Tuesday, June 18, 2013

Time is running out in NY to file a suit: File or not? (Part Two of x)

I am reading the Kransky vs Depuy trial transcripts and making notes which were interesting for you to review.  My objective is   to answer the question:  Should I file or not.

Part one of x can be found here:  http://www.mydepuyhiprecall.com/2013/06/time-is-running-out-in-ny-to-file-suit.html.  My questions are noted in that post.


Topics that I found to be interesting in the pre- trial discussions between the judge and the attorneys follow.

1. Punitive damage discussions
The initial discussion  centered around the punitive damages and  the conflict of law issue.  That is:  Which state law should  govern the punitive damages in this case?  The defendants presented 5 states which were involved in this matter. The defendants suggested NJ and Indiana as the presiding or governing law.  Why:  LOW CAPS ON THE  punitive damages.

You can find more information on the difference between punitive vs compensatory damages here: http://www.mydepuyhiprecall.com/2013/03/punitive-vs-compensitory-damages-vs.html

NJ (location of J and J, the parent co of Depuy)  NJ  punitive damage cap is $350K or  3xs the compensatory damages.

Indiana, the location of Depuy  Indiana had  $50K or  3x compensatory damages.

So, lets just examine this.  Had the judge ruled that either NJ or Indiana prevailed as the guideline for the punitive damages, Kransky inevitably would have gotten a cap of 3xs the base damage which if I recall correctly was the cost of the revision.  In my case, that cost a few hundred thousand or so.  So the cap would have been $600K vs that which was ultimately awarded:  $8M or so! (You get the drift. My numbers may be off but the concept is ok.)

The plaintiffs, on the other hand argued that Montana  law should prevail because the plaintiff lives there. The injury occurred there  and the defendant had sales reps there.  Their  punitive damages are $10M or up to 3% of the defendants net worth.  Yikes!

The wrong doing occurred in NJ and Indiana.  

So, we know in retrospect  that plaintiffs won that motion. I suppose you can argue for anything as long as you can dig up a precedent someplace to support your argument.

2. Other items of interest:

There were 50 M documents gathered in discovery!  OMG.  Not sure that you can appreciate the amount of time involved and technology in culling down those documents.  It's quite a process and imperfect at that.  NO.  Generally speaking, no one reads all of the documents.  They use predictive modeling to find the relevant documents.   Essentially, someone has to pick some exemplar documents, categorize, or more likely, cluster the remaining  documents into bins and then run "more like this"  or related searches on the key or target documents to find what each party needs to make their case. 

The objective of examining the documents is to have a "discovery" reach broadly  enough to identify the "smoking gun" docs  but  narrow enough to keep out the noise.  Typically, a preponderance of these documents are e-mails which under the best of circumstances are  what we in the search business call dirty documents.  They contain slang, abbreviations, irrelevant  headers and footers and spelling that all need to cleaned up.  Clean up is essential to being able to find the right documents.

Amusing things of note:
  • Judge made it clear that he didn't want any shenanigans (my word not his) going on so  he was not going to issue decisions on  all of the pretrial motions presented.  I got the idea that both sides went off the runway into the cornfield filing motions that this judge found, not material or "silly" as he termed some of them.  Seemed like they submitted 25 or 30 pre trial motions one of which he did seem to read up front (which was the motion to guide  punitive damages) but hadn't gotten to the rest. 

  • The Judge also didn't want to be placed  into what he termed "an artificial state of narcolepsy" with boring laborious videos from depositions I think he was referring to.
Good to have some 'color' as background to set the stage!

They then had jury selection which was very  repetitive.  They ultimately ended up with people on the  jury such as computer programmers, cable technician, retired architect, traffic officer, hotel cook, legal assistant, an attorney etc.  Can't recall which ones actually got on the jury but it was a similar make up.

 In my next post , I will address the  Dr.  Schmalzride's testimony.  If you recall, he was one of the inventors of the hip.  I think you will find that discussion interesting .  I must have read that transcript out of order but I was interested in reading his comments first anyway.  So that post is out of sequence from the transcripts.

Disclaimer:  These are my thoughts from the transcripts.  I am not an attorney.  Take the comments for what they are worth!

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