[00:00:06] Speaker 02: We will proceed to hear argument now in number 24-5040, Michael and Deborah King versus Depuy Orthopedics, Incorporated. [00:00:21] Speaker 02: And we will hear first from Mr. Gowdy. [00:01:01] Speaker 04: Give me one moment, please. [00:01:13] Speaker 04: May police record Brian Gowdy on behalf of Mr and Mrs King. [00:01:17] Speaker 04: I'd like to reserve five minutes of time for rebuttal. [00:01:20] Speaker 04: Um, the trial court's curative instruction here can be broken down into two parts. [00:01:25] Speaker 04: that there was an effort by plaintiffs to withhold Dr. Mullen's compensation from the defendant and the jury, and that compensation was undisclosed. [00:01:35] Speaker 04: And secondarily, that the compensation itself was excessive. [00:01:39] Speaker 04: Today, I want to focus mainly on the first part, the effort to withhold an undisclosed aspect of the instruction and why it was not harmless error. [00:01:51] Speaker 04: For this instruction to have been accurate and appropriate, [00:01:55] Speaker 04: Depew needed to establish a clear legal duty for plaintiff's counsel to disclose the payment, not merely be shocked and morally outraged at the amount of the payment. [00:02:11] Speaker 03: There wasn't such a duty, and even if there were... Hold on, why wasn't there a duty to disclose a $15,000 payment to this individual? [00:02:20] Speaker 04: First of all, it was $15,000, and as we lay it out in the brief, [00:02:24] Speaker 04: your honor, under Rule 26A, there's two types of experts. [00:02:31] Speaker 04: And I would just start with the general premise that absent a duty to disclose, we as advocates aren't required to [00:02:41] Speaker 04: provide evidence to the other side. [00:02:44] Speaker 04: And what Rule 26A makes very clear is that the duty to disclose payments is only with respect to retained experts. [00:02:55] Speaker 03: And you don't think $15,000 is a retained payment that should have been disclosed? [00:03:02] Speaker 04: So under this court's case law in Goodman, [00:03:05] Speaker 04: You do not look at the amount of the payment to determine whether or not someone is a retained expert or not. [00:03:12] Speaker 04: You look at the text of Rule 37A2B, Your Honor, and what that text says is if the witness is one retained or specially employed to provide expert testimony in the case, then the witness report must contain, and it has a list of six things. [00:03:35] Speaker 04: Rule 27A to B, and then there's little i and little Roman numeral 6. [00:04:00] Speaker 04: I'm not going to read two through five because it's not relevant. [00:04:06] Speaker 04: But what it says is if the witness is one retained or specially employed to provide expert testimony in the case. [00:04:16] Speaker 04: So the question is whether it's not, it is every treating physician in this country who testifies [00:04:25] Speaker 04: in litigation gets paid. [00:04:27] Speaker 01: There's a second part to, I think you left out the second part of that clause. [00:04:32] Speaker 01: If the witness is one retained or specifically employed to provide expert testimony in the case or one whose duties as the party's employee regularly involve giving expert testimony. [00:04:42] Speaker 04: I did leave that out because I think that would be involved if we had a corporate client [00:04:47] Speaker 04: who had, or for example, a police department where you had somebody who was regularly employing, that was in-house basically, an expert witness. [00:04:58] Speaker 04: So yes, I left that out because in this case it's not applicable given that my clients are individuals. [00:05:03] Speaker 04: I don't think Dr. Mullen, just to be clear about the facts, this was tried in 2024, Dr. Mullen was the surgeon who implanted [00:05:18] Speaker 04: the implant in 2010 in the left leg, and that's the implant at issue from the defendant's device. [00:05:27] Speaker 04: And then he also saw my client, Mr. King, again in 2011 and 2012. [00:05:33] Speaker 02: But even if it wasn't required to be disclosed by the expert report disclosure provision, there's two other potential theories of disclosure. [00:05:43] Speaker 02: One is that [00:05:44] Speaker 02: They had asked for all communications with Dr. Mullen and that was not supplemented to include the later communications about his compensation. [00:05:56] Speaker 