.g., ROA.17-10017.12310. Plaintiffs did not seek reconsideration
or amendment of the district courts sua sponte order reducing punitive damages,
instead immediately filing notices of appeal. ROA.17-10017.12313. Defendants
timely filed post-trial motions for judgment as a matter of law and new trial,
13
including on the ground that the district court lacked personal jurisdiction to try the
case. ROA.17-10017.12500. The district court denied all post-trial motions, and
this appeal followed.
E. The Fourth MDL Trial and Mandamus Petition

The MDL court then issued an order selecting ten cases, all involving New
York plaintiffs, for a fourth trial beginning September 5, 2017. Defendants moved
to vacate that order and to dismiss the claims for lack of personal jurisdiction
arguing, among other things, that the New York plaintiffs claims did not arise from
or relate to any contacts with Texas, the forum state. The MDL court denied both
motions, ruling that even if Texas were the relevant state to analyze this Courts
personal jurisdiction for purposes of trial, Defendants objections would
nevertheless fail because Defendants globally waived any and all objections based
on venue to trying any of the cases in the MDL in this Court as part of any bellwether
trial, which waiver extended to personal jurisdiction. Order, No. 15-cv-3489 (N.D.
Tex. June 28, 2017), Dkt.23.
Defendants petitioned for a writ of mandamus, asking this Court to prevent
the district court from holding another trial absent personal jurisdiction. In response,
plaintiffs argued that Defendants had waived any such objections and that,
regardless, personal jurisdiction was appropriate. For the latter proposition,
plaintiffs advanced the same theory the district court had accepted in exercising
14
personal jurisdiction over the third trial: the New York plaintiffs cases should be
treated as if originally filed in New York, with the District Court having personal
jurisdiction to the same extent a New York court would have jurisdiction, and
plaintiffs claims had sufficient contacts with New York.
This Court agreed that the district court lacked personal jurisdiction to try the
New York cases. It expressly rejected plaintiffs waiver argument, holding that
Defendants limited their venue waivers to the first two bellwether trials and that
the MDL court erred by declaring that they had globally and permanently waived
their objections to venue and personal jurisdiction. In re Depuy Orthopaedics, Inc.,
2017 WL 3768923, at *4. And in her partial concurrence, Judge Jones noted that a
panel majority thus conclude[d] that the district court lacked jurisdiction over
both the California- and New York-plaintiff cases. Id. at *10 (Jones, J., concurring
in part and dissenting in part). As Judge Jones explained: But for the possibility of
a global waiver of personal jurisdiction, the Northern District had no claim to
personal jurisdiction over the cases: none of the plaintiffs surgeries occurred in
Texas; the plaintiffs arent Texas residents; and neither general nor specific
jurisdiction exists over the petitioners for purposes of these disputes. Id. at *8.
Having found personal jurisdiction lacking, the Court nevertheless declined
to issue the writ, but only because Defendants have the usual and adequate remedy
of ordinary appeal. Id. at *6. In fact, the panel continued, they have taken
15
advantage of that remedy by appealing the judgment in the third bellwether trial on
personal-jurisdiction grounds. Id. Accordingly, the Court request[ed] the district
court to vacate its ruling on waiver and to withdraw its order for a trial beginning
September 5, 2017. Id. at *1.
Plaintiffs petitioned for rehearing en banc and also sought to vacate the
mandamus panels opinion. This Court denied both requests. See Pet. For
Rehearing, In re DePuy Orthopaedics, Inc., No. 17-10812 (5th Cir. Sep. 1, 2017);
Order, No. 17-10812 (5th Cir. Sept. 19, 2017). The district court, meanwhile,
pressed ahead with the fourth trial notwithstanding this Courts entreaty. That trial,
consolidating the claims of six New York plaintiffs, is ongoing at the time of this
filing.
STANDARD OF REVIEW
This Court reviews the district courts exercise of personal jurisdiction de
novo. Clemens v. McNamee, 615 F.3d 374, 378 (5th Cir. 2010).
This Court reviews a district courts order consolidating cases or denying a
new trial for abuse of discretion. Olibas v. Barclay, 838 F.3d 442, 449 (5th Cir.
2016). A new trial is appropriate if the verdict is against the weight of the evidence,
the damages awarded are excessive, the trial was unfair, or prejudicial error was
committed in its course. Smith v. Transworld Drilling Co., 773 F.2d 610, 613 (5th
Cir. 1985).
16
This Court reviews the district courts ruling on a motion for judgment as a
matter of law de novo, applying the same standard as the district court. Nobach v.
Woodland Vill. Nursing Ctr., 799 F.3d 374, 377 (5th Cir. 2015).
SUMMARY OF ARGUMENT
I. The district court never had personal jurisdiction to entertain plaintiffs
claims, which have absolutely no connection to Texas. Plaintiffs live in California,
purchased their hip implants in California, suffered their alleged injuries in
California, and underwent their revision surgeries in California. Indeed, they have
never contended that either general or specific personal jurisdiction in Texas is
appropriate. The district court nevertheless exercised specific personal jurisdiction
not because of some connection between plaintiffs claims and Defendants conduct
in Texas, but rather because it assessed personal jurisdiction as if it were a California
court. As this Court recognized in its mandamus decision, that ruling was clearly
wrong. Personal jurisdiction is evaluated according to contacts with the actual forum
state, which is self-evidently Texas. Nothing pertaining to the MDL process alters
that straightforward application of constitutional due process principles. The
Courts prior decision is conclusive and plainly correct in all events.
II. Although this Court need go no further than the personal-jurisdiction issue,
numerous other errors below require reversal or vacatur. The district court sua
sponte consolidated the claims of six plaintiffs into a single unwieldy, confusing, and
17
prejudicial bellwether trial unfair to Defendants. The point of a bellwether process
is to produce reliable judgments that can help guide settlement discussions, but
consolidating multiple plaintiffs claims into one trial defeats that purpose.
Furthermore, here, individualized questions predominated over any purported
commonalities, as is frequently the case in product liability actions. Consolidation
prejudiced Defendants and confused the jury, which was unrealistically asked to
keep straight the claims of six different individuals with different medical histories,
different symptoms, different doctors, and different procedure dates spanning nearly
six years. Indeed, demonstrating that it was either unable or unwilling to distinguish
among the plaintiffs, the jury rotely awarded identical amounts across some forty
categories of the special verdict form after only one day of deliberation.
III. The trial itself was just as problematic, as the district court allowed
plaintiffs to run roughshod over the federal rules and, in the process, compromise
the fairness of the proceedings below. First, the district court permitted plaintiffs
star expert witness to testify at trial despite plaintiffs never even purporting to
produce an expert report that complied with Rule 26. Second, the district court
permitted plaintiffs to introduce and then repeatedly mischaracterize a Deferred
Prosecution Agreement and related civil settlement, which served only to inflame
the jury and portray Defendants as bad actors. Third, the district court exceeded the
scope of its subpoena power to compel two witnesses to testify by live video
18
transmission for the plaintiffs, and then improperly prohibited defendants from
playing the depositions of key defense witnesses who were unavailable to testify.
Each of these errors was deeply prejudicial to Defendants and requires a new trial.
IV. At the end of a fundamentally flawed trial, the district court erred yet
again by submitting plaintiffs claims to the jury. Their design-defect claims were
legally deficient because plaintiffs never identified any defect specific to the
Pinnacle Ultamet, instead attacking the entire category of metal-on-metal hip
implants in a manner foreclosed by state law and preempted by federal law.
Plaintiffs failure-to-recall claims fail for the simple reason that no such cause of
action exists under California law. And plaintiffs failure-to-warn and fraud claims
suffer from simple failure of proof, as plaintiffs failed to introduce evidence that
their surgeons relied on any allegedly false statements or would have acted
differently if given different warnings.
V. Even if the jurys liability findings somehow could stand, its damages
award must be vacated or remitted. The jury awarded just $362,000 in economic
damages, but $32 million in non-economic damagesincluding identical awards up
and down the verdict form across all eight categories of past and future damages,
despite substantially different circumstances and evidentiary presentations. Indeed,
each plaintiff received as much for future injury as for past injury despite each
testifying that his or her condition is much improved. The damages award is grossly
19
excessive and unsupported by the record, particularly regarding categories of
damages as to which plaintiffs presented no evidence at all.
VI. The jurys punitive damages award of over $1 billion is even more
problematic. The district court reduced that award to $509 million, but even half the
jurys grossly excessive verdict remains grossly excessive, as the 18:1 ratio of
remaining punitive damages to compensatory damages and 1400:1 ratio of
remaining punitive damages to economic harm amply attest. Indeed, the district
court appears to have intended to reduce the award to produce a 9:1 ratio, not an 18:1
ratio, but lost sight of the fact that the punitive award was per defendant and the
compensatory award was a combined total for the two defendants. As for plaintiffs
appeal from the district courts sua sponte reduction of punitive damages, that
argument was waived by plaintiffs failure to press it below, and in any event is
meritless. For all the same reasons that the $509 million punitive judgment is
factually and constitutionally excessive, so too was the jurys original $1 billion
award, and the district courts only error was in not reducing it further.
ARGUMENT
I. The District Court Did Not Have Personal Jurisdiction Over Defendants.
The district court plainly did not have personal jurisdiction to try these cases
against Defendants. This Court already so held in its mandamus decision. The Court
determined that Defendants had not waived their venue and personal-jurisdiction
20
objections for the third and fourth trials, deeming the district courts contrary ruling
grave error. In re Depuy Orthopaedics, Inc., 2017 WL 3768923, at *4. The Court
rejected the plaintiffs alternative argument that personal jurisdiction was
nonetheless appropriate because the Texas district court had personal jurisdiction
to the same extent a New York court would have jurisdiction, Response at 18, No.
17-10812 (5th Cir. Aug. 14, 2017)the same imaginative theory the district court
employed to exercise personal jurisdiction over the California plaintiffs in this case,
see ROA.17-10017.938-48. As Judge Jones noted in her separate opinion, a panel
majority concluded that the district court lacked jurisdiction over the California
and New York cases, because [b]ut for the possibility of a global waiver of
personal jurisdiction, the Northern District had no claim to personal jurisdiction over
the cases. In re Depuy Orthopaedics, Inc., 2017 WL 3768923, at *8, 10 (Jones, J.,
concurring in part and dissenting in part). The Court would have had no reason to
address (and reject) plaintiffs waiver argument if it believed the district court had
jurisdiction. Indeed, given Defendants burden to show a clear and indisputable
right to the writwhich, according to the Court, Defendants satisfied, 2017 WL
3768923, at *1the Court would not have addressed waiver if it even thought the
district court might have had jurisdiction under the fanciful theory that the Texas-
based district court could treat itself as a California court for purposes of personal
jurisdiction.
21
The Courts previous determination that the district court lacked personal
jurisdiction is controlling here. See Teague v. City of Flower Mound, 179 F.3d 377,
383 (5th Cir. 1999) ([T]he rule of orderliness forbids one of our panels from
overruling a prior panel.); cf. Fuhrman v. Dretke, 442 F.3d 893, 896 (5th Cir. 2006)
(stating that an issue of law or fact decided on appeal may not be reexamined by
the appellate court on a subsequent appeal).3 It is also patently correct. It is
undisputed that these California plaintiffs and their California claims have nothing
whatsoever to do with the forum state of Texas; plaintiffs argued below only that
they have sufficient contacts with California. ROA.17-10017.22625. That would
be relevant if the district court were a California court or this Court were the Ninth
Circuit. But neither is the case. The district courts unprecedented theory that it
was not in Texas anymore for personal jurisdiction purposes and could assert
jurisdiction by pretending to be located in California and thus looking to California
contacts is completely unmoored from law and logic.
A federal district court may assert personal jurisdiction over a defendant only
if the defendant would be subject to the jurisdiction of a court of general jurisdiction
in the state where the district court is located. Fed. R. Civ. P. 4(k)(1)(A) (emphasis
