A lot of articles are being written about the recent 5th Circuit decision ‘blasting’ prominent plaintiff attorney Mark Lanier. Here is the ABA’s story.
Here is the opinion: Aoki v. Depuy. The Court reversed a $502 million hip implant verdict (already reduced to $151 million due to Texas caps) and remanded the case for a new trial.
Lanier made too many references to defendants bribing Saddam Hussein’s regime and got way too cute with how he paid his experts.
My view is more nuanced than Lanier got blasted. Lanier won.
Lanier made inflammatory arguments reminiscent of the Mississippi jackpot justice days, defendants objected, the court overruled the objections and the 5th Circuit reversed the huge verdict because of the improper arguments. It’s hard to argue with the Court’s decision.
If you aren’t familiar with Lanier, check out my post reviewing a book about Lanier trying a Vioxx case. One of the things the book talks about is Lanier having an in-house jury consultant. Let that simmer.
When Lanier tries a case he is swinging for the fences. He is trying to inflame the jury into rendering the $500 million verdict.
When that’s how you roll, you are always going to get close to the line on permissible arguments. Sometimes, you are going to cross the line.
That’s not how I roll. But who’s to say I’m right? I can’t argue with Lanier’s results. And he’s a lot more entertaining at a CLE than me.
Those arguments that Lanier shouldn’t have made may have been the key to the $500 million verdict. Without them, he might have been an underdog to win or win anywhere close to that amount. And he would have known based on the work of his in-house jury consultant.
Say what you want about Mark Lanier. This wasn’t his first rodeo. He knows what he is doing.
I don’t view the opinion as being that bad for Lanier. He got cute. It worked, until it didn’t. But it’s not over. The 5th Circuit remanded for a new trial.
Everyone focuses on Judge Jerry Smith taking Lanier to task. But he doesn’t even get there until page 43 of 57. Most of the decision rejects defendants’ various arguments that would have resulted in a reverse and render. It’s a beautifully written opinion on products liability law.
Products cases are a murderers row for plaintiffs. There are trap doors everywhere. Research Daubert and preemption long enough and it looks like plaintiffs can’t get a case to the jury.
But this case was a decision for the jury. Plaintiffs navigated all the trap doors and it held up on appeal.
Did Lanier and his co-counsel think a $500 million verdict would be held up on appeal?
Whatever they thought, what happened wasn’t anywhere near the worst case scenario. I’m betting Lanier means it when he says he’s not upset about the ruling.
The pressure on Lanier and the other plaintiffs’ counsel at the retrial will be much lower than the first trial. I bet they aren’t sick today and the defendants and their lawyers aren’t celebrating.