Latest / Coopers' Code / $79,800,000 Johnson & Johnson Verdict: Proving a Product Case Without the Product

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$79,800,000 Johnson & Johnson Verdict: Proving a Product Case Without the Product · Coopers' Code

• 0:00
  Just because the evidence disappears doesn't mean the case
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  does. It was a long road to even prove
• 0:10
  that the medical device that was used in this procedure was this
• 0:14
  particular Ethicon stapler because there was no record in
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  the op report. Usually an operative report,
• 0:21
  you'll have a lot number or something you can scan and
• 0:25
  figure out what that device was that was gone.
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  The stapler was thrown away. And so ultimately how I figured
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  it out was the case was a product case, it was a hybrid
• 0:39
  case. It was also a medical
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  malpractice case. And so we sued the surgeon at
• 0:44
  surgery center. The cases are one on clarity,
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  right? And and that made a very
• 0:53
  complex, you know, medical device case and all these
• 0:58
  engineers and all this language, so simple, like really, you knew
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  that these are your specifications that you cannot
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  fire higher than this, but you're not doing anything about
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  it. And your own workers are telling
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  you that the jury will get it. Howdy and welcome to the show.
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  Cooper's code focuses on legal issues and notable
• 1:19
  practitioners. The stolen wisdom so we can all
• 1:22
  achieve the best results for our clients.
• 1:24
  I'm Miles Cooper and I'm very excited for this conversation in
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  the shopper's team partner of Abramson Smith, Walt Smith LLP
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  and one of California's most decorated plaintiffs, trial
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  wars. You're known for a number of
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  cases, but I think the one that stands out in in a lot of
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  people's mind is, is the Johnson Johnson verdict that you got.
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  For those who are not familiar, can you help us understand a
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  little bit about what that case was about?
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  Sure. And you know, people always want
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  to talk about it, right? And I just want to say something
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  to the young lawyers about that is in this profession, we define
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  ourselves by our verdicts and trials that are not one tend to
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  disappear. You see that on plaintiffs
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  listservs where, oh, there's a trial watch and so and so isn't
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  trial and, and they're talking about it.
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  And then if they lose, it goes into this ether.
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  I have certainly had cases where I worked just as hard and I felt
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  that I did as good of a job, if not better as I did in that
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  Johnson and Johnson case. But I lost and and losses are
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  devastating, but they don't erase the good work that we do
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  while trying these cases. And I just wish that we defined
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  ourselves by that work more so than the number on that verdict
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  form. Having said that, of course,
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  verdicts are important then it's they're important for many
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  reasons, including insurance adjusters and opposing counsel
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  and, and how you're viewed going forward as a lawyer and how
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  people negotiate with you, right.
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  That case was, it was obviously there's a lot of our cases are
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  about accountability. It was a medical device that was
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  used on my client and caused her very serious injury.
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  The medical device was a hemorrhoid stapler.
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  So just like a linear stapler that we used to staple papers,
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  but it was a circular stapler. So there were staples all around
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  a circle and essentially it would be inserted into the
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  rectum and it would excise a ring of tissue and staple it
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  away. So it's not a necessary medical
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  device. This procedure was performed by
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  surgeons before the stapler just with, you know, a suit sutures.
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  But it made it easier, was supposed to make it easier, but
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  it it, it seriously injured my client.
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  So we sued Johnson and Johnson, It's subsidiary Ethicon that
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  actually made the stapler and a couple other subsidiaries for
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  different reasons. The problem with the case was we
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  didn't have the product in this product case and tends to
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  present a problem that the defense can certainly lean into
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  and say how are you going to prove your case when you don't
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  have a product, but you know, because just because the
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  evidence disappears doesn't mean the case does.
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  So it was a long road to even prove that the medical device
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  that was used in this procedure was this particular Ethicon
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  stapler because there was no record in the op report.
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  Usually an operative report, you'll have a lot number or you
• 5:25
  know, something you can scan and figure out what that device was
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  that that was gone, the stapler was thrown away.
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  And so ultimately how I figured it out was ordering, getting all
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  the packing lists for all the staplers that were shipped to
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  the to the surgery center and then comparing that timeline and
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  the particular staplers with all the surgeries that happened at
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  that surgery center and trying to line them up.
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  You must have had the HIPAA discovery fight of your life.