added). Thus, to evaluate whether personal jurisdiction is appropriate, a court must
3
Plaintiffs implicitly conceded the controlling nature of the mandamus decision
by filing a petition for rehearing en banc. See Pet. For Rehearing, No. 17-10812.
22
first determine whether the long-arm statute of the forum state confers personal
jurisdiction over the defendant, then determine whether exercise of such
jurisdiction by the forum state is consistent with due process. Stripling v. Jordan
Prod. Co., 234 F.3d 863, 869 (5th Cir. 2000) (emphases added). Here, the forum
statethe state where the district court [was] located and where a judge and jury
would adjudicate Plaintiffs claims against Defendantswas Texas. Accordingly,
the district court would have had personal jurisdiction to entertain these plaintiffs
claims only if the claims could have been heard in Texas state court. And [b]ecause
the Texas long-arm statute extends to the limits of federal due process, the relevant
inquiry is whether a Texas courts exercise of jurisdiction over Defendants with
respect to these plaintiffs claims would comport with the Due Process Clause.
Mullins v. TestAmerica, Inc., 564 F.3d 386, 398 (5th Cir. 2009).
In order for a court to exercise specific personal jurisdiction consistent with
the Due Process Clause, a lawsuit must arise of or relate to the defendants contacts
with the forum. Bristol-Myers Squibb Co. v. Superior Court of Cal., 137 S. Ct.
1773, 1780 (2017).4 In other words, in assessing personal jurisdiction, a district
4
Only specific personal jurisdiction is at issue here. It was undisputed below that
the district court did not have general personal jurisdiction over Defendants, neither
of which is incorporated or has its principal place of business in Texas (or California,
for that matter). See generally Bristol-Myers, 137 S. Ct. at 1779-80; ROA.17-
10017.938.
23
court sitting in Texas must ask whether the defendants suit-related conduct
create[d] a substantial connection with Texas. Walden v. Fiore, 134 S. Ct. 1115,
1121 (2014). Here, the answer to that question was obvious: the conduct giving rise
to plaintiffs claims had nothing to do with Texas. Plaintiffs do not live in Texas, nor
do they work in Texas. They were not treated, operated on, or injured in Texas. They
did not purchase the Ultamet in Texas, nor did they or their surgeons view any
advertising in Texas. There is quite literally no affiliation between the forum and
the underlying controversy in this case. Bristol-Myers, 137 S. Ct. at 1780. Because
all the conduct giving rise to [plaintiffs] claims occurred elsewherea point
plaintiffs have never disputedTexas courts cannot claim specific jurisdiction
over plaintiffs claims. Id. at 1782.
Indeed, the absence of a link between this lawsuit and Texas is analogous to
the lack of connection between the claims and the forum state in Bristol-Myersthe
Supreme Courts most recent admonition regarding personal jurisdiction. There,
hundreds of nonresident plaintiffs brought product-liability claims against a
healthcare company in California state court. Id. at 1777-78. The California
Supreme Court upheld the assertion of personal jurisdiction, but the U.S. Supreme
Court reversed. The nonresident plaintiffs were not prescribed Plavix in California,
did not purchase Plavix in California, did not ingest Plavix in California, and were
not injured by Plavix in California. Id. at 1781. Substitute Ultamet for Plavix and
24
Texas for California, and the Court could have been describing this case exactly.
Texas courtsincluding the district court heredo not have specific jurisdiction to
try plaintiffs claims against Defendants.5
In reaching a contrary holding, the district court first made the correct (but
irrelevant) observation that the substantive law of California applies to Plaintiffs
claims. ROA.17-10017.943. It then added the correct (but equally irrelevant)
observation that, for choice-of-law purposes, cases directly filed in an MDL are
treated as if they were transferred from a judicial district sitting in the state where
the case originated. ROA.17-10017.944. But then, in an unprecedented legal,
logical, and geographic non sequitur, the district court concluded that California is
the relevant state for the jurisdictional inquiry on these Plaintiffs cases. ROA.17-
10017.944. And based on these Defendants activities directed toward California,
5
To be sure, the district court, as an MDL court, had personal jurisdiction to
oversee transferred or direct-filed claims during pretrial proceedings. See In re FMC
Corp. Patent Litig., 422 F. Supp. 1163, 1165 (J.P.M.L. 1976). The MDL process
could not function otherwise. But in recognition of personal jurisdiction and venue
constraints, the MDL statute requires cases to be remanded by the panel at or before
the conclusion of such pretrial proceedings to the district from which it was
transferred. 28 U.S.C. 1407(a). Thus, absent waiver by the defendant, [a]n MDL
court cannot try a case that it would not be able to try without its MDL status.
In re Depuy Orthopaedics, Inc., 2017 WL 3768923, at *2; see FMC, 422 F. Supp. at
1165 (A transfer under Section 1407 is, in essence, a change of venue for pretrial
purposes. (emphasis added)); Lexecon, 523 U.S. at 37 (Section 1407 does not
imbu[e] transferred actions with some new and distinctive ... character).
25
the district court (still sitting in Texas) ruled that it had personal jurisdiction to try
plaintiffs claims. ROA.17-10017.947.
The district courts belief that, despite being firmly rooted in Texas, it could
pretend to be a California-based court and exercise personal jurisdiction to whatever
extent a California court could, sounds absurd, because it is. Sekhar v. United
States, 133 S. Ct. 2720, 2727 (2013). Personal jurisdiction is determined by
evaluating a defendants claim-related contacts with the forum state. Stripling,
234 F.3d at 869; Bristol-Myers, 137 S. Ct. at 1781 (specific jurisdiction requires an
affiliation between the forum and the underlying controversy). The forum state is
an actual, not a theoretical, construct. Personal jurisdiction is a distinctly territorial
concept, and so contacts with the forum state require just that: contacts with the
place the case is actually being adjudicated. The fact that a Texas court is being
asked to apply California law does not change the undeniable reality that the forum
state for a Texas court is Texas. It really is that simple.
In reaching its anomalous decision, the district court appeared to rely on its
administrative case management order permitting MDL plaintiffs to file directly in
the Northern District of Texas rather than filing elsewhere and waiting for transfer.
See ROA.17-10017.943; MDL Dkt.20. But that does not and cannot excuse the lack
of a connection between plaintiffs and the forum state. Indeed, the fact that
California plaintiffs filed directly in Texas just highlights the problem. The pretrial
26
order could not convert Texas into California or otherwise solve the jurisdictional
problem. Federal courts have no power to expand their own jurisdiction. See Point
Landing, Inc. v. Omni Capital Intl, Ltd., 795 F.2d 415, 423 (5th Cir. 1986) (en banc).
Furthermore, the direct-file order was by its terms expressly limited to pretrial
matters; it provided that each direct-file case must be transferred to a court of
appropriate jurisdiction for trial, and that direct filing shall not constitute a
determination by this Court that jurisdiction or venue is proper in this District.
MDL Dkt.20 at 5. In all events, whether a plaintiff filed directly in Texas or filed
elsewhere first does not change the personal-jurisdiction analysis, which
straightforwardly looks to the state where the district court is located. Fed. R. Civ.
P. 4(k)(1)(A); Stripling, 234 F.3d at 869. The district court cited no authority even
remotely suggesting otherwise; the single unpublished, trial-court decision on which
it principally relied addressed choice-of-law principles, not personal jurisdiction.
See ROA.17-10017.944 (citing In re Yasmin & Yaz (Drospirenone) Mktg., Sales
Practices & Prods. Liab. Litig., 2011 WL 1375011 (S.D. Ill. Apr. 12, 2011)).
It is both unsurprising and telling, then, that the district court abandoned its
extravagant theory when Defendants objected to personal jurisdiction for the fourth
trial. There, in evaluating whether it could try claims by New York plaintiffs
similarly lacking any connection to Texas, the district court gave a different answer,
ruling that even if Texas were the relevant state for evaluating personal
27
jurisdiction, Defendants globally waived all personal-jurisdiction objections by
waiving venue objections in the first two trials. Order, No. 15-cv-3489 (N.D. Tex.
June 28, 2017), Dkt.23.6 This Courts subsequent mandamus decision decisively
rejected that reasoning as grave error and patently erroneous, 2017 WL
3768923, at *4-5, and that holding was correct. As Defendants have thoroughly
explained, they agreed to Lexecon waivers only for the first and second bellwether
trials; they never waived personal jurisdiction or venue for the third (or fourth) trial;
before the third bellwether trial, they moved to dismiss plaintiffs claims for lack of
personal jurisdiction and entered a continuing objection on personal-jurisdiction
grounds; and they challenged personal jurisdiction again after trial. See Pet. for
Mandamus 5-12, 21-26, No. 17-10812; Pet. Reply 6-12, No. 17-10812; pp. 11-14,
supra. Nothing Defendants said or did comes close to showing any clear and
unambiguous waiver of personal jurisdiction or venue. 2017 WL 3768923, at *4;
see Armstrong v. LaSalle Bank Natl Assn, 552 F.3d 613, 615-19 (7th Cir. 2009).
Because the Texas-based district court had no personal jurisdiction to try
plaintiffs claimswhich indisputably arise solely out of conduct in and contacts
with Californiathe judgment below must be reversed.
6
The district court did employ its previous theory to explain why it had
jurisdiction over Defendants in pretrial proceedings. But in determining whether it
could exercise jurisdiction over [Defendants] for purposes of trial, the court relied
solely on waiver. Order, No. 15-cv-3489 (N.D. Tex. June 28, 2017), Dkt.23 at 19.
28
II. The District Court Abused Its Discretion By Sua Sponte Consolidating
Six Separate Cases For One Bellwether Trial.
In nearly every major MDL across the country that is currently utilizing, or
has utilized, a bellwether trial process, each bellwether trial has tested the claims of
a single plaintiff, allowing that individual trial to provide insights for a collective
resolution.7 Here, however, the day before the jury was selected, the district court
sua sponte consolidated the claims of six unrelated plaintiffs into one unwieldy
bellwether trial. That decision is an extreme outlier for a reason. At the
bellwether stage, the goal should be to achieve valid tests, not to achieve verdicts
as to large inventories of claims. Duke Law Center for Judicial Studies, Standards
and Best Practices for Large and Mass Tort MDLs at 29 (Dec. 19, 2014). Worse,
7
See, e.g., In re: Xarelto (Rivaroxaban), No. 14-md-2592 (E.D. La.), Dkt.3856
(selecting two plaintiffs for two bellwether trials); In re: Cook Medical, Inc., No. 14-
md-2570 (S.D. Ind.), Dkt.2107 (selecting three plaintiffs for three bellwether trials);
In re: Testosterone Replacement Therapy, No. 14-cv-1748 (N.D. Ill), Dkt.1787
(selecting seven plaintiffs for seven bellwether trials); In re: Fresenius
Granuflo/Naturalyte Dialysate, No. 13-md-2428 (D. Mass), Dkt.583 (Any cases
that are ultimately tried shall be tried individually, with a single Plaintiff per trial.);
In re: Propecia Finasteride, No. 12-md-2331 (E.D.N.Y.), Dkt.295-1 (The initial
bellwether trial will consist of one plaintiff.); In re: Zimmer NexGen Knee Implant,
No. 11-cv-5468 (N.D. Ill.), Dkt.1826 (selecting four plaintiffs for four bellwether
trials). The lone exceptions among MDLs with more than 750 plaintiffs are this
case, its predecessor (the Aoki case currently on appeal), and In re: Boston Scientific
Corp. Pelvic Repair System, No. 12-md-2326 (S.D. W. Va.). Appeals from two
separate consolidated trials in the Boston Scientific MDLboth of which seek
reversal on grounds of improper consolidationare currently pending. See
Campbell v. Boston Scientific Corp., No. 16-2279 (4th Cir.); Eghnayem v. BSX, No.
16-11818 (11th Cir.).
29
[c]onsolidation can tilt the playing field, undermining the goal of producing
representative verdicts. Id. That is exactly what happened here. Consolidating the
claims of six unrelated plaintiffs into one trial did not add any efficiencies that
consolidation of pretrial proceedings had not already secured; all it accomplished
was to prejudice the Defendants and overwhelm the jury, as is clear from the jurys
award of identical (and massive) amounts to nearly every plaintiff on nearly every
line of the special verdict form.
The district courts consolidation decision was an abuse of discretion.
Although a district court may consolidate cases for trial if they involve a common
question of law or fact, Fed. R. Civ. P. 42(a), the existence of a common question
is only a necessary condition for consolidation, not a sufficient one. Even in cases
with common questions, the trial judge should be most cautious to ensure that the
rights of the parties are not prejudiced by the order of consolidation under the facts
and circumstances of the particular case. Dupont v. S. Pac. Co., 366 F.2d 193, 196
(5th Cir. 1966); see Manual for Complex Litigation, supra at 22.32. Where, as
here, consolidation results in prejudice to rights of the parties, a consolidation
order constitutes an abuse of discretion and is reversible error. Dupont, 366 F.2d
at 196 (collecting cases); see also In re Repetitive Stress Injury Litig., 11 F.3d 368,
373 (2d Cir. 1993).
30
A. Consolidation of the Trials Did Not Provide Any Benefit Not