02: So that's one. [00:05:58] Speaker 02: And then second, [00:05:59] Speaker 02: Before Dr. Mullen took the stand, there was a conversation about this issue and some discussion about retained, non-retained. [00:06:07] Speaker 02: But in the course of that, the flat statement was made, no one is paying him for his testimony, which the district court found to be a false statement. [00:06:17] Speaker 02: You know, even if you don't have to volunteer something, once you say something on the subject, it has to be accurate. [00:06:24] Speaker 02: And so having made that statement, didn't it have to be corrected by, well, actually, we gave him $15,000. [00:06:32] Speaker 02: For two hours of testimony. [00:06:33] Speaker 04: Right. [00:06:33] Speaker 04: So by the way, their expert, it was more opaque, but was guaranteed $12,125. [00:06:42] Speaker 04: We're not talking about their expert. [00:06:45] Speaker 02: We're talking about whether you had a duty to tell the district court [00:06:51] Speaker 02: and opposing counsel that he was being paid $15,000 and having said a few two days earlier that no one is paying for his testimony and then knowing that that became false at some point, why wasn't the district court told that he was paid $15,000? [00:07:11] Speaker 04: I'm going to answer your question. [00:07:12] Speaker 04: I just, I sense a sense of outrage about the amount of the fee and I wanted to make it... I didn't say anything about outrage. [00:07:18] Speaker 02: Okay. [00:07:18] Speaker 02: I'm sorry if I missed... I'm talking about correcting a statement that was not accurate. [00:07:23] Speaker 04: Right. [00:07:23] Speaker 04: I'm going to answer your question. [00:07:26] Speaker 04: What counsel said was not said in front of the jury. [00:07:30] Speaker 04: It was said to the judge. [00:07:31] Speaker 02: So what? [00:07:32] Speaker 04: Well, because the curative... So you can lie to the judge? [00:07:36] Speaker 04: No, but the question here is whether or not this is the appropriate sanction for counsel's statement to the judge outside the president of the jury. [00:07:48] Speaker 04: The judge has lots of sanctions power. [00:07:51] Speaker 02: I want to separate out the question of whether there was a violation of a duty and what the remedy for that is. [00:07:58] Speaker 02: And I'm focusing first on whether you violated the [00:08:03] Speaker 02: King's violated a duty of disclosure. [00:08:07] Speaker 02: And tell me why, having said two days earlier that no one was paying for his testimony when in fact he was getting $15,000, tell me why you think you didn't have to tell the judge about the $15,000 payment. [00:08:20] Speaker 04: Okay, I agree with you that Mr. Haberman, the King's counsel, statement to the judge was something he shouldn't have said. [00:08:30] Speaker 01: So I'm actually interested in [00:08:33] Speaker 01: Judge Collins' question as well, and I think you keep talking about now sort of the misstatement, but I really do want to go back to the obligation to disclose in the first instance. [00:08:45] Speaker 01: So can you explain why it is that your view is that your client didn't have an obligation to disclose this information in the first instance? [00:08:58] Speaker 04: So I think I see three possible bases here. [00:09:01] Speaker 04: One that the judge has identified about counsel's statement. [00:09:06] Speaker 04: And then the other two are Rule 26A and Rule 26E. [00:09:10] Speaker 04: And I think it's important to start with Rule 26A because the district judge's assumption here. [00:09:19] Speaker 01: Okay, so your argument under Rule 26A is that because he was not [00:09:26] Speaker 01: retained in this case, there was no obligation to disclose the payment. [00:09:31] Speaker 01: Is that right? [00:09:32] Speaker 04: That's correct. [00:09:34] Speaker 01: So now maybe address your argument under Rule 26E. [00:09:37] Speaker 04: OK. [00:09:37] Speaker 04: So under Rule 26E, I think that the context here is very important about how this all came about. [00:09:44] Speaker 04: And it takes a little bit of time to explain, and it's more fully explained in the brief. [00:09:49] Speaker 04: But on November 4, 2022, the defendant served 57 discovery requests. [00:09:57] Speaker 04: One of those asked for communications, not payments or fees, but communications between