Dechert lawyers hit with $12K sanction in earplug case

The Dechert LLP offices in Washington, D.C., U.S. REUTERS/Andrew Kelly

(Reuters) - A senior trial lawyer from Dechert was hit with a $10,000 sanction on Friday for violating a judge’s order during her closing arguments in the third bellwether trial in the enormous multidistrict litigation over allegedly defective 3M Co’s combat earplugs.

U.S. District Judge Casey Rodgers of Pensacola, Florida, said that Dechert partner Kimberly Branscome had willfully violated an order she issued in an early-morning hearing outside of the jury’s presence. In that order, the judge said Branscome could not display a slide that contained a controversial statistic unless she told jurors that she was using the slide only to challenge the credibility of a plaintiff’s expert, not to suggest the truth of the crucial statistic.

The judge imposed an additional $2,000 sanction on Dechert partner Jay Bhimani, who had attended the early-morning hearing in which the judge restricted 3M’s use of the slide.

“Today these proceedings and the integrity of the court were degraded,” Rodgers said in a late-afternoon hearing on Friday as the jury deliberated, according to a transcript of the proceeding. “They were disrespected by the willful violation of my orders by 3M's counsel.”

Branscome and Bhimani did not respond to an email request for comment on the sanctions ruling. A Dechert spokesperson declined to comment. The Dechert lawyers told Rodgers during Friday’s proceeding that they did not deliberately disobey her order.

Less than an hour after the judge imposed sanctions on the Dechert lawyers, the jury delivered a verdict in favor of the plaintiff, army veteran Lloyd Baker. As my Reuters colleagues Nate Raymond and Brendan Pierson reported on Friday, jurors found that 3M failed to provide adequate warnings about the earplugs. The jury held 3M to be 62% liable for $1.7 million in damages. 3M previously lost the first bellwether trial in the MDL in April but won a defense verdict in a bellwether trial in May.

The sanctions against Dechert involved a study conducted on behalf of a 3M competitor in unrelated patent litigation. The competitor’s study found that the 3M earplugs were even more effective at reducing noise than 3M claimed in its labeling for the product. 3M advertised a noise reduction rate of 22. The competitor’s study reported a noise reduction rate of 23.

Rodgers ruled in May that the competitor’s report was inadmissible hearsay, granting a pre-trial motion in limine by Baker’s lawyers from Tracey Fox King & Walters; Clark, Love & Hutson; Seeger Weiss and Ciresi Conlin. The judge said 3M’s lawyers could use the report only in cross-examining Baker’s expert witnesses.

Plaintiffs lawyers learned last week that Branscome intended to use a slide in her closing argument that highlighted the competitor's study and its favorable conclusion about the earplugs’ noise reduction rate. On Thursday night, they told Rodgers they objected to the slide.

At Friday’s hearing before closing arguments, the judge said it seemed like 3M was using the slide to show jurors hearsay evidence to bolster its claims about the earplugs’ effectiveness. That was out of bounds, Rodgers told Dechert lawyer Bhimani.

Bhimani reminded the judge that the jury had already seen the chart displayed on the slide, during the cross-examination of one of Baker’s expert witnesses, and that the judge had instructed jurors only to consider the chart in evaluating the expert’s credibility.

The judge said she would allow the slide, with a caveat: “Here's the deal: If Ms. Branscome makes that clear in her closing that this is not being offered for the truth that the (noise reduction rate) was 23, then I'm fine with it. If not, it's not coming in,” she said.

Branscome, who was not at the early-morning hearing, displayed the slide as she challenged the credibility of Baker’s expert, arguing that he didn’t tell jurors about the competitor’s report. But then, according to the transcript, she urged jurors to use their “common sense” about the report’s conclusion that the earplugs had a high noise reduction rate. The lab that conducted the study, she said, was hired by a 3M competitor. Why would a competitor, she asked, hire an independent lab to issue an overly rosy report on the 3M earplugs?

As soon as Branscome asked that question, Rodgers called her to the bench, ordering her to tell jurors she wasn’t using the slide to show the truth of the reported noise reduction rate. Branscome told the jury the competitor’s report was hearsay, but her attempted fix didn’t satisfy the judge. Rodgers stepped in to instruct jurors not to consider the truth of the report’s conclusion.

As soon as the jury began its deliberations, Rodgers demanded an explanation from Dechert. The judge said her order was clear: 3M’s lawyers were supposed to tell the jury that they weren’t using the competitor’s report to establish the truth of its findings. “I had to call you up to the bench and ask you questions about why you did not make it clear to the jury,” Rodgers told Branscome.

Branscome said she had followed the order as she understood it. “I went straight to the jury and I said it's not being offered for the truth,” she said. “I wasn't trying to hide the ball. I genuinely thought I was conveying exactly what you had asked me to convey.”

Dechert’s rationale carried no weight with Rodgers, who said she was “shocked” at the flouting of her order. “In my mind, you did everything you could do to avoid doing the very simple thing, very clear directive that I gave you to do,” the judge told the Dechert lawyers.

“In 19 years on the bench,” she added, “I have never summarily sanctioned any lawyer for a willful disregard of one of court’s orders ... I can assure you that I take no pleasure in doing so now.”

Opinions expressed here are those of the author. Reuters News, under the Trust Principles, is committed to integrity, independence and freedom from bias.

Read more:

3M loses third trial in huge military earplug mass tort

3M wins U.S. trial alleging cover-up of earplug design

3M hit with $6 mln punitive damages by U.S. jury in first combat earplug trial

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Alison Frankel has covered high-stakes commercial litigation as a columnist for Reuters since 2011. A Dartmouth college graduate, she has worked as a journalist in New York covering the legal industry and the law for more than three decades. Before joining Reuters, she was a writer and editor at The American Lawyer. Frankel is the author of Double Eagle: The Epic Story of the World’s Most Valuable Coin.