Already Secured by Consolidation of Pretrial Proceedings.
There was never any good reason to consolidate these trials. The parties have
embraced two procedural mechanisms to facilitate efficient resolution of the 9,300-
odd cases in this MDL. First, the Judicial Panel on Multidistrict Litigation ordered
consolidated pretrial proceedings to eliminate duplicative discovery, prevent
inconsistent pretrial rulings on discovery and other issues, and conserve the
resources of the parties, their counsel and the judiciary. In re DePuy Orthopaedics,
Inc., Pinnacle Hip Implant Prod. Liab. Litig., 787 F. Supp. 2d 1358, 1360 (J.P.M.L.
2011). Second, the parties agreed to a bellwether trial protocol, under which
bellwether cases would be selected and tried, with the verdicts providing information
on the value of the remaining cases and helping the parties work toward global
resolution. See generally In re Chevron U.S.A., Inc., 109 F.3d 1016, 1019-21 (5th
Cir. 1997). With those two procedures in place, the task of resolving 9,300 cases
became manageable: The consolidated pretrial proceedings would avoid duplicative
discovery, and the bellwether trials would provide metrics for possible resolution.
Consolidating multiple cases for trial (as opposed to pretrial proceedings)
offered no additional efficiencies. Because no one realistically expects to hold 9,300
(or even 930) individual trials, the quantity of claims each trial resolves is far less
important than the quality and reliability of the result. Indeed, the whole point of a
bellwether process is to derive knowledge from evaluations of the litigation by
31
multiple juries. Hon. Eldon E. Fallon, Bellwether Trials in Multidistrict Litigation,
82 Tulane L. Rev. 2323, 2325 (2008) (emphasis added). No matter how many
plaintiffs are clumped together into one trial, that trials result provides just one
jurys view of the factsand not even a very clear one if varying cases are
consolidated. That is why the bellwether trials in ongoing MDLs across the country
involve the claims of individual plaintiffs, not unwieldy groups of them. See n.7,
supra.
The district courts only rationale for consolidation (decided without the
benefit of briefing) was the existence of supposedly common questionse.g., that
each plaintiff was provided with similar warnings or experienced similar
implantation procedures. ROA.17-10017.968-69. But the purported
commonalities to which the district court referred are illusory and, at best, provide
only scant justification for consolidation. As the district courts use of the word
similar (not same) indicates, plaintiffs injuries and experiences were far from
identical: The six plaintiffs had six different medical histories, six different implant
dates, six different surgeons, six different sets of symptoms, and six different
revision dates. Because of those differences, each plaintiff had to make a separate
evidentiary showing to prove his or her claims, thereby eliminating any
contemplated efficiencies. For example, to prove the causation and reliance
elements of their failure-to-warn and fraud claims, each plaintiff had to call his or
32
her own surgeon to the stand so that each could explain why he chose the Ultamet
and answer whether he would have acted differently if DePuy had provided different
warnings. Other individualized issuesspecific causation, injury, damages,
warnings, physicians knowledge, Defendants knowledge at the time relevant to
each plaintiff, and moreall predominated over the few common questions. See
ROA.17-10017.41056-68. Indeed, the predominance of individualized issues is
precisely why product liability actions like this one have historically been a poor
fit for class certification under Rule 23. Castano v. Am. Tobacco Co., 84 F.3d 734,
746 (5th Cir. 1996); see also Manual for Complex Litigation, supra at 22.7 (Mass
tort personal injury cases are rarely appropriate for class certification for trial.).
Instead, the MDL process is used, wherein cases are collectively grouped for pretrial
purposes butin recognition of the numerous material issues that distinguish each
plaintifftried on an individual basis.
B. Consolidation Confused the Jury and Prejudiced Defendants.
While consolidation of six cases into one bellwether trial did not offer any
material benefitsas to either the trial specifically or the MDL more broadlyit did
very much confuse the jury and prejudice the Defendants. A jury verdict tainted by
confusion is easy to spot: A jury overwhelmed by the task of assimilat[ing] vast
amounts of information about different plaintiffs with different medical histories
and different injuries will predictably throw[] up its hands, give up on its assigned
33
task, and just award each plaintiff the same amount of money. Malcolm v. Natl
Gypsum Co., 995 F.2d 346, 350, 352 (2d Cir. 1993). Thus, the telltale signs of a
confused jury are short deliberation time, identical damages awarded, and a
lack of evidence supporting some of the damages. Cain v. Armstrong World
Indus., 785 F. Supp. 1448, 1455 (S.D. Ala. 1992).
That describes this case to a tee: After a two-month-long trial, the jury
deliberated for less than a dayhardly enough time to work through an 82-page
verdict form including twenty-seven causes of action and eight categories of
compensatory damages for six plaintiffs (plus four spouses). Then, it just wrote the
same amounts on every line of the verdict form. It awarded Andrews, Davis,
Metzler, and Weiser exactly $500,000 each for past physical pain, exactly $500,000
each for future physical pain, exactly $500,000 each for past disfigurement, exactly
$500,000 each for future disfigurement, and so on down the line for past physical
impairment, future physical impairment, past mental suffering, and future mental
suffering. The jury then awarded their respective spouses exactly $500,000 each for
past loss of consortium and $500,000 each for future loss of consortium. The only
distinction the jury drew was between those four plaintiffs who received a unilateral
hip implant and the two who received bilateral implants, awarding the latter two
34
exactly $750,000 in every damages category, despite the vast differences between
those two plaintiffs and among their evidentiary showings in each category.8
The notion that each plaintiff suffered exactly the same amount of damages in
every category is fanciful. Plaintiffs substantially different circumstances should
have led to substantial differences in compensatory damagesplaintiffs were
different ages, claimed to have experienced different complications and injuries for
different lengths of time, and testified to varying levels of continued impairment.
Compare, e.g., ROA.17-10017.17336 (Weiser testifying that his hip doesnt hurt
anymore), with ROA.17-10017.17042 (Davis testifying that sometimes I cant
sleep on my left side). The identical damages awards show that the jury simply
thr[ew] up its hands in the face of a multiplicity of evidence about different
plaintiffs, different theories, different doctors, and different circumstances.
Malcolm, 995 F.2d at 352.
Consolidation did not only confuse the jury; it also prejudiced Defendants.
The mere fact that six plaintiffs were before the jury claiming injury from the same
device made the existence of a defect appear far more likely than it would in a single-
plaintiff case. See In re Van Waters & Rogers, Inc., 145 S.W.3d 203, 211 (Tex. 2004)
(Consolidation risks the jury finding against a defendant based on sheer numbers.).
8
The jury awarded different amounts to each plaintiff for past medical
expenses, but those amounts were stipulated.
35
The reason for that is simple: In a single-plaintiff case, the defendant has a fighting
chance to show that the plaintiffs injury was caused by an idiosyncratic reaction
rather than a product defecthere, for example, that Andrews device was implanted
at the wrong angle, or that Metzlers liner was not properly inserted in the cup. But
juries inevitably become skeptical of those defenses when defendants are forced to
argue that six plaintiffs with little in common other than their use of the product
experienced six different idiosyncratic reactions.9
This litigation proves the point: The first bellwether trial presented the claims
of a single plaintiff, and the jury determined that the Ultamet was not defective. See
p. 10, supra. The next two trialsinvolving the exact same device, but with
consolidated groups of five and six plaintiffs, respectivelyresulted in plaintiffs
verdicts exceeding $1.5 billion. And this litigation is not idiosyncratic in that
respect: A study of asbestos litigation found that [w]hen four or five plaintiffs
cases are consolidated, each plaintiffs probability of winning rises by eleven
percentage points compared to the results in independent trials. Michelle J. White,
Why the Asbestos Genie Wont Stay in the Bankruptcy Bottle, 70 U. Cin. L. Rev.
1319, 1338 (2002). Indeed, plaintiffs own counsel has admitted that consolidation
9
Below, Defendants filed a declaration exhaustively describing the prejudicial
effects of consolidation and concluding that consolidation here would be highly
prejudicial to Defendants. ROA.17-10017.41830-69. Plaintiffs submitted no
contrary evidence.
36
prejudices Defendants: One of the arguments the defendants like to make in these
cases is that this is the one rare exception. But when youve got five or 10, and you
have to find some bizarre reason for each one, it belies credibility with the jury.
Amanda Bronstad, Consolidated Trials Drawing Fire From Defense as Unfair, Natl
Law Journal (July 25, 2017), http://bit.ly/2wSosfc.10
Consolidation of these cases further prejudiced Defendants by allowing
plaintiffs to infect the jurys consideration of one plaintiffs claims with evidence
admissible only as to a different plaintiffs claims. See Janssen Pharmaceutica, Inc.
v. Armond, 866 So. 2d 1092, 1101 (Miss. 2004) (consolidation can make it
impossible for the jury to limit the evidence to the appropriate plaintiff). For
example, plaintiffs counsel made effective use of a vulgar email exchange between
two DePuy employees discussing the aSphere femoral head, a component that only
one plaintiff (Davis) received. See, e.g., ROA.17-10017.13461-68. That email,
which should have been excluded in any event, undoubtedly would have been
inadmissible (under Rules 402 and 403) in individual trials for the five plaintiffs who
did not receive the aSphere head. See ROA.17-10017.13468-69. But because these
cases were consolidated, the jury was exposed to the inflammatory email during trial,
10
While the district court sua sponte consolidated the cases for trial, plaintiffs
vigorously (and successfully) opposed Defendants motion for reconsideration.
ROA.17-10017.1367.
37
ROA.17-10017.13461-62, and then was reminded of it during closing argument,
right before it began deliberations on all six plaintiffs claims, ROA.17-
10017.20972. There is no denying the resulting prejudice: The jury specifically
requested that email exhibitand only that exhibitduring its brief deliberations,
ROA.17-10017.21133, then returned an enormous verdict that treated Davis the
same as all other plaintiffs.
Consolidating these six cases was unnecessary (given the MDL posture),
unwarranted (given the numerous individualized issues), and unfair (given the
realized risk of confusion and prejudice). The district courts consolidation order
was an abuse of discretion, warranting vacatur of the judgment below.
III. Defendants Are Entitled To A New Trial In Light Of The District Courts
Erroneous Evidentiary And Testimonial Rulings.
A. The District Court Erred by Allowing Dr. Bernard Morrey to