plaintiffs and their orthopedic surgeons. [00:10:09] Speaker 04: Two weeks later, the defendant opposed Dr. Mullen. [00:10:15] Speaker 04: He said he expected to be paid for his time for a telephone consultation. [00:10:22] Speaker 02: And I would tell you that he... But you never know about these lawyers. [00:10:25] Speaker 02: That's what he said. [00:10:26] Speaker 04: Right, he was joking. [00:10:27] Speaker 04: I think it's pretty obvious from the context. [00:10:29] Speaker 04: But the important point, Your Honor, is that they were told that this doctor, like I think every other treating physician who's ever testified, expected to be paid and is entitled to be paid reasonable compensation for his time [00:10:46] Speaker 04: when he has to testify or even take a phone call. [00:10:49] Speaker 04: That's what it was about. [00:10:50] Speaker 04: Plainish counsel made a phone call. [00:10:52] Speaker 03: But the other side should never have to guess what the amount is or whether or not it's happening. [00:10:57] Speaker 03: And that's what they had to do here because it was never disclosed. [00:11:00] Speaker 03: That's the problem. [00:11:01] Speaker 04: Right. [00:11:01] Speaker 04: So the problem is that they didn't ask. [00:11:05] Speaker 03: At that deposition... They had a duty to disclose that information. [00:11:09] Speaker 04: Well, that's where we're at, I guess, Your Honor, is that we went through 26A and we don't have a duty to disclose under 26A. [00:11:16] Speaker 04: Well, fairly under your argument, no. [00:11:18] Speaker 04: Well, Your Honor, it's not just my argument. [00:11:21] Speaker 04: It specifically lays out in the rule, and it's textual, that treating physicians, i.e. [00:11:27] Speaker 04: non-retained experts, don't have what's in subsection six, which says a statement of the compensation to be paid for the study and testimony in the case. [00:11:38] Speaker 02: I don't think I've heard the answer [00:11:40] Speaker 02: to Judge Desai's question about why it wasn't embraced by the duty to supplement the response about communications under 26E. [00:11:48] Speaker 04: So I was trying to get there, but I got another question. [00:11:52] Speaker 04: So on the timeline, Your Honor, it was that on November 18th, they were told that by Dr. Mullen, in his deposition that he expected it to be paid, there was no follow-up question about the amount, apparently not of that [00:12:10] Speaker 04: interests to the defense counsel at that time. [00:12:13] Speaker 04: Then in March of 2023, plaintiff responds to this request number 43 out of 57 dealing with communications and says, none. [00:12:27] Speaker 04: So it seems like at that, and we go from March 2023 to July of 2024. [00:12:36] Speaker 01: and nobody from the defense says, wait a minute, that's got to be wrong. [00:12:51] Speaker 04: is that it was understood by the parties, the lawyers themselves. [00:12:56] Speaker 01: So unless they assert some sort of confusion or request for further information, your assumption and every party's assumption can be that they must know, so I no longer have a duty to supplement? [00:13:07] Speaker 04: Well, Your Honor, they must have known that there was a communication about the payment at the deposition. [00:13:13] Speaker 04: And so everyone seems to have been acting up until July of 2024. [00:13:18] Speaker 02: Do you think the duty to [00:13:21] Speaker 02: to supplement had ceased, was cut off at some point? [00:13:25] Speaker 04: No. [00:13:26] Speaker 04: I don't think anyone understood the request to cover payment. [00:13:30] Speaker 04: Because if they did, if they did, they would have said something between... But there's no limitation on topic. [00:13:35] Speaker 02: It just asks for communications between these parties. [00:13:39] Speaker 04: Right. [00:13:39] Speaker 04: So I guess I'm trying to put out the context of the entire litigation. [00:13:44] Speaker 04: The request is served in November of 2022. [00:13:46] Speaker 04: Two weeks later, [00:13:50] Speaker 04: Dr. Mullen is deposed. [00:13:52] Speaker 04: He says, I expect to be paid. [00:13:56] Speaker 01: Your argument is that the duty was satisfied, not that the duty to supplement somehow concluded or came to a natural end and you didn't have to do it. [00:14:05] Speaker 01: Your argument is that it was satisfied. [00:14:08] Speaker 