Mass Torts Need A Trigger Regulatory Action Voluntary Recall Bad PressLawsuits or Settlement Involving Other Products Big Jury Verdict Critical Article in Scientific Literature
Recent Developments in Class Actions: Daubert American Honda Motor Co., Inc. v. Allen, 2010 WL (7th Cir. Apr. 7, 2010) Held that before a district court may certify a class, it first “must conclusively rule” on any Daubert challenge if that expert’s testimony is “critical” to class certification. The district court isn’t allowed to punt Daubert and proceed with a “provisional” class when plaintiffs' whole class action depends on whether or not the experts are going to be able to prove on a classwide basis what they said they can prove.
Recent Developments in Class Actions: Off-Label Promotion Class Dismissed Central Regional Employees Benefit Fund v. Cephalon, Inc., 2010 WL (D.N.J. Mar. 29, 2010) Plaintiffs (third-party payors) sought to represent a class of governmental agencies, alleging that Cephalon engaged in improper “off-label” promotion. Concluded it would be futile to allow plaintiffs to amend their already- dismissed class complaint because plaintiffs could not state a claim under any of the theories of liability they sought to assert. “[O]ff-label marketing of an approved drug is itself not inherently fraudulent.”
Recent Developments in Class Actions: Cross Jurisdictional Tolling Fosamax Prods. Liab. Litig., 2010 WL (S.D.N.Y. Mar. 15, 2010) Procedural history: –Nationwide personal injury class action filed in Middle District of Tennessee. –Class action was transferred to New York as part of the MDL, and the MDL court denied class certification. –While the class was pending, a number of plaintiffs filed untimely individual personal injury lawsuits. Plaintiffs argued that the Virginia statute of limitations should be tolled during the pendency of the class certification decision in the MDL. Court declined to expand American Pipe to allow for cross-jurisdictional tolling, noting that “federal courts generally have been disinclined to import cross-jurisdictional tolling into the law of a state that has not ruled on the issue.”
Refusal To Create MDL In Re Ambulatory Pain Pump-Chondrolysis Prods. Liab. Litig. Centralization was sought on two separate occasions and denied (See MDL No. 2139, Order Denying Transfer). The number of defendants and products at issue weighed against centralization. “Individual issues of causation and liability continue to appear to predominate, and remain likely to overwhelm any efficiencies that might be gained by centralization.” Plaintiffs’ “different medical histories” considered an individual issue weighing against centralization.
Refusal To Transfer Cases To MDL In Re Seroquel Prods. Liab. Litig., MDL No JPML vacated conditional transfer of 15 cases with almost 900 plaintiffs. (JPML Order, February 5, 2010). Concluded the MDL has “reached an advanced stage,” and transfer of the 15 cases is no longer necessary for the “just and efficient conduct of the litigation.” Reconsideration pending.
MDLs: Do You Really Want One? Once an MDL is in place, plaintiffs will file many new complaints. Plaintiffs’ counsel can file their less meritorious cases in federal court where things move slowly. Plaintiffs’ counsel will put the good cases in state court and put the “dogs” in the MDL.
MDLs: Can Defendants Influence The Where? The Panel will consider many factors in exercising its discretion to designate a transferee court : (1) where the pending litigation has progressed furthest, (2) where the greatest number of cases are pending (3) where the documents, parties and witnesses are located, (4) where the greatest opportunity for state/federal coordination may exist, (5) what is the availability of a judge in the proposed transferee court or courts, and (6) will transfer serve any ulterior motive of any of the parties, such as forum shopping? How to oppose an MDL while also arguing for a particular forum?
MDL Discovery: Benefits And Pitfalls Benefits -Streamline litigation and weed out cases (plaintiffs counsel often dismiss their junk cases as soon as subjected to discovery) -Avoid duplication of discovery -Prevent inconsistent or repetitive rulings - Preserve the resources of the parties, their counsel, and the judiciary Pitfalls - Burdensome and untargeted discovery - One-sided discovery
Plaintiffs’ Position Plaintiffs typically want the MDL to focus on discovery regarding general liability issues only – basically, discovery of defendant. Argue that MDL discovery should be limited to “matters common to all cases” to minimize the cost of pretrial activity.
Defense Response Fairness requires a two-way street. Keep cases moving forward and preserve evidence. Weed out “junk” cases, which should have never been filed in the first place. Uncover common issues and questions suitable for disposition. Trial preparation.