Testify Without Providing a Proper Expert Report.
The district court allowed plaintiffs star expert witness, Dr. Bernard Morrey,
to testify at trial despite plaintiffs unexplained refusal to produce a proper expert
report. Dr. Morrey then offered a slew of previously undisclosed expert opinions
about critical issues in the case, including the Ultamets allegedly unsafe design,
Defendants allegedly inadequate warnings, Defendants allegedly improper
marketing, and Defendants allegedly inappropriate use of the FDA approval
process. Unable to effectively cross-examine Dr. Morrey on these topics or secure
38
experts given the lack of advance notice, Defendants repeatedly objected, but the
district court refused to enforce the Federal Rules or place any reasonable limitations
on Dr. Morreys testimony. Given Dr. Morreys centrality to plaintiffs case, the
district courts inexplicable errors require a new trial.
Federal Rule of Civil Procedure 26(a)(2) requires all witnesses who are
specially employed to provide expert testimony to submit an expert report. That
report must contain, among other things, a complete statement of the experts
opinions, the factual basis for those opinions, a list of recent cases in which the expert
has testified, and a statement of compensation. Fed. R. Civ. P. 26(a)(2). If a party
fails to comply with Rule 26, the party is not allowed to use that witness at trial
unless it can show that its failure was substantially justified or is harmless. Fed.
R. Civ. P. 37(c)(1); See Harmon v. Ga. Gulf Lake Charles LLC, 476 F. Appx 31, 36
(5th Cir. 2012).
The story of plaintiffs refusal to comply with Rule 26 began at the second
MDL trial (Aoki). Before that trial, plaintiffs listed Dr. Morrey as a non-retained
expert, which is a designation for a witness with direct knowledge of the facts, like
a plaintiffs treating physician, who is not required to prepare an expert report. See
Fed. R. Civ. P. 26(a)(2) advisory committees note to 1993 amendment. But because
Dr. Morrey was not a treating physician for the Aoki plaintiffs, Defendants objected
to the improper designation and to Dr. Morreys failure to provide a report. The
39
district court took a compromise position: It allowed Dr. Morrey to testify, but
ordered him to provide a report before the end of trial. Dr. Morrey testified, but the
only report plaintiffs ever produced was a bullet-point summary of that testimony,
ROA.17-10017.11756-70, which did not even purport to comply with Rule 26.
Before the trial in this case, plaintiffs correctly designated Dr. Morrey as a
retained expert in the fields of medicine and orthopedic surgery, ROA.17-
10017.48212-13, but again refused to produce a proper expert report. Instead,
plaintiffs produced the same bullet-point report summarizing Dr. Morreys
testimony from the previous trial. After Dr. Morrey testified at his deposition that
he had not reviewed the document and could not say whether it accurately
summarized his opinions, ROA.17-10017.48229-31, Defendants moved to bar him
from testifying. ROA.17-10017.37635. The district court initially ordered Dr.
Morrey to produce a report, ROA.17-10017.3598-99, but then inexplicably
capitulated at trial, declaring that the manifestly insufficient bullet-point summary
was good enough: I think he did comply with providing that report. If he says its
the same report, it is the same report. So, it is what it is. ROA.17-10017.14900.
By allowing plaintiffs to flout the Federal Rules, the district court committed
reversible error. Dr. Morreys sham report flunked five of Rule 26s six
substantive requirementsit did not include a complete statement of all opinions
that Dr. Morrey presented at trial; did not disclose the facts or data he considered in
40
forming his opinions; did not include the exhibits he intended to use at trial; did not
include other cases in which he testified; and did not include a statement of
compensation. See Fed. R. Civ. P. 26(a)(2)(B)(ii)-(vi); ROA.17-10017.11756-70.11
And on top of all that, Dr. Morrey admitted that he did not create (or even review)
the so-called report, in direct violation of Rule 26(a)(2)(B), which requires that the
report be prepared and signed by the witness.
Plaintiffs blatant failure to comply with Rule 26 was not substantially
justified. Fed. R. Civ. P. 37(c)(1). Nothing but plaintiffs own recalcitrance
prevented them from filing a proper expert report; they simply refused to follow the
rules, correctly calculating that if they refused to comply, they could get away with
the obviously insufficient report. There is no justification, let alone a substantial
one, for that calculated disregard of the Rules.
Nor was plaintiffs conduct harmless. Id. Quite the contrary. By submitting
only a sham report, plaintiffs deprived Defendants of a reasonable opportunity to
prepare for effective cross examination and arrange for expert testimony from
11
The absence of a statement of compensation is particularly problematic.
During the Aoki trial, plaintiffs counsel repeatedly told the court and jury that Dr.
Morrey was not receiving any compensation, but later-produced documents revealed
that counsel in fact agreed to donate $10,000 to a charity of Dr. Morreys choosing,
and later sent him a check for another $35,000. After those payments came to light,
Defendants moved for new trial under Rule 60(b)(3); an appeal from the denial of
that motion is pending. Aoki v. Johnson & Johnson Svc, Inc., No. 17-10030.
41
other witnessesthe very purpose underlying Rule 26(a)(2). Fed. R. Civ. P.
26(a)(2) advisory committees note to 1993 amendment. At trial, Dr. Morrey offered
numerous previously undisclosed expert opinions that he had not offered during the
Aoki trial and that were not mentioned in his report. For example, until Dr. Morrey
testified in this case, Defendants were entirely unaware that he had formed expert
opinions about Defendants marketing of the Ultamet. That left Defendants
unprepared to respond to his testimony that certain marketing statements were
deceiving or deceptive, ROA.17-10017.14974, ROA.17-10017.14976; that the
Technical Monograph was an example of where marketing starts blurring with
science, ROA.17-10017.18880; and that DePuy was negligent in marketing the
Ultamet, ROA.17-10017.15115.12 Dr. Morrey also offered previously undisclosed
expert opinions about several other topics, including that: (1) DePuy fail[ed] to
use the amount of care that one would expect in designing the product, ROA.17-
10017.18566; (2) DePuys use of the FDAs 510(k) process was not
appropriate, ROA.17-10017.18894, (3) the warnings in the Ultamets Technical
Monograph were less than complete, ROA.17-10017.18888; and (4) aspects of a
12
Defendants objected to Dr. Morreys testimony and moved for a mistrial
because of its admission, ROA.17-10017.14955, ROA.17-10017.14958,
ROA.17-10017.14960, ROA.17-10017.14965, ROA.17-10017.14984;
ROA.17-10017.15113, ROA.17-10017.18565, ROA.17-10017.18566,
ROA.17-10017.18567, ROA.17-10017.48172.
42
study of metal-on-metal implants were not accepted clinical investigative practice
and were inappropriate from a medical ethics perspective, ROA.17-10017.14955-
56, ROA.17-10017.14964.
Because plaintiffs refused to produce an expert report disclosing these critical
opinions before Dr. Morrey offered them to the jury at trial, Defendants were unable
to effectively test[] Dr. Morreys opinions in the crucible of cross-examination,
Crawford v. Washington, 541 U.S. 36, 61 (2004), which the Supreme Court has
repeatedly described as the greatest legal engine ever invented for the discovery
of truth, Kentucky v. Stincer, 482 U.S. 730, 736 (1987); see also Davis v. Alaska,
415 U.S. 308, 316 (1974) (Cross-examination is the principal means by which the
believability of a witness and the truth of his testimony are tested.).13 Defendants
were also unable to secure rebuttal experts to refute these previously undisclosed
opinions. In short, Defendants were subjected to the exact prejudice that Rule 26 is
designed to prevent, and by allowing Dr. Morrey to testify on those topicsindeed,
by letting him testify at allthe district court abused its discretion.
13
Although Defendants deposed Dr. Morrey, they did so without knowing the full
range and scope of opinions he intended to offer at trial, which entirely defeated the
purpose of an expert deposition. Indeed, disclosure of an expert report is so essential
to ensuring meaningful depositions that Federal Rule of Civil Procedure 26(b)(4)(A)
generally prohibits expert depositions unless the report has been served.
43
B. The District Court Erred by Allowing Plaintiffs to Introduce the

Deferred Prosecution Agreement and Civil Settlement.
The district court also erred by allowing plaintiffs to introduce into evidence
both a 2007 Deferred Prosecution Agreement (DPA) between DePuy and the
federal government and a related civil settlement. See ROA.17-10017.3993;
ROA.17-10017.3620. The DPA resolved allegations that DePuy entered into
consulting agreements with certain surgeonsnone of whom were plaintiffs
surgeonsto induce them to use DePuys products; the civil settlement resolved
claims arising from the governments use of DePuys products. Though the conduct
alleged in these documents was never proved, had nothing to do with these plaintiffs
or their treatment, and did not relate specifically to the Ultamet, the court allowed
plaintiffs counsel to repeatedly inflame the jury by accusing DePuy of making
outrageous bribes to doctors, and asserting that DePuy got hit for an $84
million dollar payment under the anti-kickback laws. ROA.17-10017.20968,
ROA.17-10017.21075. The prejudicial impact of this evidence was unmistakable:
The jury awarded each plaintiff $84 million in punitive damages against each
defendanti.e., the exact amount DePuy agreed to pay in the civil settlement, which
plaintiffs counsel referenced five times during closing argument.14
14
Defendants moved to exclude the DPA and settlement agreement from
evidence, ROA.17-10017.3608, repeatedly objected during trial, ROA.17-
10017.13278-85, ROA.17-10017.13436-39, ROA.17-10017.13446, and moved for
a new trial because of their improper admission, ROA.17-10017.12336-37.
44
The prejudicial DPA and civil settlement agreement were inadmissible on
multiple grounds, but perhaps most obviously under Rule 404(b), which prohibits
generalizing a defendants earlier bad act into bad character and taking that as
raising the odds that he did the later bad act now charged. Old Chief v. United
States, 519 U.S. 172, 180 (1997); see Fed. R. Evid. 404(b). The alleged conduct
underlying the DPA and civil settlement had nothing to do with any of the plaintiffs
or their surgeons; plaintiffs have never claimed that any of their surgeons received
payments from DePuy, much less any payments that caused them to choose the
Ultamet. The sole reason that plaintiffs introduced them was to make Defendants
look like bad actorsi.e., to suggest that Defendants were more likely to have acted
improperly in designing and marketing the Ultamet because they were accused of
violating federal laws. But Rule 404(b) does not permit the introduction of
evidence for that purpose. Contogouris v. Pac. W. Res., L.L.C., 551 F. Appx 727,
734 (5th Cir. 2013).
The DPA and civil settlement are also inadmissible under Rules 402 and 403
as irrelevant and unfairly prejudicial. As discussed, the conduct alleged in the DPA
had no connection to these plaintiffs or their surgeons, and plaintiffs have never
explained how allegations that DePuy paid other surgeons to use the Ultamet has
any bearing on whether the Ultamet was defectively designed or defectively
marketed to these plaintiffs surgeons, or on whether these patients or surgeons were
45
defrauded.15 Any de minimis relevance, moreover, is outweighed by the
overwhelming possibility of prejudice, as the jury could easily misinterpret the DPA
as an admission of wrongdoing and punish Defendants for conduct unrelated to
plaintiffs causes of action. See Stockman v. Oakcrest Dental Ctr., P.C., 480 F.3d
791, 799-800 (6th Cir. 2007). Indeed, the risk of such misinterpretation was
heightened further here, because plaintiffs counsel mischaracterized the civil
settlements meaning and legal effect by referring to it as a fine. ROA.17-
10017.13436. The jury clearly took that mischaracterization to heart, awarding
punitive damages to each plaintiff in the exact amount of the alleged fine.
The DPA and civil settlement are also inadmissible under Rule 408, which
excludes evidence of conduct or statements made in compromise negotiations
regarding a disputed claim. Rule 408 exists to encourage the voluntary settlement
of disputes, which would be discouraged if evidence of compromise were later used
in court. Lyondell Chem. Co. v. Occidental Chem. Corp., 608 F.3d 284, 294-95 (5th
Cir. 2010). This Court has found reversible error when a district court has admitted
the content of a settlement agreement for the jurys consideration. Latiolais v.
Cravins, 574 F. Appx 429, 435 (5th Cir. 2014). Deferred prosecution agreements
15
The independent monitor appointed under the DPA found nothing wrong with
retaining surgeons as consultants to promote products to other surgeons. ROA.17-
10017.19458-76.
46
and civil settlements are paradigmatic examples of compromises whose admission
is barred by Rule 408. See United States v. Fokker Servs. B.V., 818 F.3d 733, 746
(D.C. Cir. 2016).
Finally, the district court erred by allowing plaintiffs counsel to read into the
record the probable cause affidavit attached to the DPA. ROA.17-10017.13439-40;
see ROA.17-10017.4018 (Affidavit). The deeply prejudicial affidavit is
undoubtedly hearsay; it contains unproven factual allegations by a law enforcement
officer who did not appear in court to testify. Yet when Defendants objected on
hearsay grounds, the district court overruled the objection without explanation.
ROA.17-10017.13285, ROA.17-10017.13439.
C. The District Court Exceeded Its Subpoena Power and Improperly