04: Yes, that's correct. [00:14:09] Speaker 01: Satisfied because the other side never asked for any further information and so your assumption was that they knew. [00:14:17] Speaker 04: Yes, and I want to segue. [00:14:20] Speaker 04: I know you want to stick, Judge Collins, you want me to stick to the duty question, and I see I'm now way into my rebuttal. [00:14:27] Speaker 02: I'll give you three minutes on the phone, because we've used a lot of your time. [00:14:33] Speaker 04: Thank you. [00:14:33] Speaker 04: I appreciate that. [00:14:35] Speaker 04: But I think the context is important. [00:14:39] Speaker 04: There's 57 discovery requests. [00:14:42] Speaker 04: There's no, if the defendant wants the information about, and I was a commercial litigator before I became an appellate lawyer. [00:14:48] Speaker 04: It's really easy to ask for the amount of money. [00:14:51] Speaker 04: You serve it interrogatory. [00:14:52] Speaker 04: How much money is the orthopedic physician being paid? [00:14:57] Speaker 04: Direct question, not request for communications. [00:15:02] Speaker 03: Well, because they want to encompass all the other possible communications. [00:15:06] Speaker 03: which presumably is, hey, this is how much I'm getting paid. [00:15:09] Speaker 04: Fair enough. [00:15:09] Speaker 04: But then why wait from March? [00:15:12] Speaker 04: They knew on November 18th of 2022, Dr. Mullen was being paid. [00:15:18] Speaker 04: And then on March of 2023, we tell them none. [00:15:22] Speaker 04: So clearly, we're construing that not to include the amount of the payment. [00:15:27] Speaker 04: And we tell them none again in September 2023. [00:15:30] Speaker 04: And they don't say anything. [00:15:33] Speaker 04: though they're saying, oh, well. [00:15:36] Speaker 03: So the problem I'm having with your argument is that it's sort of, you're arguing that we really don't have a duty, we can disclose a little bit and then somehow the other side is supposed to surmise that there are other information and if they don't follow up, well, it's their fault. [00:15:54] Speaker 03: That's kind of the whole purpose behind these rules and specifically this rule of discovery that we shouldn't have to expect [00:16:01] Speaker 03: the parties to engage in this sort of hide-and-go-seek type of situation. [00:16:07] Speaker 03: We expect that folks are providing the information in exchange so that the resolution of the issues could be clear to the jury when it's before them. [00:16:16] Speaker 03: But when everyone is working from a lack of information because you're expecting the other side to somehow surmise that this information is provided, it just seems odd to me. [00:16:27] Speaker 04: I understand your point, Your Honor, but we're [00:16:31] Speaker 04: We're still, I guess I'll have to try to say two things and then I'll try to reserve the rest of my time for rebuttal. [00:16:37] Speaker 04: One is we have the rules in place and we have to follow the text. [00:16:42] Speaker 04: And the whole assumption here is that because a treating physician was paid money, he becomes a retained expert under the rule. [00:16:51] Speaker 04: And that can't be right. [00:16:53] Speaker 04: Number two, and this is the point I wanted to try to get to earlier, even if you accept that [00:17:00] Speaker 04: we should have supplemented and we violated our duty to supplement, I don't see how that equates to an effort to withhold. [00:17:10] Speaker 04: And that's the language in the instruction. [00:17:12] Speaker 02: All right. [00:17:13] Speaker 02: Thank you, counsel. [00:17:14] Speaker 02: I'll give you three minutes for rebuttal, but we'll hear now from Ms. [00:17:18] Speaker 02: Davidson. [00:17:20] Speaker 02: Thank you. [00:17:22] Speaker 00: Thank you, your honor. [00:17:24] Speaker 00: May it please the court, Jessica Davidson, on behalf [00:17:28] Speaker 00: of the defendant, Annapolis Depew. [00:17:34] Speaker 00: I think where I want to start is something that was not addressed at all in the last few minutes, and that's 18 U.S.C. [00:17:41] Speaker 00: 201. [00:17:42] Speaker 00: And I think it's a really important place to start, because under 18 U.S.C. [00:17:46] Speaker 00: 201, you're not supposed to pay [00:17:49] Speaker 00: a fact witness $15,000 for two hours of testimony unless that is someone who regularly