Defendants Seek To Uncover Dispositive Common Issues Extent of usage No general causation No specific causation Daubert Estoppel/double recovery Continued use after filing suit Learned intermediary Statute of limitations Preemption
What MDL Courts Do In Pharmaceutical Cases Discovery Of All Plaintiffs Zyprexa Phenylpropanolanine (PPA) Aredia and Zometa Vioxx Diet Drug Propulsid St. Jude Rezulin Celexa and Lexapro Viagra Initial Expedited Discovery Programs Baycol Bextra and Celebrex Fosamax Prempro Seroquel
Discovery Promotes Docket Management In Re Phenylpropanolamine (PPA) Products Liability Litigation:
Phased Discovery Program Generic Discovery Master discovery requests served on Defendant Custodial production of generic documents Depositions of Defendant witnesses Generic expert discovery Daubert motions Motions re: generic issues Case-Specific Discovery Plaintiff Fact Sheets Record collection Lone Pine report Expedited case-specific discovery program Phased discovery for non- expedited cases Dispositive motions
Case-Specific Discovery Special Master Plaintiffs often drag their feet, create delays, and look for ways to resist case-specific discovery. Special Master to handle case-specific discovery improves the process. Seroquel MDL is a great example of how a Special Master has efficiently managed the case-specific discovery process.
Dismissals Through Informal Discovery In re: Welding Fume Prods. Liab. Litig., MDL No. 1535, [Ernest Ray, No ] (N.D. Ohio. 2010) Plaintiffs moved to dismiss a bellwether trial case because claims of severe disability were refuted by internet (specifically Facebook) photos discovered by defendants. Appropriate review of public websites requires no disclosure to opposing counsel, and can be done relatively cheaply.
Recent MDL Developments In re NuvaRing Prods. Liab. Litig., MDL No. 1964, 2009 WL (E.D. Mo. Aug. 6, 2009) Refused to consider motion to dismiss master complaint because it is a mere “administrative tool.” Then refused to consider motions to dismiss individual complaints. Views MDL’s sole role to be “the efficient coordination of discovery.”
MDL: Law Of The Case In Re Pharmacy Benefit Managers Antitrust Litigation, 2009 WL (3d Cir. Sept. 23, 2009) Prior to the creation of the MDL, district court entered an order compelling arbitration of antitrust issues in the case. After MDL was formed, the MDL judge vacated the arbitration ruling. Third Circuit held that the MDL Judge’s order vacating the arbitration ruling violated the law of the case doctrine. “[W]e do not believe that Congress intended that ‘Return to Go’ card would be dealt to parties involved in MDL transfers.”
MDL: Law Of The Case In Re Ford Motor Co., 591 F.3d 406 (5th Cir. 2009) Fifth Circuit held that while after remand, the transferor judge must give “some deference” to the MDL transferee judge’s decisions, that deference is not absolute. “The law of the case doctrine requires attention to the special authority granted to the multidistrict transferee judge and ensures that transferor courts respect the transferee court's decisions.... That doctrine also has the virtue of allowing transferor courts to correct serious errors of the transferee court."
Federal vs. State: Fraudulent Misjoinder In Re Prempro Prods. Liab. Litig., 591 F.3d 613 (8th Cir. 2010) Federal courts have repeatedly held that polyglot complaints violate the permissive joinder requirement of the Federal Rules and are improper. Eighth Circuit ruled that the manufacturers did not meet their burden of establishing that claims of plaintiffs in multi-plaintiff complaints are “egregiously misjoined” because plaintiffs’ “claims arise from a series of transactions between... pharmaceutical manufacturers and individuals that have used [their] drugs” and plaintiffs “contend their claims are logically related because they each developed [the same injury]...”
Ex Parte Communications With Treaters Zometa/Aredia Prods. Liab Litig, Gaus v. Novartis Pharmaceuticals Corp., No. MID-L (N.J. Super. Law Div. Oct. 29, 2009) New Jersey court prohibited plaintiffs’ counsel from ex parte communications with plaintiffs’ treating physicians. To ensure the same right of access and promote an efficient discovery process, all parties ordered to proceed by way of deposition.