Compelled Witnesses to Testify by Live Video Transmission.
The district court openly ignored Federal Rule of Civil Procedure 45(c)s
geographic limitations on its subpoena power, improperly interpreting Rule 43(a)s
narrow authorization of live video testimony as a loophole that allowed it to compel
testimony from witnesses anywhere in the country. That rulingentered at the
urging of plaintiffs who were dissatisfied with the video depositions they originally
intended to play at trialwas a blatant abuse of discretion prejudicial to Defendants.
As Judge Jolly recognized when Defendants sought an earlier writ of mandamus, the
district court misapplied Rules 43(a) and 45(c), Amended Court Order, In re:
47
DePuy Orthopaedics, Inc., No. 16-11419 (Jolly, J., concurring in denial of petition),
with the benefit of that error redounding solely to the plaintiffs.
The Federal Rules geographically limit the district courts power to compel
witnesses to appear at trial. Specifically, district courts may compel live testimony
only from nonparty witnesses who live or work within 100 miles of the courtroom,
or from party witnesses who live in the same state as the courtroom (which, needless
to say, remains Texas). Fed. R. Civ. P. 45(c). When witnesses reside outside that
range, the district court is powerless, and the superior means of presenting their
testimony is with video depositions. Fed. R. Civ. P. 43(a) advisory committees
note to 1996 amendment. Consistent with that understanding, when plaintiffs
deposed Dr. Pamela Plouhar, the worldwide vice president of clinical research for
DePuy Synthes, and Dr. Thomas Schmalzreid, a surgeon who assisted in designing
the Ultametboth of whom resided outside of Texas and whom plaintiffs intended
to call as witnessesthey sent their lead counsel to conduct videotaped depositions
in the style of actual cross-examination, right down to repeated references to the
jury. See, e.g., ROA.17-10017.31503 (Q. Can you explain to the jury what those
were, please?).
Plaintiffs apparently did not like how those depositions turned out.
Accordingly, they asked the district court to set aside the videotapes and issue a
blanket ruling allowing them to compel live trial testimony via contemporaneous
48
transmission from locations outside Texas for any witness that cannot otherwise
be compelled to attend trial. ROA.17-10017.440. The district court obliged,
ignoring the geographic limits on its subpoena power and allowing plaintiffs to
compel testimony from Drs. Plouhar and Schmalzried. ROA.17-10017.961.16
The district courts ruling was an abuse of discretion, simultaneously violating
Rules 43(a) and 45(c). The district court reasoned that it could ignore Rule 45(c)s
geographic limits by invoking Rule 43(a), which authorizes testimony in open court
by contemporaneous transmission for good cause in compelling circumstances.
Rule 43(a), however, does not operate to extend the range or requirements of a
subpoena, Ping-Kuo Lin v. Horan Capital Mgmt. LLC, 2014 WL 3974585, at *1
(S.D.N.Y. Aug. 13, 2014), and does not provide a backdoor means of presenting
testimony from an unwilling witness outside subpoena range, Rheumatology
Diagnostics Lab., Inc. v. Aetna, Inc., 2015 U.S. Dist. LEXIS 92776, at *20-21 (N.D.
Cal. July 16, 2015).
Instead, Rule 43(a) applies only to witnesses willing to testify or within the
range of the courts subpoena power, but who for some compelling reason cannot
16
After the district court ordered her to testify, Dr. Plouhar decided to appear in-
person instead of testifying remotely, because it was very upsetting to her that she
would not have been able to see the jury while testifying by video. ROA.17-
10017.14100. That she opted for the lesser of two evils does not cure the error, as
the record is clear that she would not have testified at all had the district court not
exceeded its subpoena power.
49
make it to the courthouse that day. See Parkhurst v. Belt, 567 F.3d 995, 1003 (8th
Cir. 2009) (approving video transmission to protect the welfare of an abused
child). If it were otherwise, the geographic limits on the subpoena power would be
meaningless, as district courts could compel any witness, anywhere in the country,
to testify by contemporaneous video transmission. That would make no sense, and
it would be extremely burdensome to companies whose employees around the
country could be forced to testify at any plaintiffs request.
In all events, even if Rule 43(a) really were a loophole around Rule 45(c)s
limitations on subpoenas, plaintiffs did not come close to satisfying its good cause
in compelling circumstances standard. That exacting standard is satisfied only by
extraordinary circumstances or unforeseen emergencies, like when a witness would
be endangered by appearing at trial or cannot appear because of accident or
illness. Eller v. Trans Union, LLC, 739 F.3d 467, 478 (10th Cir. 2013). It is not
satisfied when the moving party could reasonably foresee the circumstances offered
to justify transmission of testimony. Fed R. Civ. P. 43(a) advisory committees note
to 1996 amendment. Here, there was not a single witness whose absence was
unexpected or for whom an exigency justified resort to Rule 43(a). Nor did the
district court identify any such exigency; its blanket order does not identify a single
witness, much less analyze whether the circumstances surrounding any witnesss
absence were compelling. ROA.17-10017.961-65.
50
The district courts misapplication of Rule 43 was no mere foot fault. In
addition to the unwarranted burdens placed on Drs. Plouhar and Schmalzriedboth
of whom were forced to testify against their will, and could be forced to do so again
in future trialsthe district courts error created a fundamentally unfair two-bites-
at-the-apple rule for plaintiffs: If they were satisfied with how their depositions
turned out, they were free to use those depositions at trial, but if not, they could try
to extract another concession or two from the witnesses by compelling them to
testify.
Making matters worse, the district court then turned its erroneous
interpretation around on Defendants, ruling that they were required to use
contemporaneous transmission and forbidden from using video depositions.
Defendants sought to play depositions of five witnesses residing more than 100 miles
from the courtroom, but the Court ruled that none of them were unavailable, as
required by Fed. R. Civ. P. 32(a)(4), in part because they could be called to testify
via contemporaneous satellite transmission. ROA.17-10017.7917. One of those
five witnesses was Dr. Graham Isaac, an employee of a non-party DePuy entity and
the author of a memoreferred to by plaintiffs as the End Game Memo
expressing his early concerns about metal-on-metal implants. Plaintiffs counsel
referred to this End Game Memo almost every day during the trial, e.g., ROA.17-
10017.20965, but the district court refused to allow Defendants to respond by
51
playing Dr. Isaacs deposition testimony, in which Dr. Isaac explained why the memo
was not the bombshell that plaintiffs counsel made it out to be. The district courts
misapplication of the federal rules thus prevented Defendants from effectively
rebutting one of plaintiffs key pieces of evidence in the case.
IV. DePuy And J&J Are Entitled To Judgment As A Matter Of Law On All
Claims.
A. Plaintiffs Design-Defect Claims Fail as a Matter of Law.
1. Plaintiffs theory of categorical defect is not viable under