charges $7,500 an hour in their ordinary course of business. [00:18:00] Speaker 00: The whole purpose of 18 USC 201 is that you can only pay a fact witness the reasonable value of that person's time. [00:18:09] Speaker 00: And I think that's critical when we talk about Rule 26A, because the reason Rule 26A doesn't require you to disclose how much you're paying a fact witness is because it is assumed that people follow the rules. [00:18:24] Speaker 00: And under the rules, Dr. Mullen should have been paid a couple hundred bucks an hour, the reasonable value of his time, for his testimony. [00:18:35] Speaker 02: That doesn't make 26A applicable if he's not a retained expert. [00:18:41] Speaker 02: I mean, it may mean that it was a violation of 201, but it doesn't fall within 26A simply because the compensation was successive. [00:18:51] Speaker 00: So the whole reason, rule 26A doesn't cover non-retained experts. [00:18:55] Speaker 02: No, but we can't go into the reason and spirit and purpose. [00:18:58] Speaker 02: We have to apply the rules as written. [00:19:00] Speaker 02: It says retained expert, he's not a retained expert, so therefore it doesn't apply. [00:19:05] Speaker 02: So it seems to me the theories are supplementation under 26E or correcting the false statement to the judge, but I don't see how the 26A is the source of the duty to disclose here. [00:19:16] Speaker 00: I think the importance of 18 USC 201 is that we heard a lot about counsel didn't ask, counsel didn't follow up. [00:19:25] Speaker 00: The assumption is that people are following the rules and yes, [00:19:30] Speaker 00: treating physicians are paid all the time, but they're not paid this outrageous fee. [00:19:34] Speaker 00: So there would have been no reason for defense counsel to keep asking, how much are you paying him? [00:19:40] Speaker 02: How much are you paying him? [00:19:41] Speaker 02: I mean, what you're understanding under our case law is when the duty to supplement terminates. [00:19:48] Speaker 02: Does it terminate at the discovery cutoff? [00:19:51] Speaker 02: Does it terminate at the start of the trial? [00:19:53] Speaker 02: When does it, does it continue? [00:19:54] Speaker 02: What have we said about the issue? [00:19:56] Speaker 00: I think 9th Circuit law is clear that the duties to supplement does extend past discovery. [00:20:02] Speaker 00: I would point the court to SPS Technologies 2021, U.S. [00:20:06] Speaker 00: District Lexis 24945. [00:20:08] Speaker 00: And I really think- Have we said anything on it? [00:20:11] Speaker 02: I mean, a lot of these don't come up to us. [00:20:14] Speaker 02: So, but I'm just wondering, have we said anything on when the duty to supplement cuts off? [00:20:21] Speaker 00: There is no 9th Circuit binding authority that I could find on when the duty to supplement cuts off. [00:20:27] Speaker 00: I do think it's recognized that it does extend past the close of discovery and I think what's really important is that the duty to supplement has to extend when the discovery responses would otherwise be misleading. [00:20:40] Speaker 00: So here we have the situation where the response said none and that no longer became accurate. [00:20:46] Speaker 00: So I don't think that the duty to supplement would apply to every random piece of paper created [00:20:51] Speaker 00: you know, between the close of discovery and trial, but we're, there are things created between the close of discovery and trial that result in discovery responses being erroneous or misleading. [00:21:04] Speaker 00: That's where the duty to supplement really does have to increase up until trial. [00:21:08] Speaker 00: And I would know. [00:21:10] Speaker 01: Isn't your, the relevance of your argument with respect to 18 USC 201. [00:21:16] Speaker 01: is that by circumventing 26A by calling somebody a fact witness but paying them like a retained expert really then mean that you have a retained expert. [00:21:28] Speaker 01: So you do get back to 26A because I mean just by saying this person isn't a retained expert isn't the only factor we use to define who's a retained expert. [00:21:40] Speaker 01: So if you're paying somebody a fee, $15,000, which is not the normal [00:21:44] Speaker 01: travel expense associated with somebody coming to testify as a fact witness, then we can say that's, you can't just call it