Ex Parte Communications With Treaters In Re NuvaRing Products Liability Litigation, 2009 WL (E.D. Mo., Mar. 20, 2009) Defendants sought approval to conduct ex parte interviews with plaintiffs’ treating doctors, arguing such interviews will “facilitate the discovery process.” Court rejected defendants’ request because defendants had alternative methods, i.e., formal discovery, to obtain information. Plaintiffs permitted to conduct ex parte interviews but the interviews were limited to the particular plaintiff's medical condition at issue in the litigation. Plaintiffs were also required to inform the physician of the voluntary nature of the interview.
Ex Parte Communications With Treaters In Re Ortho Evra Prods. Liab. Litig., MDL No (N.D. Ohio January 20, 2010) The MDL court allowed plaintiffs’ counsel to have ex parte contact with treating physicians but only to discuss the physicians’ records, course of treatment and related matters. Plaintiffs’ counsel were not allowed to discuss liability issues or theories, product warnings, defendant's research documents, or related materials. Sanctions would be imposed for violations of the Court’s approach.
State Court Coordination There is no statute equivalent to 28 U.S.C. § 1407 that permits intrastate coordination of lawsuits pending in state courts. California, Texas, Pennsylvania and New Jersey have well-developed coordination systems for intrastate actions. Joint hearings, similar case management orders, use of same discovery requests/responses. Jurisdiction with early involvement + many resources + experience with mass torts usually takes the lead in coordination. MDL is the default for taking the lead.
Forum Shopping And Choice Of Forum Issues
Choice of Forum Plaintiff’s choice is entitled to deference, but with limitations. Deference to plaintiff’s choice applied with less vigor when plaintiff is foreign. “When the plaintiff's choice is not its home forum... the presumption in the plaintiff's favor applies with less force, for the assumption that the chosen forum is appropriate is in such cases less reasonable.” Sinochem Int'l Co. Ltd. v. Malaysia Int'l Shipping Corp., 549 U.S. 422, 430 (2007).
Forum Non Conveniens Hunter v. Shire, Inc., 2010 WL (Pa. Super. March 17, 2010) Philadelphia is a convenient forum, even though plaintiff lived in Georgia, ingested the product in Georgia, suffered the alleged injuries in Georgia, all of plaintiff’s doctors were in Georgia, and all of plaintiff’s witnesses were in Georgia. The central issues in the case concerned the developing, testing and marketing of the drug, not plaintiff's consumption of the drug. Endorse blatant forum shopping.
Forum Non Conveniens (Cont’d) Avery v. Pfizer, Inc., (N.Y.A.D. Dec. 22, 2009) Claims of a dozen or so Lipitor plaintiffs belongs in Georgia where the plaintiff “lives in Georgia,” “ingested the drug in Georgia," suffered his injuries in Georgia,” “all [plaintiff's] treating physicians are in Georgia,” and “all of [plaintiff's] witnesses are in Georgia.” What happens to issues of specific causation, reliance and damages? Attendance of company witnesses at trial v. inability to compel treating doctors to testify out of state.
Forum Non Conveniens In Mass Torts In Re Seroquel Prods. Liab. Litig., MDL No Thousands of non-New York residents filed lawsuits in New York. Plaintiffs argued for a “mass tort exception” to forum non conveniens. “The mass tort nature of this [New York litigation] should weigh heavily in the [court’s forum non conveniens] analysis.”