California law.
A plaintiff seeking to impose liability for a design defect must prove that
there was a design defect. Pooshs v. Phillip Morris USA, Inc., 904 F. Supp. 2d
1009, 1024-25 (N.D. Cal. 2012). Here, plaintiffs never identified any defect specific
to the Pinnacle Ultametthey did not claim that the Ultamet should have been
shaped differently, sized differently, made of a different metal alloy, or altered in
some other detail. Instead, their position is that all metal-on-metal hip implants are
categorically defective. This theory of negligent design is not viable, for two
reasons: (1) California law does not recognize categorical attacks on inherent
features of products; and (2) Defendants offered the supposedly safer product to
each plaintiffs surgeon.
Under California law, a design-defect claim is viable only when aimed at a
design decision specific to the defendants iteration of the product type; a design-
52
defect claim cannot attack an inherent feature common to all products within a
category. Id. at 1025. As the Restatement explains, courts have not imposed
liability for categories of products even if they pose substantial risks of harm.
Restatement (Third) of Torts: Product Liability 2 cmt. d (1998). Instead,
legislatures and administrative agencies can, more appropriately than courts,
consider the desirability of commercial distribution of some categories of widely
used and consumed, but nevertheless dangerous, products. Id. Thus, in California,
an injured plaintiff has always had the burden to prove [t]he reasonableness of
alternative designs that would provide the same benefits but reduce the risks created
by the alleged defect. Baker v. Chrysler Corp., 55 Cal. App. 3d 710, 716 (1976).
In Pooshs, for example, the district court rejected plaintiffs claim that
cigarettes are defective, explaining that even though all cigarettes may be
considered generally harmful, the plaintiff had not shown that it was the particular
design of defendants cigarettes that caused her lung cancer. 904 F. Supp. 2d at
1025. Her undifferentiated attack on an inherent feature of cigarettes therefore
failed to establish a design defect under California law. Similarly, in ONeil v. Crane
Co., 266 P.3d 987 (Cal. 2012), plaintiffs argued that defendants pipes and valves
were defective because they became hot during high-temperature applications,
which caused the release of asbestos fibers. Id. at 996. The California Supreme
Court rejected that theory, explaining that a high operating temperature cannot
53
be labeled a defect because transferring heat was integral to the products
functioning. Id. at 997.
The same reasoning bars plaintiffs design-defect claims here. Instead of
identifying a defect specific to the Pinnacle Ultamet, plaintiffs argued only that
metal-on-metal hip implants are categorically defective, and that all metal-on-metal
implants should be banned from the market because they unavoidably release metal
debris. But just as in Pooshs and ONeil, that expansive theory of liability is not
viable because it attacks an inherent feature of metal-on-metal implants instead of
the particular design of the Pinnacle Ultamet. Pooshs, 904 F. Supp. 2d at 1025.
The district court acknowledged that plaintiffs were attacking an inherent
feature of metal-on-metal hip implants, but nevertheless allowed plaintiffs to
proceed because other types of implantsimplants using metal-on-polycould
have prevented the allegedly problematic metal debris. ROA.17-10017.3550. But
the entire reason for developing metal-on-metal hip implants was to fix the problems
caused by metal-on-poly implants; namely, to eliminate the the problematic plastic
debris associated with osteolysis. The courts reasoning, therefore, improperly
compares the Ultamet not to alternative designs for the same poly-free product, but
rather to entirely different productsand indeed, products whose shortcomings
spurred the development of the poly-free Ultamet.
54
Just as the plaintiff in Pooshs could not have pointed to chewing tobacco, e-
cigarettes, or nicotine patches as alternative designs for cigarettes, neither can
plaintiffs here point to hip implant devices made of different materials and
components, designed for different patient populations, and subject to different
regulatory regimes. Compare, e.g., 21 C.F.R. 888.3330, with 21 C.F.R. 888.3310.
This Courts decision in Theriot v. Danek Med., Inc., 168 F.3d 253 (5th Cir. 1999),
proves the point. In Theriot, this Court held that a plaintiff alleging a design defect
in pedicle screws used for spinal stability must demonstrate a safer alternative design
that involves pedicle screws; he could not prevail just by pointing to other products
intended to provide biomechanical stability. Id. at 255-56.
In all events, even if a metal-on-polyethylene implant were a valid alternative
design, plaintiffs claims still would fail because DePuy offered that alternative at all
relevant times. A design-defect claim cannot proceed under those circumstances
because such a claim really takes issue with the choice of treatment made by [the
plaintiffs] physician, not with a specific fault of the product in question. Id. at 255.
As this Court recognized in Scallan v. Duriron Co., 11 F.3d 1249 (5th Cir. 1994),
[i]t makes no practical sense to impose liability on a defendant for a supposedly
defective feature when the plaintiff, or the plaintiffs surgeon, knowingly rejected
the very alternative it now claims was safer. Id. at 1254; see also Linegar v. Armour
of Am., Inc., 909 F.2d 1150 (8th Cir. 1990).
55
Those principles control here. At all times, DePuy offered the metal-on-
polyethylene hip implant that plaintiffs now claim was preferable. Plaintiffs
surgeons nonetheless chose to use a metal-on-metal implant, deciding in their
professional judgment that the benefits of metal-on-metal outweighed its risks for
these plaintiffs. Ms. Rodriguezs surgeon, for instance, testified that he weighed the
risks and benefits of metal-on-metal devices, ROA.17-10017.16702-04, and chose
metal-on-metal because of Ms. Rodriguezs age and individual characteristics.
ROA.17-10017.16706. Just as in Scallan, it makes no practical sense to impose
liability on DePuy merely for offering surgeons a metal-on-metal option that
plaintiffs surgeons decided was the preferable choice.
2. Federal law preempts plaintiffs design-defect claims.
If state and federal law directly conflict, the state law is preempted and must
give way. PLIVA v. Mensing, 564 U.S. 604, 617 (2011). One type of conflict occurs
when state tort law stands as an obstacle to the accomplishment and execution of
federal objectives. Hines v. Davidowitz, 312 U.S. 52, 67 (1941). Even if plaintiffs
categorical design-defect theory were viable under state law, it would directly
conflict with FDAs considered judgment that metal-on-metal devices should not be
banned but instead should be regulated as Class III medical devices.
FDA regulates all medical devices sold in the United States, and it oversees
the sale of those devices by classifying them based on the potential risk they pose to
56
the public. FDA can designate medical devices as Class I (e.g., latex gloves), Class
II (e.g., surgical drapes), or Class III (e.g., pacemakers)or it may ban devices
outright. 21 U.S.C. 360f(a)(1). After carefully evaluating the safety and
effectiveness of metal-on-metal hip implants, FDA determined that they may be sold
so long as they comply with the requirements for Class III medical devices. 21
C.F.R. 888.3330(b). In fact, FDA has repeatedly rejected requests to ban metal-on-
metal hip implants, and has approved at least three metal-on-metal hip resurfacing
systems through the premarket approval process.
The verdict below directly conflicts with FDAs expert judgment. Under
plaintiffs categorical theory of design defect, all metal-on-metal hip implants are
defective. FDA, however, has reached the exact opposite conclusion, determining
that metal-on-metal implants should remain available for sale as Class III devices
instead of being banned because they offer relief of disabling pain and restoration
of joint function, and offer the potential to be especially beneficial in young, active
patients. 81 Fed. Reg. 8146, 8147-48 (Feb. 18, 2016); see also 78 Fed. Reg. 4094,
4099 (Jan. 18, 2013). Because the state-law tort duty imposed below would ban an
entire class of products that FDA has concluded should remain available, plaintiffs
categorical attack is preempted.
57
B. Plaintiffs Failure-To-Recall Claims Fail as a Matter of Law.
Defendants are entitled to judgment as a matter of law on plaintiffs negligent
failure-to-recall claims because no such cause of action exists under California law.
Plaintiffs failed to identify a single case in which a California court allowed plaintiffs
to ask a lay jury whether an implantable medical device should have been recalled
an action that would potentially prompt thousands of surgeries. The district court,
as a federal court sitting in diversity, had no authority to create innovative theories
of recovery under [state] law. Barfield v. Madison Cty., 212 F.3d 269, 272 (5th
Cir. 2000).
In the district court, plaintiffs cited, without discussion, five cases from the
California courts of appeals. ROA.17-1017.12010-11. Not a single one of those
cases establishes (or even mentions) the kind of failure-to-recall claim that plaintiffs
assert. Instead, those cases concern a manufacturers liability for failing to retrofit
a product with technology developed after the initial sale. See, e.g., Hernandez v.
Badger Constr. Equip. Co., 28 Cal. App. 4th 1791 (1994). That type of claim is a
far cry from the one plaintiffs asserted here, which asked a lay jury to determine
whether Defendants should have initiated a recall of an implanted medical device,
which could lead to invasive surgery for thousands of patients and should not
reasonably be required without at least consulting FDA.
58
Nor is there any indication that California courts would permit such an
extraordinary claim. The Restatement, for example, explains that failure-to-recall
claims are generally permitted only in one of two circumstances, neither of which
applies here: (1) if a government entity orders a recall and the distributor fails to
conduct that recall; or (2) if a distributor affirmatively undertakes a recall but does
so negligently. See Restatement (Third) of Torts: Product Liability 11 (1998). For
good measure, the American Bar Association endorses the Restatements position,
noting the virtual unanimity that a duty [to recall] will ordinarily only be
triggered in [these] two limited circumstances. Am. Bar Assn, Post-Sale Duty to
Warn: A Report of the Products Liability Committee 10 (2004). There is no
contention that either circumstance exists in this case. Because California has never
recognized such a cause of actionand because there is no basis to assume it would
depart from the consensus on the pointthe district court erred by permitting
plaintiffs to pursue a failure-to-recall cause of action.
In all events, even if the claim existed, the record contains no evidence that
any failure to recall caused plaintiffs injuries. Here, none of plaintiffs surgeons
testified that he would have revised a plaintiffs hip sooner if only Defendants had
issued a recall. To the contrary, the surgeons testified that they undertook revision
surgery as soon as the plaintiffs became symptomaticand that they would not have
done so any sooner regardless of any recall. See ROA.17-10017.16501 (Dr. Kuo: I
59
would not revise a hip implant unless it was medically indicated to do so.);
ROA.17-10017.9907-08 (other doctors). Each plaintiff underwent revision surgery
upon becoming symptomatic, and plaintiffs presented no evidence that their doctors
would have proceeded any differently if Defendants had recalled the Ultamet.
C. Plaintiffs Failure-To-Warn and Fraud Claims Fail as a Matter of

Law.
Defendants are entitled to judgment as a matter of law on plaintiffs failure-
to-warn and fraud claims because the trial record contains no evidence of
causation.17 In California drug and device cases, plaintiffs alleging fraud or failure-
to-warn must prove that their prescribing doctor relied on the manufacturers alleged
misrepresentations or that stronger warnings would have caused the doctor to make
a different treatment decision. See, e.g., Latiolais v. Merck & Co., 302 F. Appx 756,
757-58 (9th Cir. 2008); Motus v. Pfizer Inc., 196 F. Supp. 2d 984, 990-91 (C.D. Cal.
2001), affd, 358 F.3d 659 (9th Cir. 2004); Cadlo v. Owens-Ill., Inc., 125 Cal. App.
4th 513, 519 (2004).
Here, each of plaintiffs surgeons disclaimed reliance on DePuys statements
or representations, and not a single one testified that different warnings would have
17
The district court instructed the jury on eight independent failure-to-warn and
fraud claims. See ROA.17-10017.12193-96, ROA.17-10017.12199-216, ROA.17-
10017.12219-20, ROA.17-10017.12223-34. Those duplicative causes of action do
not differ with respect to causation, so the arguments in this section apply equally to
them all.
60
caused him to change his treatment decision. Dr. Miric (who treated Rodriguez)
testified that he didnt rely on advertising from DePuy in making the decision to
implant Mrs. Rodriguez with a metal-on-metal hip. ROA.17-10017.16672; see also
ROA.17-10017.16607-08 (I dont read them.); ROA.17-10017.16672 ([I do not]
rely on advertisements.). Dr. Woods (Metzler) testified that he could not identify
any advertisement, brochure or piece of paper or representation made by DePuy
about the Ultamet device that [he] relied on. ROA.17-10017.15926; see also
ROA.17-10017.15911 (would never rely on the say-so of a sales rep). Likewise,
Dr. Tay (Andrews) testified that DePuy advertisements were nothing but scrap
paper and that he never bothered to read the warnings included in the Ultamets
Instructions for Use. ROA.17-10017.16043-46; ROA.17-10017.16069. The same
is true of Dr. Howe (Standerfer), see ROA.17-10017.17472-74, and Dr. Huddleston
(Weiser), ROA.17-10017.18023-25; ROA.17-10017.18030-31. And Dr. Rose
(Davis) did not testify at trial. Because plaintiffs failed to prove that any failure-to-
warn or misrepresentation caused their injuries, Defendants are entitled to judgment
as a matter of law.18
18
Because plaintiffs substantive claims fail as a matter of law, their dependent
aiding-and-abetting and conspiracy claims also must fall. See Applied Equip. Corp.
v. Litton Saudi Arabia Ltd., 7 Cal. 4th 503, 511 (1994).
61
V. The Non-Economic Compensatory Damages Awards Must Be Vacated Or

Remitted.
The jurys damages awardwhich includes just $361,648 in economic
damages but $32 million in non-economic compensatory damagesis both
excessive and unsupported by the evidence. Moreover, the jury disregarded its duty
to assess each category of damages independently, instead awarding each plaintiff
the same amount on all eight lines of the special verdict formincluding for
categories about which plaintiffs did not introduce any evidence. Because the non-
economic damages awards are excessive and unsupported by evidence, they must be
vacated or remitted.
A. The Compensatory Damages Awards Are Excessive.