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  You know, you would think that except the case was against, it
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  was a product case, it was a hybrid case, it was also a
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  medical malpractice case. And so we sued the the surgeon
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  and and the surgery center. And I will say that they were
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  happy to provide information in some regards.
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  Yeah, exactly. Well, point over there.
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  So obviously everything was redacted and properly done and,
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  and really we just needed the dates of the surgery to to try
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  to line it up and and to say that there was any agreement as
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  to what happened and that that just didn't happen.
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  And so we had to tell the jury about all these surgeries and we
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  had to tell them about all the staplers that were shipped.
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  And ultimately, I guess I proved that it was the one when I think
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  about that case and it was a punitive damages case, there was
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  a compensatory damages of about 10 million and then 70 million
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  was punitive damages. And it was certainly a highlight
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  of my career to argue punitive damages.
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  And I didn't know that I would ever get to do that.
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  And a lot of lawyers don't. It was.
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  And that's when our community of trial lawyers really helps
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  because I got on a phone, I called Jim Boswick.
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  Jim Boswick obviously is one of the best lawyers in the nation.
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  He put me in touch with someone in, I want to say Arizona, who
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  argued punitive damages and, and we just talked for an hour and
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  and that was that was wonderful. I really do love our community
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  and and how we're there for each other when need be.
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  So when you think of punitive damages cases and product cases,
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  we're taught to we're going to take all the apex depositions
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  and and get the executives and prove that there was knowledge
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  right and a cover up. And and certainly that is very
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  exciting and you want to do that.
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  But in a particular case, what I think was very impactful is I
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  went down the chain because there was what was wrong with
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  the stapler was, well, if you staple a bunch of papers
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  together, you know, a lot of things can go wrong, right?
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  And then you got the staple that's not fully formed or so a
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  lot of things can go wrong. And, and now you're doing that
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  inside a person and that's a lot of things can go wrong there.
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  So what Ethicon knew was that there had to be a particular
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  force to fire that cannot be exceeded, right?
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  Because if if it's really difficult for a surgeon to fire
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  a stapler, what are they going to do?
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  What do you do when you can't? When you can't stay?
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  Bang on it. You or you do it again, right?
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  And that's what was happening. So we didn't have the stapler,
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  but we could show through testimony of the nurses, they
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  tack the experts, the doctor that it was difficult to fire
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  it. There was some issue.
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  And when I started deposing the subject matter experts, right,
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  the engineers from the company, from the manufacturer, there was
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  this party line of we had control measures, right?
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  It's all control measures. This, this, this language that
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  is used and control measures meaning they, what were they
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  doing? They were measuring the force to
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  fire of these staplers as you should because it can't exceed a
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  certain. So I took the deposition of a an
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  assembly line manager. I came very close to going to
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  the assembly line, but that ultimately wasn't necessary.
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  So. And this assembly line manager,
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  he says, yeah, we the assembly workers, measure this force to
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  fire for every single stapler, and there's a record of it.
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  I said, OK, what do you do when the force to fire is too high?
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  Have you ever thrown out any staplers?
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  No, I'm sorry. You're measuring the force to
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  fire, but then you don't do anything with the measurements I
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  said. Did that seem strange to you?
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  Well, why are you wasting your time on these measurements if
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  you're not doing anything with them?
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  Did it ever occur to you that that was weird?
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  And he said, you know, this assembly line worker, this woman
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  came up to me one day and said, why are we doing this?
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  I'm spending this time firing these staplers and measuring the
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  force to fire, but we're not doing anything with them.
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  And that was for me, this this gas, this moment of if she could
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  understand, the jury is going to understand it because the cases
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  are one on clarity, right? And and that made a very
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  complex, you know, medical device case and all these
• 11:16
  engineers and all this language so simple, like really, you knew
• 11:23
  that these are your specifications that you cannot
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  fire higher than this, but you're not doing anything about
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  it. And your own workers are telling
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  you that the jury will get it. Some of the lessons I'll tell
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  you I learned from that case, not just as a lawyer but as a
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  judge later on, was obviously I had prior other similar
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  incidents, right? So they were complaints that the
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  manufacturer had received. These complaints were usually
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  from the surgeons and you know, from all over the world that it
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  was difficult to fire. And I remember taking the
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  deposition and it was like a four day deposition of their
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  PMQ. And I was going through every
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  complaint and asking on such and such date.
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  You know, Ethicon learned that XYZ happened and even I think
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  the lawyer who didn't represent a manufacturer, I said, we're
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  really doing this with every complaint.