that. [00:21:53] Speaker 01: You can just label it a fact witness if you're actually treating them as a retained expert, and then we can get back to 26A as a possible hook for the disclosure obligation. [00:22:01] Speaker 00: I think, Your Honor, that's a very good point. [00:22:04] Speaker 00: Thank you, Justice Ai. [00:22:05] Speaker 00: The case that appellants cite [00:22:09] Speaker 00: doesn't actually say that you can pay someone and avoid calling them a retained expert. [00:22:15] Speaker 00: That's actually the flip side. [00:22:16] Speaker 00: In that case, the person wasn't paid and the Ninth Circuit said you can still be a retained expert even if you're not paid. [00:22:24] Speaker 00: So I think that your point is well taken that it's too easy to say, well, we avoid Rule 26A because he's not a retained expert. [00:22:33] Speaker 00: Therefore, we don't have to disclose [00:22:36] Speaker 00: that we're paying him an astronomical sum of money to quote Dr. Mullen, and therefore we evade any disclosure requirement. [00:22:46] Speaker 00: But going back to the point that Judge Collins made, there are multiple bases here for this sanction, right? [00:22:53] Speaker 00: The first basis is the failure to supplement, the second basis is the [00:22:59] Speaker 00: misstatement to the court. [00:23:01] Speaker 00: Nobody's paying him for his testimony, which was made 72 hours after wiring money to Dr. Mullen. [00:23:10] Speaker 02: What do you understand to have been the violations that the district court found? [00:23:17] Speaker 02: Did the district court find which of the three theories or collection of the three theories we've discussed? [00:23:25] Speaker 02: 26A, 26C, correction of false statement. [00:23:28] Speaker 02: Do you understand the district court to have relied on and making its ruling? [00:23:32] Speaker 00: So the district court did order supplementation after Dr. Mullen came off the stand and worried that we'd be provided the materials, the communications we didn't receive. [00:23:41] Speaker 02: So you view it as 2060. [00:23:42] Speaker 00: So I believe in that respect. [00:23:45] Speaker 00: the district court did find a violation of 26E. [00:23:47] Speaker 00: I think the district court also found bad faith under her inherent authority. [00:23:53] Speaker 00: Under this court's ruling in Fink v. Gomez, a district court needs to find either bad faith or conduct tantamount to bad faith. [00:24:01] Speaker 00: And the district court was very clear that counsel's comments were disingenuous, that counsel was [00:24:12] Speaker 00: to quote the district judge, your attempt to tell me you didn't say what you said only makes this worse. [00:24:17] Speaker 00: So I think it's pretty clear that there was both. [00:24:21] Speaker 02: Is there any indication in the record that Dr. Mullen was part of an effort to keep this from the court, his compensation from the court or from the other side? [00:24:34] Speaker 00: I don't think so. [00:24:35] Speaker 00: I don't think Dr. Mullen understood, you know, rule 26, rule 37, some lawyers barely understand it. [00:24:42] Speaker 02: Turning to the issue of remedy, that's one of the concerns that I have because what the jury was instructed was that there was an effort in the passive voice. [00:24:55] Speaker 02: There was an effort to withhold Dr. Mullen's compensation from the defendant and the jury. [00:25:03] Speaker 02: and the excessive and undisclosed payments to Dr. Mullen may have affected the credibility of his testimony. [00:25:13] Speaker 02: It seems very clear in that instruction that the jury was invited to infer that Dr. Mullen himself had been part of an effort to conceal this from the court and the jury and that therefore they should think he was a liar. [00:25:29] Speaker 02: It seems to me that there's a mismatch at that point between the remedy and the violation because they were invited to draw an adverse entrance as to his credibility because of counsel's failure to disclose. [00:25:45] Speaker 02: Can you address that? [00:25:46] Speaker 00: Certainly, Your Honor, I have a few things I'd like to say in response. [00:25:49] Speaker 00: First of all, I don't read this. [00:25:51] Speaker 00: Your instruction is saying there was an effort on the part of Dr. Mullen to withhold compensation. [00:25:57] Speaker 00: I think the assumption