When evaluating jury awards for excessiveness in diversity actions, district
courts apply the states law controlling jury awards for excessiveness. Foradori
v. Harris, 523 F.3d 477, 497 (5th Cir. 2008). Under California law, a verdict is
excessive when it is so large that, at first blush, it shocks the conscience and
suggests passion, prejudice or corruption on the part of the jury. Seffert v. L.A.
Transit Lines, 56 Cal. 2d 498, 507 (1961). If the award is excessive, this Court
applies the maximum recovery rule, under which the verdict must be remitted to
the maximum amount permitted in similar cases in the relevant state. Lebron v.
United States, 279 F.3d 321, 325-26 (5th Cir. 2002).
62
The jury awarded each plaintiff between $4 million and $6 million in non-
economic compensatory damages, plus another $1 million to each of the spouses of
the four married plaintiffs. Those awards are excessive at face value, but most
obviously so with respect to the multi-million dollar amounts for future non-
economic damages, which the jury awarded even though all six plaintiffs had
successful revision surgeries and are nearly symptom-free.
Andrews: The jury awarded Andrews $4 million in non-economic
compensatory damages. Half of that award was for future non-economic damages,
even though his revision surgery went smoothly and presented no
complications. ROA.17-10017.16505-06; ROA.17-10017.16942. Looking ahead,
Mr. Andrews testified that although some groin pain occasionally shows up, that
pain is [n]othing compared to what it was before revision surgery, and that on the
whole, he is doing much better. ROA.17-10017.16889. At a recent visit with his
physical therapist, he reported that his hip feels great and that everything is going
well. ROA.17-10017.16943.
Davis: The jury likewise awarded Davis $4 million in non-economic
compensatory damages, with half for future damages. Davis, however, had a
successful revision surgery and was pain-free after just two weeks. ROA.17-
10017.17138. Davis has not visited any doctor about her hip in almost three years
(other than a counsel-arranged appointment before trial). ROA.17-10017.17152,
63
ROA.17-10017.16433. She rated her discomfort at the time of trial as about a 2
out of 10. ROA.17-10017.17051-52.
Metzler: Just as with Andrews and Davis, the jury awarded Metzler
$4 million in non-economic compensatory damages (an amount 130 times greater
than her economic damages of $25,046). Metzlers blood levels returned to normal
shortly after revision surgery, and after three months, she resumed her regular
activities, including traveling to Florida and Mexico, doing water aerobics, going on
walks, doing household chores, and working part-time at a clothing store. ROA.17-
10017.17238-41. In all, she is doing much, much better than before her initial
surgery. ROA.17-10017.17243.
Weiser: The jury awarded Weiser the same $4 million in non-economic
compensatory damages, again with $2 million of that award for future damages
even though Weiser testified that [t]he revision worked, that his hip doesnt hurt
anymore, and that the pain went away. ROA.17-10017.17336. Although his hip
does get[] stiff sometimes, he is back to playing golf, hiking, walking, [and] doing
all the chores around the house. ROA.17-10017.17336-37.
Rodriguez: The jury awarded Rodriguez, who had bilateral implants, $6
million in non-economic compensatory damages, including $3 million in future
damages. Her revision surgery was a complete success. She has not visited her
surgeon in three years; at her last visit, she reported little to no pain, was
64
ambulating with no aids, and demonstrated a full, fluid range of motion of the
hip. ROA.17-10017.16732. The entirety of her testimony about her forward-
looking prognosis was: Im doing pretty good. Im a work in progress. I mean,
every day, you know, its a little better. Some days better than others. But for the
most part [Im] doing pretty well. ROA.17-10017.17296-97.
Standerfer: Just as with Rodriguez, the jury awarded Standerfer $6 million
in non-economic compensatory damages, $3 million of which was for future harm.
Standerfer testified about dislocating her hip about eight months after revision
surgery, ROA.17-10017.17314-15, but her only other testimony about her post-
revision condition was: Im doing better in some areas, but I still have a lot of pain
and its a different pain right now. ROA.17-10017.17315.
Those awards are excessive not only on their own terms, but also in
comparison to past California decisions, which have disallowed similarly large non-
economic awards. See Bigler-Engler v. Breg, Inc., 7 Cal. App. 5th 276, 300-05
(2017) (remitting non-economic damages award from $5.1 million to $1.3 million),
review denied (Mar. 29, 2017); Collins v. Union Pac. R.R., 207 Cal. App. 4th 867,
873-75 (2012) (affirming order remitting non-economic damages award from $3.5
million to $2.25 million). In cases with injuries similar to plaintiffs, California
juries have awarded significantly less. See Luttrell v. Island Pac. Supermarkets, Inc.,
215 Cal. App. 4th 196 (2013) ($40,000 in non-economic damages); Stone v. Ctr. Tr.
65
Retail Properties, Inc., 163 Cal. App. 4th 608 (2008) ($300,000); Elsner v. Uveges,
34 Cal. 4th 915 (2004) ($500,000); Westphal v. Wal-Mart Stores, Inc., 68 Cal. App.
4th 1071 (1998) ($150,000). Because the damages here are excessive and out-of-
step with awards in similar California cases, this Court should remand for a new
damages trial or order remittitur.
B. The Record Contains No Evidence to Support Multiple Categories

of Compensatory Damages.
Even setting excessiveness aside, the non-economic compensatory awards
cannot stand because plaintiffs failed to introduce sufficient evidence to support
multiple categories of those awards. First, none of the plaintiffs presented any
evidence of past or future disfigurement. Disfigurement damages, which
compensate a plaintiff for [s]carring, loss of a limb, paralysis, or any other change
in plaintiffs physical appearance, typically arise when a plaintiff is stabbed,
slashed, or burned. Justice Zerne P. Haning (Ret.) et al., California Practice Guide:
Personal Injury Ch. 3-C, 3:698 (2017); see, e.g., People v. Newby, 167 Cal. App.
4th 1341, 1348 (2008) (scarring); People v. Keenan, 227 Cal. App. 3d 26, 29 (1991)
(burning). No plaintiff here presented any evidence of scarring, burns, or other
disfigurement resulting from the Ultamet or from revision surgery. In fact, the only
plaintiff who testified about a scar was Andrews, see ROA.17-10017.16887, but his
surgeon clarified that he simply re-incised the previous surgical incision.
66
ROA.17-10017.16537-38.19 Because the record contains no evidence of any past or
future disfigurement resulting from the Ultamets alleged defects, those awards
(totaling $7 million) must be vacated.
The record also is insufficient to support future physical impairment damages
for four plaintiffs. Physical impairment damages compensate for limits on the
plaintiffs capacity to share in the amenities of life, Loth v. Truck-A-Way Corp., 60
Cal. App. 4th 757, 763 (1998), like impairment of taste and smell, Purdy v. Swift &
Co., 34 Cal. App. 2d 656, 658 (1939). Plaintiffs failed to present any evidence of
future physical impairment for Metzler ($500,000), Rodriguez ($750,000),
Standerfer ($750,000), and Weiser ($500,000). Not a single one of them testified
about their inability to partake in lifes amenities; in fact, some of them testified to
the contrary. See, e.g., ROA.17-10017.17240 (Metzler testifying she was pretty
much able to resume [her] normal activities within three months); ROA.17-
10017.17336 (Weiser and his wife go out and do stuff together that we just couldnt
do between the first surgery and second surgery).
Plaintiffs also failed to present sufficient evidence in several other categories,
including: past emotional distress for Rodriguez; future emotional distress for
19
Every hip implant surgery creates a scar. The relevant question here is not
whether each plaintiffs original surgery created a scar, but whether revision surgery
caused additional scarring. The record contains no evidence of the latter.
67
Rodriguez, Standerfer, and Weiser; future physical pain for Weiser; past loss of
consortium for Andrews and Metzler; and future loss of consortium for Andrews,
Davis, Metzler, and Weiser. See ROA.17-10017.12343-44. Plaintiffs failure of
proof is nowhere more apparent than in their own post-trial briefing, where they
included a chart purporting to identify testimony supporting each challenged
category of damages. ROA.17-10017.12584-86. But in that chart, plaintiffs
repeatedly cited the same few lines of testimony for massive awards in multiple
categories. For example, for the Weisers, plaintiffs cited the exact same testimony
as support for future physical impairment, future physical pain, future disfigurement,
and future loss of consortium. ROA.17-10017.12585-86 (all citing ROA.17-
10017.17335-36). In reality, that testimony supports none of those awards. The bulk
of it relates to past loss of consortium, and the remainder discusses the absence of
ongoing injury, including that [t]he revision worked, the pain went away, and I
feel pretty good. ROA.17-10017.17336.
At an absolute minimum, the awards in the multiple categories lacking
sufficient evidence must be vacated. But given that the jury clearly was unable or
unwilling to carry out its duty, instead awarding identical amounts even in those
categories where no evidence was submitted, the entire award should be vacated.
68
VI. The Punitive Damages Award Must Be Reduced.
In addition to the grossly excessive non-economic compensatory damages
award, the jury also awarded $1 billion in punitive damages$168 million in
punitive damages for each plaintiff (plus an additional $250,000 for each spouse).
The district courts order reducing that award to $509,014,241still an 18:1 ratio to
compensatory damages and a 1400:1 ratio to economic damagesdid not go far
enough. The arbitrary and excessive award on which the district court entered
judgment violates Defendants due process rights and must be reduced further or
vacated entirely. As for plaintiffs argument on appealnamely, that even $509
million is not enoughthat argument was not preserved below and, in all events, is
meritless.
A. The Punitive Damages Award Is Excessive.

The district courts staggering award of a half-billion dollars in punitive
damages defies law and reason. First and foremost, the punitive damages award
must be vacated because it is arbitrary. Punitive damages are a form of punishment
and retribution. State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 412,
416 (2003). The Due Process Clause therefore mandates vigilance over the
imprecise manner in which punitive damages are administered. Id. at 417. The
Supreme Court has exhorted lower courts to address the real problem with the
69
stark unpredictability of punitive awards. Exxon Shipping Co. v. Baker, 554 U.S.
471, 499 (2008) (plurality).
If ever there were a case where a punitive award could be characterized by
stark unpredictability, this is it. The jury awarded $84 million in punitive damages
to each of the six primary plaintiffs against each defendant. But it is painfully
obvious that the jury based the amount of each award on a single irrelevant datum:
the $84 million that DePuy paid to the government in a civil settlement relating to
the allegations in the DPAan amount that plaintiffs counsel repeated five times
during closing argument. The conduct underlying that civil settlement was never
proved, never admitted, and it had no nexus to the specific harm suffered by the
plaintiff[s], State Farm, 538 U.S. at 422, because plaintiffs never claimed that any
of their surgeons received payments, much less payments that caused them to choose
the Ultamet. The jurys decision nevertheless to fill every punitive blank on the
verdict form with $84,000,000 in rote fashion is the quintessential example of an
irrational and arbitrary award of punitive damages that must be vacated. Id. at
429.
The magnitude of the punitive damages award also renders it unconstitutional.
The Due Process Clause prohibits the imposition of grossly excessive
punishments. State Farm, 538 U.S. at 416. In addition to constitutional problems,
an eccentrically high punitive verdictfor instance, a half-billion dollars
70
offends our commonly held notion of law. Exxon, 554 U.S. at 502. To put the
$509 million punitive award in context, the award is significantly greater than what
the Supreme Court deemed excessive against a national insurance company for a
multi-decade fraud scheme. State Farm, 538 U.S. at 419-24 (vacating $145 million
award). It is greater than what the Supreme Court deemed excessive in tort litigation
against big tobacco. Philip Morris USA v. Williams, 549 U.S. 346, 349-50 (2007)
(vacating $32 million award). It is even greater than the maximum allowable
punitive damages award for one of the worst environmental disasters in U.S. history.
Exxon, 554 U.S. at 515 (allowing maximum of $507.5 million).
Another telltale sign of the punitive awards incompatibility with the Due
Process Clause is the shocking 18:1 ratio of punitive to (highly inflated)
compensatory damagesa ratio that soars to over 1400:1 for punitive damages to
economic damages. Although few awards exceeding a single-digit ratio will
satisfy due process, the reality is that anything more than four times the amount of
compensatory damages skirts the line of constitutional impropriety. State Farm,
538 U.S. at 425. The Supreme Court, in fact, has repeatedly relied on that 4-to-1
ratio as a rule of thumb for determining compliance with the Constitution, id., and
has suggested that in a case where compensatory damages are substantial, such
as this one, a 1:1 ratio would reach the outermost limit of the due process
guarantee, Exxon, 554 U.S. at 514 (quoting State Farm, 538 U.S. at 425)).
71
Curiously, even the district court recognizedand apparently intended to
comply withthese constitutional limitations at least to a degree, but then
apparently miscalculated. In reducing punitive damages, the court stated that few
awards exceeding a single-digit ratio will satisfy due process and that [s]ingle-
digit multipliers are more likely to comport with due process, while still achieving
the States goals of deterrence and retribution. E.g., ROA.17-10017.12311 (citing
State Farm, 538 U.S. at 425). For each plaintiff, the court then purported to
reduce[] the punitive damages accordingly. Id.20 The court, however, did not
actually reduce the damages accordingly, i.e., to a single-digit ratio. Instead, the
amounts by which the court reduced each plaintiffs punitive damages award
resulted in an 18:1 ratio for each plaintiff. For example, Metzlers award was
reduced from $168 million to $72,450,821.34 ($36,225,410.67 per Defendant),
based on a compensatory award of $4,035,045.63, reducing the ratio from 42:1 to
18:1. Similarly, the award to Standerfer (who, as a bilateral Ultamet recipient,
received higher compensatory damages) was reduced from $168 million to
$109,105,478.10 ($54,552,739.05 per Defendant), based on a compensatory award
of $6,061,415.45, reducing the ratio from 28:1 to 18:1.
20
The court reduced punitive damages in each plaintiffs final judgment. See,
e.g., ROA.17-10017.12696; ROA.17-10020.12302.
72
The explanation for this miscalculation seems obvious: while punitive
damages awards were levied against each defendant individually, the compensatory
damages were awarded jointly against both defendants. Thus, by attempting to
reduce the punitive damages in order to produce a 9:1 ratio, but losing sight of the
fact that each defendant would ultimately be responsible for only half the
compensatory damages (after accounting for contribution), the district inadvertently
produced an 18:1 ratio. Thus, by the district courts own logic, its punitive award
should be further reduced in half to produce the district courts intended 9:1 ratio.
But the very fact that the district court could make a quarter-billion dollar
computational error strongly suggests that the punitive damages numbers the jury
awarded were so grossly excessive that even further reductions are constitutionally
compelled.
B. Plaintiffs Waived Their Argument That The District Court Erred