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  And I said we're really doing it with every complaint.
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  So then this video is being shown to the jury and after
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  maybe a day of it, we get a juror note.
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  And it says after all these complaints, does J&J, does
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  Johnson and Johnson really want to go on?
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  Why are we here essentially? And boy, did that back.
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  I mean, at first, obviously as a trial lawyer, my reaction was,
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  oh, yes, this is great. Well, you know, I think there
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  was a motion for mistrial or whatever was ultimately that was
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  a huge point on appeal, right? Because this juror made-up her
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  mind and, and I used to like questions from jurors because
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  you get a window into what they're thinking.
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  I can maybe reshape my case, my, my questioning based on that.
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  I know what they need to prove, what you know, what I didn't
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  think about. And and after that I said I
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  never want to see that again because that is such a can of
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  worms. Were you able to preserve the
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  the case on appeal? Yes.
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  So I mean, certainly the juror note wasn't, wasn't ultimately a
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  big deal. The Court of Appeal didn't care
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  about it that much. But it, it, the verdict was
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  reduced slightly, the punitive damages, even though, you know,
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  I stayed within and I asked for 70 million, which was what, 1%
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  under 1% of the net worth and all that.
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  And by the way, the jury said we only gave that money because
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  that's what you asked for. We would have given basically
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  anything you asked for. And that was another lesson that
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  that I learned from that case is I, I wouldn't have asked for
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  more because you're limited on punitive damages, right?
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  But, but on compensatory damages, I would have asked for
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  more. And you know, this was also back
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  in the day, the verdicts that have been coming out now are
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  much, much higher in many cases in LA especially.
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  So I'll tell you a funny story about that case.
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  So I didn't get 998 costs. Because.
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  You're like, did you? Was your 998 more than $80
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  million? No, no, it was not.
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  I was so diligent with that 998 offer, wanted to make sure to
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  lay out everything that was known by that stage of
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  litigation, and I laid it all out.
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  And so the argument from opposing counsel was that they
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  it was not reasonable for them to accept the 998 because it
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  would signal that they're admitting all these things.
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  Because it was in the body of the 998.
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  It was in the body of the 998, but it was phrased as what
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  plaintiff believed. I see they had.
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  So anyway, since then I keep my 99 eights very sterile, and then
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  I sent the letter with the 998 laying out what is known to the
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  other side. That is of the various wisdom
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  that is coming forward, you know, 99 eights are always, I
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  feel like every year when I sit down to listen to what's new and
• 16:22
  toward on trial, there are always cases on 9/9 eights.
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  There's not a case on that as far as I'm aware.
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  And and that is a fabulous pointer.
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  Yeah, that was I I just think it is so funny that I managed to
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  not be, not, not get my 998 costs on an $80 million verdict.
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  Yeah. Any other like clutch points
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  wisdom that you'd want to share from that particular case?
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  It was the whole binder of complaints that we did not for
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  reasons that aren't important now that we weren't able to get
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  in in our case. And opposing counsel was very
• 17:08
  happy about it. Obviously in her direct
• 17:12
  examination of her witness, she goes too far and she starts
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  talking about, oh, well, you reviewed this and you didn't see
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  this in the complaints. So I get up, but I take this
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  binder and go, these are the complaints you review, right?
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  Obviously the door. She just opened the door, swung
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  it wide open. Wow.
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  And and, and opposing counsel goes, your Honor, this is our
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  case and this was just one of the example, not really a
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  teaching moment for me, but it but it kind of like you have to
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  be so aware with your own witnesses.
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  You get so comfortable because you know that they will say
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  anything you want them to say, right?
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  And so and, and, and she went too far with this witness and
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  open the door. And then there was another
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  binder of complaints that I would have never gotten in.
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  I think both important in terms of learning what not to do when
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  you're questioning witness and also being quick on your feet to
• 18:12
  be aware that that they have opened the door for you.
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  I I just remember I jumped up. It was so exciting.
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  Did you get a nod from the judge like the yeah, it's it's go
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  time, Yeah. I I believe so.
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  There were, there were few. We had a great judge too.
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  She was very smart. She is very smart.
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  She's on a Court of Appeal now. Well, as we kind of come into
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  the final, final moments, are there other things you would
• 18:38
  want to share with our listeners?