would be there was an effort on the part of the plaintiff. [00:26:01] Speaker 00: There was an effort on part of this side of the case. [00:26:03] Speaker 02: It simply doesn't say that. [00:26:04] Speaker 02: It is entirely in the passive voice. [00:26:08] Speaker 02: There was an effort to withhold his compensation. [00:26:11] Speaker 02: It does not say by whom. [00:26:16] Speaker 02: One reason I don't think, and the jury doesn't know all this back and forth. [00:26:21] Speaker 02: The false statement made two days. [00:26:23] Speaker 02: They don't know any of that. [00:26:24] Speaker 02: They just get this out of the blue. [00:26:27] Speaker 00: Well, the jury did hear Dr. Mullen asked, were you compensated? [00:26:32] Speaker 02: And Dr. Mullen respond that he was and told the truth right off the box. [00:26:37] Speaker 00: Correct. [00:26:38] Speaker 00: So to me, that would imply that he was not the person. [00:26:41] Speaker 00: who was trying to withhold this. [00:26:44] Speaker 00: I don't think that the court's instruction in any way implies that it was Dr. Mullen who was making that. [00:26:51] Speaker 02: But then why is the jury invited to find that he's a liar based on the fact that it was undisclosed? [00:26:57] Speaker 00: So the jury's invited to find that this excessive payment may have affected his ability. [00:27:04] Speaker 02: No, I totally agree with you on the excessive payment. [00:27:08] Speaker 02: But it says excessive and undisclosed. [00:27:10] Speaker 02: Why was the jury invited to find that Doctor Mullen was a liar based on the fact that it had not been disclosed and and not told by whom? [00:27:21] Speaker 00: So your honor, I I believe that because Plaintiffs Council. [00:27:25] Speaker 00: Told the court. [00:27:27] Speaker 00: We are not paying him. [00:27:28] Speaker 00: There was an effort on the side of the plaintiff to withhold this information from the defendant precisely because [00:27:38] Speaker 00: they didn't want to have this bias cross precisely because there was the violation of 18 USC. [00:27:45] Speaker 00: So the undisclosed nature of it is relevant to the prejudice. [00:27:50] Speaker 02: Absolutely. [00:27:50] Speaker 02: But the particular remedy is that the jury was invited to infer that Dr. Mullen was part of the effort to disclose it and there to withhold it and therefore was a liar. [00:28:05] Speaker 02: And that was false. [00:28:07] Speaker 00: So I don't think that's what the, respectfully, I don't think that's what the instruction says. [00:28:11] Speaker 02: Where the instruction is the jury told not to draw that inference? [00:28:15] Speaker 02: It seems to me they are invited to do that. [00:28:18] Speaker 00: The jury's invited to, that it may draw the inference that the excessive and undisclosed payment affected his credibility. [00:28:26] Speaker 00: That is a punishment that fits the crime, right? [00:28:28] Speaker 00: The whole idea of a curative instruction is that it should be compensatory. [00:28:33] Speaker 00: And the reason, [00:28:35] Speaker 00: Depew was prejudiced was because it was undisclosed. [00:28:39] Speaker 00: Had it been disclosed, Depew would have been able to present the jury with the two different fee schedules that were emailed to plaintiffs 72 hours before Dr. Mullen's testimony to show that this line item had been added precisely for this trial. [00:28:57] Speaker 00: right, to show that the line item for trial was completely out of the bounds of what Dr. Mullen charged for seeing patients. [00:29:08] Speaker 00: And therefore the undisclosed nature of it was relevant to the court of instruction because that's part of the prejudice. [00:29:15] Speaker 02: So how would the jury use the undisclosed nature of it to decide whether he was a liar and what would be the thought process that would permissibly [00:29:24] Speaker 02: that by which they permissibly use the undisclosed nature of it. [00:29:29] Speaker 00: So the way I read this and not to sort of grammatically [00:29:34] Speaker 00: challenge your reading, it says that the excess of an undisclosed payment may have affected the credibility. [00:29:40] Speaker 00: It doesn't say the fact that the payment was undisclosed may have affected the credibility. [00:29:46] Speaker 00: So it's an adjective as opposed to a noun and I think that's important because if