Judge sanctions Dechert lawyers for 'willful disregard' of her order on impeachment evidence
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A federal judge overseeing 3M earplug litigation in Pensacola, Florida, has sanctioned a Dechert lawyer $10,000 for showing jurors a slide on the devices’ effectiveness in closing arguments without making clear that the information could be considered for impeachment purposes but not for truthfulness.
U.S. District Judge M. Casey Rodgers of the Northern District of Florida sanctioned Dechert partner Kimberly Branscome in a courtroom hearing Friday, report Law.com and Reuters, which posted the transcript.
Rodgers also imposed a $2,000 sanction on Dechert partner Jay Bhimani, the lawyer she had warned about the conditions of using the slide.
The lawyers were defending 3M, a multinational conglomerate corporation, in multidistrict litigation contending that its combat earplugs were defective.
Rodgers said Branscome had shown the slide to jurors without making clear that its earplug test results were not being offered as truth after she warned Bhimani that it could not be used for that purpose. Rodgers had said the slide could be used only to impeach an expert witness.
“But in 19 years on the bench, I have never summarily sanctioned any lawyer for a willful disregard of one of the court’s orders in the courtroom during a proceeding, much less a trial,” Rodgers said. “I can assure you that I take no pleasure in doing so now.”
Moments later, Rodgers told Branscome to get off her phone. Branscome apologized and said she was being asked about a verdict.
“You have more important things to listen to,” Rodgers replied.
Jurors in the bellwether trial found Friday that the plaintiff, a service member, sustained $1.7 million in hearing loss damages, and that 3M was 62% responsible, according to prior coverage by Law360. The verdict was delivered shortly after Rodgers imposed the sanctions.
Rodgers had told Bhimani in a hearing outside the presence of the jury Friday morning that the slide could not be used in closing unless Branscome makes clear that it is not being used to suggest that its information was true.
The slide had findings on the noise reduction level of 3M earplugs from a study conducted in unrelated patent litigation for a 3M competitor. The study found that the earplug noise reduction rating was 23, which was even better than 3M’s claimed rating of 22.
“Here’s the deal,” Rodgers said. “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.”
“Understood,” Bhimani replied.
Rodgers had ruled in May that the report could not be admitted as evidence, but it could be used to cross-examine the plaintiff’s expert witnesses. Bhimani had pointed out the judge’s ruling in the hearing on Friday morning.
“I think your honor has already instructed the jury that this document was not coming in for the truth, but it may be considered for its impact on [the expert’s] opinion,” he said.
Branscome used the slide at closing as she told jurors that the evidence is inconsistent with the opinion of the plaintiff’s expert. An independent laboratory gave the earplugs a noise reduction rating of 23, but the expert “didn’t show it to you at all,” Branscome said. When the report was brought out on cross-examination, Branscome said, the expert said the ratings are always “jacked up really high,” and the lab is famous for such ratings.
But the lab was hired by a competitor, Branscome said. “And just use your common sense. Do you think a competitor hired [the lab] to get a high [noise reduction rating] on a competitor’s product?”
At that point, Rodgers interrupted and called a bench conference. Branscome told the judge that Bhimani had told her about the slide discussion that morning, and she was using the slide in the context of the expert witness.
Rodgers said Branscome was talking about the noise reduction rating of 23 in terms of the truth. Branscome said if it wasn’t clear that she was raising the issue only to challenge the expert, she would clear it up.
When closing arguments resumed, Branscome said the testing from the lab was hearsay, and jurors could consider it “not for the truth of the testing but for the credibility that it has to the plaintiff’s case on whether their experts relied on it, whether they told you about it.”
Rodgers interrupted to tell jurors that Branscome was correct, and she wanted jurors to understand that they couldn’t consider the noise reduction rating of 23 for the truth.
After jurors left for deliberations, Rodgers began to discuss the use of the slide. She asked both lawyers about what Bhimani had told Branscome.
“Were you ever told by Mr. Bhimani that you had to—that, as a condition of using this slide, you had to tell the jury that this NRR of 23 was not being offered for the truth, as an officer of this court?” Rodgers asked.
“You don’t need to remind me, your honor,” Branscome replied.
“I’ll remind you as many times as I feel I need to remind you, so that it’s very clear,” Rodgers said.
Branscome said she didn’t remember the verbatim words that Bhimani used, but her understanding was that the slide had to be used as an attack on credibility.
“Well, then my ruling was not adequately conveyed to you, it doesn’t sound like,” Rodgers said. “I’m assuming you didn’t read the realtime.”
“No,” Branscome replied. “But I have to say, your honor, even hearing you read the realtime, I would have interpreted it the same.”
“Disagree. Disagree,” Rodgers replied.
Rodgers recessed the hearing until evening. At that point, Branscome said she thought it wasn’t her role to instruct the jury on the law on hearsay, and she was supposed to make clear that the slide was part of an attack on the credibility of the expert witness. There was no willful violation of Rodgers’ order, she said.
Rodgers noted that the slide had said, “NRR is 23” in boldface and larger type. Yet Branscome was vague and ambiguous when she told the jury that they could not consider the testing as truth, Rodgers said.
“Ms. Branscome, you never once told the jury that you weren’t arguing the NRR of 23 for the truth,” Rodgers said. “Frankly, I was shocked when you did not make that clear.”
A Dechert spokesperson said the law firm had no comment.