Forum Non Conveniens: Foreign Nationals’ Strategies Ex parte dismissal in foreign forum Foreign blocking statutes Expansive U.S. residency Burdensome conditions of dismissal
Legal Climate 2010 (Institute of Legal Reform) StateOverallClass Actions and Mass Torts Delaware1Not Ranked North Dakota27 Nebraska32 New Jersey32Not Ranked Pennsylvania3431 Louisiana49 West Virginia50
Forums To Avoid American Tort Reform Association’s annual list of most unfair jurisdictions in which to be sued. New Jersey’s “Mass Tort Capital,” Atlantic County, New Jersey ranked number 4 in West Virginia and South Florida frequently on top. “West Virginia was a field of dreams for the plaintiffs’ lawyers. We built it and they came.” West Virginia Judge Arthur Recht
Daubert & The Science Case
Daubert in the “Substantial Factor” Case
How Does the Legal Issue Get Framed? Beyond Federal Rule 702, most states (37) require trial judges to determine reliability of expert testimony before admission Delaware - Daubert New York – Frye as Daubert Pennsylvania – Frye New Jersey – Kemp California – general acceptance of novel scientific method
Recent Decisions Guinn v. AstraZeneca Pharms. LP, 2010 U.S. App. LEXIS 7076 (11th Cir. April 6, 2010)Seroquel Hopkins v. AstraZeneca Pharms. LP, 2010 WL (Del. Super. Ct., Mar. 31, 2010)Seroquel Jones v. AstraZeneca Pharms. LP, 2010 WL (Del. Super. Ct., Mar. 31, 2010)Seroquel Tucker v. SmithKline Beecham Corp., 2010 U.S. Dist. LEXIS (S.D. Ind. March 30, 2010)Paxil Tate v. AstraZeneca Pharms. LP, Docket No. L (N.J. Sup. Ct., Law Div. Feb )Seroquel Ratner v. McNeil-PPC, Inc., 2010 N.Y. Misc. LEXIS 138 (N.Y. Sup. Ct. January 9, 2010)Tylenol In re Accutane 2009 WL (M.D. Fla. Oct. 28, 2009)Accutane In re Bausch & Lomb, Inc., MDL No. 1785, 2009 U.S. Dist. LEXIS (D.S.C. Aug. 26, 2009); In re Bausch & Lomb, Inc., 2009 N.Y. Misc. LEXIS 3407 (N.Y. Sup. Ct. July 14, 2009) ReNu Kilpatrick v. Breg Inc., 2009 U.S. Dist. LEXIS (S.D. Fla. June 25, 2009)Joint Pain Pump Scaife v. AstraZeneca Pharms. LP, 2009 WL (Del. Super. Ct., June 9, 2009)Seroquel In re Neurontin Prod. Liab. Litig., 2009 N.Y. Misc. LEXIS 1777 (N.Y. Sup. Ct. May 15, 2009) Neurontin
Recent Decisions McCarrell v. Hoffman-La Roche, Inc., 2009 N.J. Super. Unpub. LEXIS 558 (N.J. App. Div. March 12, 2009) Accutane Blackwell v. Wyeth, 971 A.2d 235 (Md. 2009)Thimerosal Vaccine Gibson v. Sanofi-Aventis U.S., LLC, Civ. A. No. 3:07CV-192-S, 2009 U.S. Dist. LEXIS (W.D. Ky. 2009) Ambien Haller v. AstraZeneca Pharms. LP, 598 F. Supp. 2d 1271 (M.D. Fla. 2009)Seroquel In re Baycol Prods. Litig., 596 F.3d 884 (8th Cir. 2010); Ronwin v. Bayer Corp., 332 Fed. Appx. 508 (10th Cir. 2009) Baycol In re Fosamax Prods. Liab. Litig., 645 F. Supp. 164 (S.D.N.Y. 2009); In re Fosamax Prods. Liab. Litig., 647 F. Supp. 2d 265 (S.D.N.Y. 2009) Fosamax In re Zyprexa Prods. Liab. Litig., 79 Fed. R. Evid. Serv. (Callaghan) 774 (E.D.N.Y. 2009) Zyprexa In re Bextra & Celebrex Mktg. Sales Practices & Prod. Liab. Litig., 524 F. Supp. 2d 1166 (N.D. Cal. 2008) Bextra and Celebrex In re Human Tissue Prods. Liab. Lit., 582 F. Supp. 2d 644 (D.N.J. 2008)Human Allografts Perry v. Novartis Pharms. Corp., 564 F. Supp. 2d 452 (E.D. Pa. 2008)Elidel In re Accutane Prods. Liab. Litig., 511 F. Supp. 2d 1288 (M.D. Fla. 2007)Accutane
How Do You Know if You Have a Real Shot? Build the right team bridging law and science Hire the right consulting experts so you really know the disease science Hire the right consulting experts to know the product science (the company’s view may actually be unfairly defensive) Identify the biggest problem and opportunity for your case Make sure the opportunity “fits” your plaintiff pool Find your best case and best jurisdiction for a domino effect
General Causation: A Cautionary Tale Most plaintiffs’ lawyers today don’t start empty handed Most MDL courts are reluctant to end an entire litigation before it even gets off the ground A broad attack that fails can put your client behind on the stronger case-specific issues AND hurt you in later remand courts IF you do a general cause challenge, consider how you still tee that up in the context of your best individual cases OR limit a general causation attack to groups of cases
Your Fact Deposition Program: Laying the Daubert Landmines Fact Depositions “fix” the record and so frame the case for your later expert examinations Good fact depositions improve the odds of Daubert success Missed chances in the fact deposition program may prevent you from closing out plaintiffs’ experts on Daubert grounds Lawyers taking fact depositions should understand both the scientific and legal underpinnings of your Daubert strategy
Ensuring Daubert-Focused Depositions Focus on methodology – if methods fail then conclusions fail too Start with the specific case and work the general literature into that context – push the expert to speak to the details Emphasize the value of sound bites – academic debates are a waste of time Agree no one is “saving it for trial” – if you can win, there won’t be one Pick people who are relentless! A nonsensical answer many times is better than a nonsensical answer once!
