Trials & Litigation

11th Circuit vacates sanctions against Dechert partners, orders new hearing

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A federal appeals court has vacated sanctions against two Dechert partners and ordered the judge who imposed the punishment to consider whether the attorneys subjectively engaged in bad-faith conduct.

The 11th U.S. Circuit Court of Appeals at Atlanta said the trial judge failed to provide the lawyers with adequate notice before imposing monetary sanctions and used the wrong standard in assessing their conduct. The opinion was written by Judge Barbara Lagoa, who was said to be a potential U.S. Supreme Court nominee during the Trump administration.

The sanctioned partners are Kimberly O. Branscome, who was ordered to pay $10,000, and Jay L. Bhimani, who was ordered to pay $2,000. The lawyers were defending 3M, a multinational conglomerate corporation, in multidistrict litigation contending that its combat earplugs were defective.

Law360 and Reuters have coverage of the appeals court’s May 31 unpublished opinion.

The sanctions were imposed because of the use of a slide based on a study on the earplug effectiveness that was not admitted as evidence. Dechert lawyers were, however, allowed to use the study in the cross-examination of expert witnesses.

U.S. District Judge M. Casey Rodgers of the Northern District of Florida had informed Bhimani about the conditions for use of the slide, which Branscome showed to jurors during closing arguments. Branscome said Bhimani had passed the information along to her.

The study, conducted by a 3M competitor, found that the earplug noise reduction rating was 23, which was even better than 3M’s claimed rating of 22.

In her June 2021 decision, Rodgers found that Branscome showed the slide to jurors without making clear that the information could not be considered for the truth of the study.

In her closing, Branscome displayed the slide and asserted that an independent study was inconsistent with an expert’s opinion, and that “an independent laboratory got a 23.”

At that point, Rodgers asked Branscome to approach the bench. Rodgers said Branscome didn’t connect the rating to the expert, and Branscome must “clear this up to my satisfaction or I’m going to clear it up.” The jury “need[s] to know they cannot consider the 23 for the truth of the results of that test,” Rodgers said.

Here is what Branscome then told the jurors: “You heard from Judge Rodgers that the testing from Michael & Associates falls into a unique evidence category; it’s called hearsay. And what that means is you can 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. … And so how does that fit in the framework if you’re evaluating Mr. McKinley [an expert witness]?

“It comes into play if you ask yourself, if he reached the opinion that the Combat Arms Earplug Version 2 was defective, but he didn’t tell you about evidence that’s contrary to that opinion, does that call into question the basis for his conclusion?”

Rodgers then interjected, stating, “Ms. Branscome is absolutely correct in the way she’s described that to you, but I want to make sure you understand. You may not consider the NRR of 23 on the Michael study for the truth.”

After jurors began deliberations, Rodgers said Branscome’s clarification did not ameliorate her willful violation of the court’s order.

“Right now, my intent is to enter monetary sanctions against one or both of you for this violation of my court order,” Rodgers told the Dechert lawyers.

Seven hours later, Rodgers asked Branscome and Bhimani to explain why sanctions shouldn’t be imposed. The lawyers said they didn’t intend to violate Rodgers’ order, and they thought that Branscome’s clarification complied with the directive.

Rodgers said the lawyers did everything to avoid her very clear directive and imposed sanctions for willful misconduct under her inherent authority.

The 11th Circuit said rather than considering whether the lawyers’ conduct was willful, Rodgers should have considered their subjective bad-faith intent. The judge also failed to inform the lawyers the precise rule or standard that they allegedly violated, the appeals court said.

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