• 18:42
  One of the important lessons I learned early on, you know that
• 18:47
  there's that saying dress for the job you want, not the job
• 18:51
  you have. That in trial it's the opposite
• 18:56
  of that. You try the case that you have,
• 18:58
  not the one you wish you had. So which means deal with the
• 19:05
  facts, the bad facts, the, the, the good, the bad and the ugly,
• 19:09
  right and, and face them head on.
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  Because too many times we and it's not just wishing the bad
• 19:22
  facts away, but you've lived with a case for a while and so
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  you know, you know the truth and and you know your client is
• 19:30
  really injured. And you just forget that the
• 19:36
  jury doesn't know that, that they haven't lived with this
• 19:39
  case for three years. And they need to put things in
• 19:42
  perspective and understand why your client is injured, even
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  though you know, this was a three mile an hour hit and she
• 19:53
  had pre-existing back injuries and so forth.
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  So you believe your client and you need to explain to the jury
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  why you believe your client because there's no reason that
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  they should. They haven't lived with it for
• 20:10
  three years. So I I would say that the
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  biggest thing is the biggest advice is that I can give is to
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  face the bad facts and organize them in such a way.
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  That the jury understands them just like you do.
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  And as far as what I can take from being on the bench and
• 20:35
  being a lawyer, well-being a lawyer, then being on the bench,
• 20:39
  then being a lawyer again, it was such, by the way, an
• 20:42
  incredible experience. And it was kind of like watching
• 20:47
  everything 30,000 feet, having almost an out of body
• 20:52
  experience, right? You're up there and you're
• 20:54
  getting to observe and you see so much more than than you see
• 20:59
  as a lawyer. When I started practicing, the
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  advice that was very popular was tell him and then tell him what
• 21:09
  you told him and then tell him again or something like that,
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  right? I remember that.
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  And I'll say that that that is no longer the case because I
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  think because we have this instant gratification mindset
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  from social media, from being able to GPS something and get
• 21:29
  somewhere, right. Everything is so quick for us in
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  this world that the jury doesn't want you to explain things over
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  and over. They're also very smart.
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  So probably everything that we do in front of a jury can be
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  cut. You know 70% be short and sweet
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  and and they will get it. I guess the the follow up
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  question that I have is do you know what 70% to cut?
• 22:04
  Well, yeah, cut repetition. Yeah.
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  If you can't explain your case in simple ways, then you don't
• 22:13
  understand your case. So you have to get to the point
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  where you can explain it in simple terms the way you would
• 22:20
  to a non lawyer. I don't want to say a 12 year
• 22:23
  old because they find that what people say that that that that's
• 22:26
  offensive to the jurors who are very smart.
• 22:29
  What I found was that jurors don't want to be there
• 22:35
  initially. We all know that.
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  But they also tend to appreciate our system once they're done
• 22:44
  with the jury duty and they are grateful for it.
• 22:49
  As a judge, what I thought, what the mentality that I had towards
• 22:55
  what I was doing there was, it was like selling a product.
• 23:00
  And the product I was selling was justice and everyone was my
• 23:05
  customer. It was the lawyers in the
• 23:07
  courtroom, the jurors, observers, witnesses, and it was
• 23:15
  very important to me to have them believe in the rule of law,
• 23:22
  the way I believed in the rule of law when I moved here and
• 23:25
  when I saw how this country functioned.
• 23:29
  As lawyers, when we're in the courtroom, especially when
• 23:33
  there's a jury, especially when they're witnesses or anyone
• 23:38
  watching, we have to remember that we are the officers of the
• 23:43
  court, that we represent the system of justice.
• 23:50
  And you are the face. You know, we say this to
• 23:55
  corporate representative. You are the face of the company.
• 23:58
  As lawyers, we are the face of this justice system.
• 24:03
  And if there are lawyers who are calling each other names or are
• 24:09
  being rude to witnesses or yelling or being disrespectful,
• 24:14
  that's the experience that jury's going to have, and that's
• 24:17
  how they're going to view our justice system.
• 24:21
  That was a different perspective for me watching it from the
• 24:25
  bench. And I did feel that the civility
• 24:31
  in a courtroom is declining, and we have to work really hard to
• 24:36
  change the public perception so that people believe in the rule
• 24:41
  of law again. That seems particularly
• 24:44
  challenging when the commander in chief is using F words in
• 24:51
  tweets related to diplomacy. It's been very discouraging for
• 24:57
  me on many levels, as a woman, as as a mother, as a Ukrainian.