By Reducing The Punitive Damages Award.
Plaintiffs argument on appeal is waived, as they never objected to the district
courts sua sponte reduction of the punitive damages award. This Court does not
consider new issues that were not raised before the district court. Little v. Liquid
Air Corp., 37 F.3d 1069, 1071 n.1 (5th Cir. 1994) (en banc); accord Montes v.
Ransom, 219 F. Appx 378, 381 (5th Cir. 2007). Here, after the district court sua
sponte reduced the punitive damages award to $509 million, ROA.17-10017.12310-
12, plaintiffs did not move for reconsideration, did not file a Rule 59(e) motion to
73
alter or amend the judgment, and did not do anything else to present an argument
about why the district court should not have reduced punitive damages. Instead,
they filed their notices of appeal mere hours after the district court entered final
judgment, ROA.17-10017.12313-15, never giving the district court an opportunity
to consider or address the arguments they now present on appeal. Because plaintiffs
failed to raise their arguments before the district court, they have waived those
arguments on appeal.
C. The District Court Did Not Err By Reducing The Punitive

Damages Award.
Little ink need be spent on the plaintiffs substantive argument, for the district
court did not err by determining that the jurys $1 billion punitive damages award
was constitutionally excessive. Tellingly, the plaintiffs cite no case from the
Supreme Court, this Court, or any court that has held that it was error to reduce a
punitive awardmuch less to reduce a punitive award exceeding an overall 30:1
ratio to compensatory damages (42:1 for some plaintiffs). And for all the reasons
already discussed, the punitive damages awards remain excessive even in their
reduced amounts; a fortiori, the district court did not err by refusing to allow them
to remain in the full amounts the jury awarded.
The plaintiffs rely on the Supreme Courts three guideposts, State Farm,
538 U.S. at 418, but however reprehensible the plaintiffs wish to mischaracterize
Defendants alleged conduct as being, the district court was permitted to g[o] no
74
further than a modest punishment that satisfies the objectives of a punitive award.
Id. at 419-20. As explained above, the historical norm for a ratio is double, treble,
or quadruple damages. Id. at 425. The median ratio for punitive damages has
remained less than 1:1, a ratio that is all but required when, as here, compensatory
damages are substantial. Exxon, 554 U.S. at 498, 514 (emphasis added). And here,
as in State Farm, the most relevant civil sanctions are fines for no more than
$10,000an amount dwarfed by the [$509 million] punitive damages award.
State Farm, 538 U.S. at 428.21 Examined through any lens, the half-billion dollar
awardto say nothing of the original $1 billion awardis an extraordinary outlier
punitive-damages awar[d] that cannot remotely be reconciled with the due process
standards of the Constitution. Exxon, 554 U.S. at 501.
21
The plaintiffs manipulate math to derive astronomical penalties based on small
underlying fines. See Br.54 (arguing that a $10,000 fine should be understood as a
$141,180,000 penalty). Neither the Supreme Court nor this Court has ever
sanctioned this approach. To the contrary, the Supreme Court signaled in State Farm
that the proper approach is to compare the amount of the statutory finewithout any
manipulationto the total punitive award. 538 U.S. at 428 (comparing $10,000 to
$145,000,000).
75
CONCLUSION
For the foregoing reasons, the Court should reverse or vacate the judgment
below.
Respectfully submitted,
s/ Paul D. Clement
JOHN H. BEISNER PAUL D. CLEMENT
STEPHEN J. HARBURG Counsel of Record
SKADDEN, ARPS, SLATE, GEORGE W. HICKS, JR.
MEAGHER & FLOM LLP MICHAEL D. LIEBERMAN
1440 New York Avenue, N.W. ROBERT M. BERNSTEIN
Washington, DC 20005 KIRKLAND & ELLIS LLP
(202) 371-7000 655 Fifteenth Street, NW
MICHAEL V. POWELL (202) 879-5000
LOCKE LORD LLP paul.clement@kirkland.com
2200 Ross Avenue, Suite 2800
Dallas, TX 75201
(214) 740-8453
Counsel for Defendants-Appellees-Cross-Appellants

September 29, 2017
76
CERTIFICATE OF COMPLIANCE
I certify:
1) Pursuant to Rule 32(g)(1) of the Federal Rules of Appellate Procedure, the
textual portion of the foregoing brief (exclusive of the disclosure statement, tables
of contents and authorities, certificates of service and compliance, but including
footnotes) contains 17,486 words as determined by the word counting feature of
Microsoft Word 2016. On September 25, 2017, the Court granted Defendants-
Appellees leave to file this brief in excess of the standard word limit.
2) This brief complies with the typeface requirements of Fed. R. App. P.
32(a)(5) and the typestyle requirements of Fed. R. App. P. 32(a)(6) because it has
been prepared in a proportionally spaced typeface using Microsoft Word 2016 in 14-
point font.
3) The required privacy redactions have been made pursuant to 5th Cir. R.
25.2.13, the electronic submission is an exact copy of the paper submission, and the
document has been scanned for viruses using Windows Defender, last updated
September 29, 2017, and is free of viruses.

s/Paul D. Clement
PAUL D. CLEMENT
Counsel of Record
KIRKLAND & ELLIS LLP
655 Fifteenth Street, NW
(202) 879-5000
CERTIFICATE OF SERVICE
I hereby certify that on September 29, 2017, I electronically filed the
foregoing with the Clerk of the Court for the United States Court of Appeals for the
Fifth Circuit by using the CM/ECF system. I certify that all participants in this case
are registered CM/ECF users and that service will be accomplished by the CM/ECF
system.
s/Paul D. Clement
PAUL D. CLEMENT
Counsel of Record
KIRKLAND & ELLIS LLP
655 Fifteenth Street, NW
(202) 879-5000

DePuy Appeals Verdict in California Cases

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Case: 17-10017 Document: 00514177966 Page: 1 Date Filed: 09/29/2017

UNITED STATES COURT OF APPEALS

IN RE: DEPUY ORTHOPAEDICS, INCORPORATED, PINNACLE HIP IMPLANT

ROSA A. METZLER; VOLKMAR METZLER,

On Appeal from the United States District Court

PRINCIPAL AND RESPONSE BRIEF

JOHN H. BEISNER PAUL D. CLEMENT

IN RE: DEPUY ORTHOPAEDICS, INCORPORATED, PINNACLE HIP IMPLANT

MICHAEL WEISER; RANDI WEISER,

IN RE: DEPUY ORTHOPAEDICS, INCORPORATED, PINNACLE HIP IMPLANT

IN RE: DEPUY ORTHOPAEDICS, INCORPORATED, PINNACLE HIP IMPLANT

IN RE: DEPUY ORTHOPAEDICS, INCORPORATED, PINNACLE HIP IMPLANT

KATHLEEN DAVIS; PETE G. DAVIS,

IN RE: DEPUY ORTHOPAEDICS, INCORPORATED, PINNACLE HIP IMPLANT

MARVIN ANDREWS; ELIZABETH ANDREWS,

IN RE: DEPUY ORTHOPAEDICS, INCORPORATED, PINNACLE HIP IMPLANT

ROSA A. METZLER; VOLKMAR METZLER,

IN RE: DEPUY ORTHOPAEDICS, INCORPORATED, PINNACLE HIP IMPLANT

MICHAEL WEISER; RANDI WEISER,

IN RE: DEPUY ORTHOPAEDICS, INCORPORATED, PINNACLE HIP IMPLANT

IN RE: DEPUY ORTHOPAEDICS, INCORPORATED, PINNACLE HIP IMPLANT

IN RE: DEPUY ORTHOPAEDICS, INCORPORATED, PINNACLE HIP IMPLANT

KATHLEEN DAVIS; PETE G. DAVIS,

IN RE: DEPUY ORTHOPAEDICS, INCORPORATED, PINNACLE HIP IMPLANT

MARVIN ANDREWS; ELIZABETH ANDREWS,

CERTIFICATE OF INTERESTED PERSONS

Metzler et al. v. DePuy Orthopaedics, Inc. et al., Nos. 17-10017, 17-10018,

17-10019, 17-10020, 17-10021, 17-10022, 17-10828, 17-10830, 17-10831,

17-10832, 17-10833, 17-10834

judges of this court may evaluate possible disqualification or recusal:

Jennifer M. Hoekstra); Simmons Hanly Conroy (Jayne Conroy, Andrea

Bierstein); Walkup, Melodia, Kelly & Schoenberger (Khaldoun Baghdadi),

Counsel for Plaintiffs-Appellants-Cross-Appellees.

(John H. Beisner, Stephen J. Harburg, Jessica D. Miller, Geoffrey M. Wyatt);

A. Anderson); Quattlebaum, Grooms & Tull PLLC (Steven W. Quattlebaum);

STATEMENT REGARDING ORAL ARGUMENT

Although this Courts decision in the related case In re Depuy Orthopaedics,

dispositive personal-jurisdiction question in this appeal, Defendants nevertheless

trials absent correction by this Court.

STATEMENT REGARDING ORAL ARGUMENT ............................................... iii

TABLE OF AUTHORITIES ................................................................................... vii

STATEMENT OF JURISDICTION ......................................................................... 1

STATEMENT OF THE ISSUES .............................................................................. 5

STATEMENT OF THE CASE.................................................................................. 6

A. Background on Hip Implants and the Ultamet..................................... 6

B. The MDL Proceedings ......................................................................... 8

C. The First and Second MDL Trials ...................................................... 10

D. The Third MDL Trial...........................................................................11

E. The Fourth MDL Trial and Mandamus Petition................................. 14

STANDARD OF REVIEW .................................................................................... 16

SUMMARY OF ARGUMENT ............................................................................... 17

I. The District Court Did Not Have Personal Jurisdiction Over

II. The District Court Abused Its Discretion By Sua Sponte

A. Consolidation of the Trials Did Not Provide Any Benefit Not

B. Consolidation Confused the Jury and Prejudiced Defendants ........... 33

III. Defendants Are Entitled To A New Trial In Light Of The District

A. The District Court Erred by Allowing Dr. Bernard Morrey to

B. The District Court Erred by Allowing Plaintiffs to Introduce

C. The District Court Exceeded Its Subpoena Power and

IV. DePuy And J&J Are Entitled To Judgment As A Matter Of Law On

A. Plaintiffs Design-Defect Claims Fail as a Matter of Law ................. 52

1. Plaintiffs theory of categorical defect is not viable

2. Federal law preempts plaintiffs design-defect claims............. 56