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NORTHERN DISTRICT OF TEXAS

Last year this report for the very first time flagged a federal court as a stand-alone Judicial Hellhole. Largely because of U.S. District Judge Rodney Gilstrap’s “seemingly willful” and “disgraceful distortion” of the

Norther District of Texas

False Claims Act as he presided over a meritless lawsuit that nonetheless resulted in the largest verdict of its kind in history, the Eastern District of Texas became infamous. A year later, as that preposterous FCA verdict is on appeal to the U.S. Fifth Circuit, one of Judge Gilstrap’s federal trial court colleagues has singlehandedly managed to focus much negative attention on Northern District of Texas.

EVIDENTIARY RULINGS FAVOR PLAINTIFFSLike those of Judge Gilstrap in the 2015 FCA lawsuit, U.S. District Judge Ed Kinkeade’s plaintiff-friendly and highly prejudicial evidentiary rulings in a trial that began in January of 2016 led to a nearly half-billion dollar jury verdict in a bellwether case in multidistrict litigation (MDL) involving allegedly defective hip prosthetics. As reported by Law360, the $498 million verdict — divided among five individual plaintiffs and their attorneys — includes about $140 million in compensatory damages and $360 million in punitive damages. The MDL comprises nearly 9,000 additional claims. Judge Kinkeade’s evidentiary rulings were politely characterized by defense counsel as “unusual.” To be less polite but more accurate, they were cravenly irresponsible as the judge effectively rubber-stamped plaintiffs’ lawyers’ requests to adduce so-called evidence about completely unrelated devices (pelvic mesh), past conduct by wholly separate business units of one defendant company, and a nearly-decade old non-prosecution agreement entered into by that defendant, none of which was remotely germane to the hip prosthetic allegations at hand. It’s clear from the jury form that introduction of such prejudicial evidence had the effect plaintiffs’ counsel desired: it confused and ultimately inflamed jurors. For example, with respect to four of the five plaintiffs, the jury specifically found that one defendant had no prior knowledge of any purported defect in the devices yet, contrary to law, insisted it pay $160 million in punitive damages. The hip-prosthetic defendants appealed to the Fifth Circuit, asking a three-judge appellate panel to delay additional MDL trials before Judge Kinkeade until it reached a decision on their appeal. But a third hip-replacement bellwether trial was allowed to get underway in September and, in early-December 2016, the jury reached a record $1.04 billion verdict, only $30 million of which were for compensatory damages. The rest were punitive damages. But Law360 reports the defendants will not discuss a possible settlement of the MDL until the Fifth Circuit weighs in.

Like those of Judge Gilstrap in the 2015 FCA lawsuit, U.S. District Judge Ed Kinkeade’s plaintiff-friendly and highly prejudicial evidentiary rulings in a trial that began in January of 2016 led to a nearly half-billion dollar jury verdict in a bellwether case in multidistrict litigation (MDL) involving allegedly defective hip prosthetics.

As reported by Law360, the $498 million verdict — divided among five individual plaintiffs and their attorneys — includes about $140 million in compensatory damages and $360 million in punitive damages. The MDL comprises nearly 9,000 additional claims.

Judge Kinkeade’s evidentiary rulings were politely characterized by defense counsel as “unusual.” To be less polite but more accurate, they were cravenly irresponsible as the judge effectively rubber-stamped plaintiffs’ lawyers’ requests to adduce so-called evidence about completely unrelated devices (pelvic mesh), past conduct by wholly separate business units of one defendant company, and a nearly-decade old non-prosecution agreement entered into by that defendant, none of which was remotely germane to the hip prosthetic allegations at hand.

It’s clear from the jury form that introduction of such prejudicial evidence had the effect plaintiffs’ counsel desired: it confused and ultimately inflamed jurors. For example, with respect to four of the five plaintiffs, the jury specifically found that one defendant had no prior knowledge of any purported defect in the devices yet, contrary to law, insisted it pay $160 million in punitive damages.

The hip-prosthetic defendants appealed to the Fifth Circuit, asking a three-judge appellate panel to delay additional MDL trials before Judge Kinkeade until it reached a decision on their appeal. But a third hip-replacement bellwether trial was allowed to get underway in September and, in early-December 2016, the jury reached a record $1.04 billion verdict, only $30 million of which were for compensatory damages. The rest were punitive damages. But Law360 reports the defendants will not discuss a possible settlement of the MDL until the Fifth Circuit weighs in.

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