The Daubert Hearing: Unmasking a Flawed Methodology
Expert Did Not Review Everything “At the time of her deposition, Dr. Peck had reviewed thirty-one items of medical literature... all of which had been provided to her by plaintiff’s counsel. “She confirmed that she had not conducted any of her own research to reach her opinions.... “She also acknowledged that she chose not to review data that had been supplied to her.... “She further acknowledged that she was not aware of any [clinical trials] at the dosages levels implicated by Ms. Scaife’s use of the drug.” Scaife v. AstraZeneca LP, 2009 WL at 8 (Del. Super.)
Expert Had No Reliable Methodology (Federal) “An expert, however, cannot merely conclude that all risk factors for a disease are substantial contributing factors in its development. The fact that exposure to a substance may be a risk factor for a disease does not make it an actual cause simply because the disease developed.” Guinn v. AstraZeneca Pharms. LP, 2010 U.S. App. LEXIS 7076 (11th Cir. 2010)
Expert Had No Reliable Methodology (NJ) “ Dr. Zonszein declared, without providing the why or wherefore, that all of these factors ‘substantially contributed’ to [plaintiff’s] development of diabetes, and that Seroquel® was the ‘straw that broke the camel’s back’, which, in Dr. Zonszein’s words, ‘is another way of saying precipitated diabetes....’ While uttering the phrase ‘straw that broke the camel’s back’ is not necessarily a magic phrase that requires the exclusion of an expert’s testimony, it does not, without further support, qualify as the ‘process’ required under New Jersey law.” Tate v. AstraZeneca Pharms. LP, Docket No. L (N.J. Sup. Ct., Law Div., Feb. 5, 2010)
Expert Failed to “Rule Out” Other Causes “ [T]hroughout her deposition testimony it was clear that [Plaintiff’s expert] employed no scientifically- driven course to rule out obesity or other known risk factors in Ms. Scaife as the sole cause of Ms. Scaife’s diabetes.” Scaife, 2009 WL at 24 Q: But you didn’t look to see what her eating habits were, what her sleeping habits were, what her exercise habits were, what her mood was, what her other drugs were? A: [...] I can’t look at things I don’t have. Q: You can’t assume that her exercise habits weren’t relevant just because you don’t know what they were? A: I can’t assume they weren’t relevant.
Expert “Ruled in” the Medicine Based Solely on Temporal Proximity “Throughout her deposition, Dr. Peck iterated over and over again, in various configurations, that the analysis leading to her differential diagnosis was simple and sequential: Ms. Scaife took Seroquel and then, in sequence, things began to happen to her – she gained weight; she developed diabetes.” Scaife, 2009 WL at 23
Expert Ignored Contrary Data “Dr. Cohen did not address [four contradictory] studies in her expert reports or affidavit, and did not include them on her literature reviewed list [...] This failure to address this contrary data renders plaintiffs’ theory inherently unreliable.” In re Bausch & Lomb, Inc., 2009 WL at 13 (D. S.C.) “He reaches his opinion by first identifying his conclusion... and then cherry-picking observational studies that support his conclusion and rejecting or ignoring the great weight of the evidence that contradicts his conclusion.” In re Bextra & Celebrex Mktg., 524 F. Supp. 2d at “Even more damaging... is her failure to grapple with any of the myriad epidemiological studies that refute her conclusion.” Rimbert, 80 Fed. R. Evid. at *45-46
Expert Did Not Address Differences in Dose “Plaintiffs have not identified, or even suggested, a threshold level of microbes necessary to actually cause an onset of a non- Fusarium infection.” In re Bausch & Lomb, Inc., 2009 U.S. Dist. LEXIS at *34. “[W]ith nearly all compounds there is usually a threshold that must be met before there is any harm.” In re Bextra & Celebrex Mktg., 524 F. Supp. 2d at 1180.
