There are a few truisms in civil jury trial practice, one of which is: don’t make an appeal to sympathy. See, e.g., Arnold v. E. Air Lines, Inc., 681 F.2d 186, 196-200 (4th Cir. 1982)(“the blatant, direct appeal for sympathy in closing argument [was] plainly improper”). The jury, too, is specifically told to disregard sympathy. See, e.g., Ninth Circuit Model Jury Instructions, 1.1B (“you must not be influenced by any personal likes or dislikes, opinions, prejudices, or sympathy”).


Typically, when it comes to complaints about “sympathy” in civil trials, the complaints come from insurance companies, big companies, and hospital systems, all of which often claim that verdicts for plaintiffs come more from sympathy than from a dispassionate review of the facts. I personally disagree — every day in America, “sympathetic” plaintiffs lose their cases — but that’s an argument for another time. Today’s post is about when a corporate defendant tries to play on the jury’s sympathy.


Take, for example, the recent $502 million verdict against Johnson & Johnson for their defective Pinnacle hip implants. Afterwards, J&J went ballistic, asking the trial court to halt any further trials. (We’ll come back to that.) When that request was denied, they took the extraordinary step of petitioning the Fifth Circuit to order the trial court to halt any further trials until an appeal could be heard. As they argued,


The MDL court also allowed (again over petitioners’ objections) the injection of all manner of irrelevant and highly inflammatory evidence – including, for example, plaintiffs’ counsel’s gratuitous assertions that nonparty subsidiaries of J&J had made payments to “Saddam’s henchmen”; hearsay assertions from a book about supposedly improper scientific articles planted in the literature by “Big Tobacco” and other “industr[ies]”; … Not surprisingly, the jury, awash in this flood of prejudicial evidence, returned a verdict in excess of $500 million – including $360 million in exemplary damages.


What J&J didn’t mention was how they allowed all of this evidence to be introduced into the trial by trying to make the whole trial about how wonderful they are as a company. As the plaintiffs argued in one of their briefs to the trial court, here was part of J&J’s lawyer’s attempt to portray J&J as a small-town, family-friendly, upright, honest company in his opening statement:


I am extremely proud to represent the men and women of DePuy who get up in the morning, they go to work every day with one goal in mind: To produce products that help people to get better, that produce products that allow doctors to say yes to both those questions. Yes, I can make you better; and, yes, you have choices.


DePuy doesn’t just make hips. They make devices that do many things. They are composed of really marvelous people. And I absolutely respect Mr. Cannon’s deep respect for his clients. I have it, too. But the people of DePuy are good people and they go to work and they do build products. And they’ve been doing it for a hundred years. Ezra DePuy started this company in Indiana over a hundred years ago in 1895. And you don’t stay in business for a hundred years making bad products.


It seems J&J couldn’t have been more blatant in their appeal for sympathy. They called the former President of DePuy (and current senior-level employee at J&J) to testify, and, for no apparent reason, asked him to describe the town in Indiana where DePuy’s headquarters are located, and he obliged:


It’s small town America. I think there’s 13 – somewhere between 13 and 15,000 residents in sort of the Warsaw proper area. There’s communities all around it, small towns all around it, and lots of lakes in the area.


While he was describing it, they showed the jury pictures of downtown Warsaw, the local football stadium, seminary, and the technical school. Then he was asked about J&J’s “credo” and why he stayed at DePuy for over 25 years, and he answered:


Well, you know, I guess I look at it — you know, credo is one piece of the puzzle, but I stay for a number of reasons. Number one, I think if you’re in a — in the community like orthopedics, but also you’re in medical devices, I think when you go to work and you have the opportunity to work on a device that’s going to help somebody, I think it gives you a little bit more energy. I think it certainly gives me energy when I go to work in the morning. I also think — If you go to that next paragraph and you talk about our employees, I’m very privileged to work with some really smart people. The people who work at DePuy are really smart, I think, extremely committed. We have I think 25 percent of our employee base has been working for DePuy for 25 years. So we’ve got this incredible blend of people who have been there a long time, people who are new, new to the industry, new to us, and I’m privileged to be able to work with that smart group of people.