• 25:06
  You know, when in 2022 when the war with Russia started, or
• 25:12
  well, I guess it started in 2014 with Crimea, but in 2022, when
• 25:18
  Russian troops entered Ukraine and this country was up in arms
• 25:25
  and really helping again, I, I would have found myself a proud
• 25:32
  American. And now, of course, our
• 25:39
  commander in chief president seems to favor dictators over
• 25:47
  democratic leaders, and that's very discouraging.
• 25:52
  And sometimes when you watch the news, you feel so helpless,
• 25:55
  right? And, And So what do you do about
• 25:57
  it? And it's, you know, I don't have
• 26:00
  the answer for it, but but I get my hope from countries like
• 26:07
  Hungary right now. And we, we do it, you know, one
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  step at a time. And you can at least control
• 26:16
  your actions as a lawyer and how you're perceived.
• 26:20
  And we can't lose hope. When I get the impression, and
• 26:24
  you can correct me if I'm wrong, is the way that that you channel
• 26:28
  anger or quiet rage is into your cases and into your work?
• 26:33
  That's true. I, I have to say that I've
• 26:37
  always worked best under pressure.
• 26:42
  And that might be, again, from the type of education that that
• 26:46
  I received. And I, I, I embrace it and, you
• 26:51
  know, I don't really get angry anymore.
• 26:54
  And being on the bench was almost like a meditation
• 26:59
  experience because I couldn't allow myself to show anger or
• 27:09
  disappointment or, you know, it was it was a different type of
• 27:16
  responsibility. But there's nothing wrong with
• 27:19
  taking anger and using it to your advantage in your work and
• 27:27
  and being fueled by it. Just as long as you keep your
• 27:32
  civility right and be a good person and stay kind.
• 27:39
  Yeah. Was there anything else that you
• 27:42
  think we should touch on? I'll say I am really excited
• 27:47
  about this new chapter in my life.
• 27:51
  I finally get to practice law the way I want to, how I want
• 27:57
  to, with the people I want to. You know, my partners are my
• 28:03
  friends. They certainly are exceptional
• 28:07
  lawyers, but they're also my friends.
• 28:09
  And so we really enjoy talking about cases, working on cases
• 28:15
  together, RJ, Walt Smith and Jeff Smith that will, you know,
• 28:24
  get together not to talk about work.
• 28:27
  And then we end up doing that and having a great time and it's
• 28:33
  very refreshing. You certainly landed on your
• 28:37
  feet at a very good place. I've been very lucky in my
• 28:42
  career with most people I worked with.
• 28:45
  You know, there is one thing I, I will say, you asked about
• 28:50
  advice for young lawyers. A lawyer told me once before
• 28:55
  trial, you know, the facts are what they are and evidence is
• 29:00
  what it's going to be essentially.
• 29:04
  And then the jury will decide. And I remember that.
• 29:08
  And I remember thinking, well, why are you here?
• 29:12
  Why are we here? Why don't we just give the jury
• 29:15
  a stack of documents and transcripts to read and then
• 29:19
  they'll figure it out. Such a huge part of what we do
• 29:25
  is taking the facts and organizing them in a manner that
• 29:32
  is easy for the jury to understand, right?
• 29:35
  That that concept of argue the facts.
• 29:39
  It is so important how how the facts come in, how they trickle
• 29:44
  in. That's the fun part about being
• 29:47
  a lawyer is telling a story. How do I you?
• 29:52
  There are 100,000 ways of telling the story.
• 29:55
  What is the best one? And it really matters.
• 29:59
  Yeah, well, I look forward to seeing how you tell those next
• 30:04
  stories and next chapters in the trials to come.
• 30:08
  So welcome back to the side of of the bench.
• 30:12
  Happy to be here. Yeah.
• 30:14
  Thank you. And thanks, thanks, thanks for
• 30:16
  for coming on the show. Thank you, It's been a pleasure.
• 30:19
  And thank you for listening today.
• 30:21
  Please e-mail us at podcast at Cooper's dot Law with questions,
• 30:23
  comments, feedback and suggestions for who we should
• 30:26
  have on the show. Like what you heard?
• 30:28
  Share us with a colleague and leave us a five star review on
• 30:30
  your podcast platform of choice. To all of you doing justice out
• 30:34
  there. Happy hunting.