Expert’s Method Kept Changing “Dr. Cohen’s changing opinions, and willingness to abandon or qualify her opinions when faced with further facts, undermines the reliability of her opinions.” In re Bausch & Lomb, Inc., 2009 WL at 12 “Beyond the problems associated with the way in which Dr. Tulloch reached his opinions, the stark fact is that the grounds for his causation opinion have been a veritable moving target. And that is most troubling is that the underpinnings of his opinions have changed in direct response to AstraZeneca’s motion practice.” Haller v. AstraZeneca LP, 598 F. Supp. 2d 1271, (M.D. Fla 2009)
Expert Could Not Define the Mechanism Q: Do you know what Ms. Scaife’s level of insulin resistance was before [...]? A: [...] One doesn’t measure, can’t measure it. Q: And do you know what her level of insulin resistance was after[...]? A: [...] you can’t quantitate that, and it isn’t quantitative.” “Dr. Peck ultimately acknowledged that the exact mechanism [of alleged injury] is not well defined.” Scaife, 2009 WL at 11
Expert Overly Relied on Animal Studies “Dr. Jackson performed no calculations to determine whether the dose or route of administration of antidepressants to rats and monkeys in the papers that she cited in her report was equivalent to or substantially similar to human beings taking prescribed doses of Prozac.” Rimbert v. Eli Lilly & Co., 80 Fed. R. Evid. Serv. (Callaghan) 103 (D.N.M. 2009) “Drs. Smith and Kolb fail to address the disparity in the dosages Andreas Perry received and the dosages in the animal studies on which they rely.” Perry v. Novartis Pharms. Corp., 564 F. Supp. 2d 452 (E.D. Pa. 2008)
Expert Could Not Explain the Damage Formula Expert could not point to laboratory data showing a clinically relevant “change” Expert could not say plaintiff did not have disease before taking medicine – only points out that there is no proof plaintiff had disease before Expert could not say plaintiff would not have gotten disease at some point in relatively near future Expert could not point to evidence that use of medicine accelerated timeline to clinical disease If medicine was “straw that broke the camel’s back” expert could not say the camel wasn’t already broken
... Because There Wasn’t One Expert cannot state that plaintiff more likely than not will suffer a specific bad outcome of the underlying disease. Expert admits that while disease presents high relative risk of bad outcomes individual risks are very small Expert admits plaintiff’s pre-existing risk factors alone could cause the same future bad outcomes Expert admits that lifestyle and/or medicines used for multiple conditions can take plaintiff’s prognosis to baseline or better
News From the Trial Front
Recent Verdicts Baker (N.J. Sup. Ct. 2010) (Seroquel) -Verdict for Defendant Foust (Pa. Ct. Common Pl. 2010) (Prempro) -Verdict for Defendant Singleton (Pa. Ct. Common Pl. 2010) (Prempro) -Verdict for Plaintiff, $9.45M in compensatory and punitive damages Barton (Pa. Ct. Common Pl. 2009) (Prempro) -Verdict for Plaintiff, $78.7M in compensatory and punitive damages Stevens (Mont. Dist. Ct. 2009) (Zometa) -Verdict for Plaintiff, $3.2M in compensatory damages Kendall (Pa. Ct. Common Pl. 2009) (Prempro) -Verdict for Plaintiff, $34.3M in compensatory and punitive damages McCarrell (N.J. Sup. Ct. 2010) (Accutane) -Verdict for Plaintiff, $25.16M in compensatory damages Boles (S.D.N.Y. 2009) (Fosamax) -Plaintiff’s Motion for Mistrial granted Kilker (Pa. Ct. Common Pl. 2009) (Paxil) -Verdict for Plaintiff, $2.5M in compensatory damages
Lessons Not Learned Failing to Educate the Judge in Advance on Key Issues Keeps You on Defensive It Takes As Long or Longer to Defend a Case How Your Witnesses Talk Matters as Much as What They Say If Your Team is Less Likeable than Your Opponent’s, then You Are Too The Jury Does Not Have to Pay Attention
Lessons Learned Make Sure Your Team is Interesting and Understandable Have Your Experts Be the Teachers and Show don’t Tell Warning Claims Can Be Defended with Common Sense Push Evidentiary/Foundational Rules to Keep Out Prejudicial Evidence Raise Relevance and Other Objections to Deposition Designations to Narrow Case and Disrupt Case Flow Approach New Judges as New – Don’t Discard Previously Failed Ideas Before Trying Your New Audience