What, really, was the point of this testimony? Does it relate to whether the Pinnacle hip was defectively designed? Of course not. It’s an effort to build the jury’s sympathy for J&J and its subsidiaries.


It’s thus not surprising that, when J&J asked the trial judge to put all the litigation on hold, he demolished their argument in two sentences: “For those evidentiary rulings that Defendants claim may be implicated in future trials, the Court repeatedly warned Defendants that if they present evidence of their good character, product safety, success of their products abroad, and positive scientific literature, then Plaintiffs will be allowed to refute those claims by introducing contrary evidence. It will be Defendants’ choice whether to open those doors in the next trial.”


And that’s what we’re here to discuss today: when a defendant “opens the door” to testimony about their own prior bad conduct.


The plaintiffs in the MDL cited Croce v. Bromley Corp., 623 F.2d 1084, 1092-93 (5th Cir. 1980), for the proposition, “where the defendants put the general reputation of a pilot at issue, they will not be heard to complain that the district court erred in admitting evidence of that pilot’s past deportment as a pilot.” In support of their claim that this was prejudicial, the defendants cited, well, nothing, at least as far as I can tell.


J&J’s petition to the Fifth Circuit for mandamus claims the trial court erred by “evidentiary rulings allowing plaintiffs to inject inflammatory issues into trial,” but that doesn’t tell us much. As the Supreme Court has made clear many times,


As a threshold matter, evidence is excludable only if it is “unfairly” prejudicial, in that it has “an undue tendency to suggest decision on an improper basis.” Advisory Committee’s Note on Fed. Rule Evid. 403, 28 U. S. C. App., p. 860; see, e. g., United States v. Munoz, 36 F. 3d 1229, 1233 (CA1 1994) (“The damage done to the defense is not a basis for exclusion; the question under Rule 403 is `one of “unfair” prejudice—not of prejudice alone’ “) (citations omitted), cert. denied sub nom. Martinez v. United States, 513 U. S. 1179 (1995); Dollar v. Long Mfg., N. C., Inc., 561 F. 2d 613, 618 (CA5 1977) (“`[U]nfair prejudice’ as used in Rule 403 is not to be equated with testimony simply adverse to the opposing party. Virtually all evidence is prejudicial or it isn’t material. The prejudice must be `unfair’ “), cert. denied, 435 U. S. 996 (1978).


Old Chief v. United States, 519 U.S. 172, 193 (1997)(bolding added). So is it unfairly prejudicial to admit evidence about a corporation’s misdeeds when that same corporation is trying to convince the jury that they’re honest and forthright folks from a small town just trying to make the world a better case? I think not. Federal Rule of Evidence 404 doesn’t think so either: the Committee Notes to the 2006 Amendments make clear that 404(b) applies fully in civil cases, and it includes using character evidence in a civil trial for “proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.”


Truth is, corporate defendants have been arguing for years that it is improper for expert witnesses to opine on the corporation’s “state of mind” when testifying. See, e.g., In re Rezulin Prods. Liab. Litig., 309 F.Supp.2d 531, 547 (S.D.N.Y.2004) (“Inferences about the intent or motive of parties or others lie outside the bounds of expert testimony … the question of intent is a classic jury question and not one for the experts.”); but see Dial Corp. v. News Corp., No. 13CV6802, 2016 WL 462515, at *12 (S.D.N.Y. Jan. 15, 2016)(distinguishing In re Rezulin, holding “there is nothing inadmissible about [an expert’s] reliance on evidence of News Corp.’s statements regarding its strategies,” and citing United States v. Mulder, 273 F.3d 91, 102 (2d Cir.2001) (permitting expert testimony that “bore on the issue of intent”)).


If we’re going to accept the argument from defendants that the only way a jury can make inferences about a corporate defendant’s intent, motives, and state of mind is through evidence from the defendants’ themselves, then it naturally follows that all evidence about the corporate defendant’s state of mind is fair game — particularly when the corporate defendants themselves are the ones trying to sway the jury with descriptions of their good intent.