we're saying the fact that it was undisclosed may have affected his credibility, that's one thing. [00:29:56] Speaker 00: But instead it's just describing the payment and it's saying the payment may have affected the credibility and [00:30:04] Speaker 00: as an adjective that that payment happened to be excessive and undisclosed. [00:30:15] Speaker 00: If I may, Your Honor, I do want to emphasize in my last few minutes that this sanction was proper under Rule 37, the sanction was proper [00:30:29] Speaker 00: under the court's inherent authority. [00:30:31] Speaker 00: But I also want to just take a minute to talk about harmless error because I think it's important. [00:30:35] Speaker 00: Under this court's ruling in the Venizia case, right, the harmless error doctrine applies where it's more likely than not that an asserted error had no effect on the verdict. [00:30:43] Speaker 00: And I think it's important to understand this small instance at trial. [00:30:48] Speaker 01: But didn't, in closing argument, the police counsel characterize this particular period of instruction as one of the most important ones? [00:30:56] Speaker 01: I find it difficult. [00:30:57] Speaker 01: now to understand an argument that it's harmless, if in fact it was relied upon by Dupuis at trial as a very significant instruction. [00:31:10] Speaker 00: So Your Honor, the discussion of the Dr. Mullen payment situation, all told, including just the facts of what happened, not just the instruction, was about 7% of counsel's closing. [00:31:21] Speaker 00: And I think what's really important to understand is this was a case [00:31:24] Speaker 00: with someone who graded his hip in A-, saw an attorney ad, then went and shopped for doctors to try to get a new hip. [00:31:32] Speaker 00: And so the person whose credibility was most important in this trial was Mr. King. [00:31:36] Speaker 00: And by the end of the trial, Mr. King's credibility was so completely shattered [00:31:40] Speaker 00: because it emerged that as a commercial pilot, he had repeatedly, repeatedly lied to the FAA about his health. [00:31:47] Speaker 00: And here, a jury was asked to rely on his self-report about his health. [00:31:53] Speaker 00: And Mr. King had lied about having diabetes to the FAA. [00:31:56] Speaker 00: He had lied about being on hypoglycemic medication to the FAA. [00:32:01] Speaker 00: And so at the end of this trial, we had a jury that [00:32:05] Speaker 00: was asked to find a verdict in favor of someone whose own credibility had been shattered. [00:32:10] Speaker 00: And therefore, that's why I say that this situation involving Dr. Mullen was one episode in the trial, but not sort of the overwhelming aspect of the trial. [00:32:20] Speaker 00: Also, you know, most of what Depew's counsel said in closing [00:32:26] Speaker 00: could have been said without this instruction, right? [00:32:30] Speaker 00: It could have been said based on this was supposed to be a fact witness. [00:32:33] Speaker 00: He was paid what he described as an astronomical amount of money. [00:32:37] Speaker 00: And you should consider that in weighing his credibility. [00:32:39] Speaker 00: That could have all been done with or without the instruction. [00:32:42] Speaker 00: And as a result, I feel that the instruction itself was not as significant to the closing as suggested in the appellants briefing. [00:32:56] Speaker 02: Thank you very much. [00:33:03] Speaker 04: Thank you. [00:33:05] Speaker 04: I represent the Kings. [00:33:06] Speaker 04: I do not represent Mr. Habermann. [00:33:08] Speaker 04: He was sanctioned and there's a separate appeal in this case, in this court going on about that. [00:33:13] Speaker 04: He was sanctioned after all of this. [00:33:15] Speaker 04: But I think Judge Collins, your questions were spot on about whether this was the appropriate sanction. [00:33:21] Speaker 04: And I will concede that all of this looks very bad. [00:33:26] Speaker 04: And if you want to find that Mr. Habermann should have supplemented under Rule 26E, so be it. [00:33:35] Speaker 04: This instruction still was not appropriate. [00:33:38] Speaker 02: Well, what's your response to counsel's point that it doesn't say that the fact that it was undisclosed could be used against him. [00:33:48] Speaker 02: It says that the undisclosed payment, the noun is payment, could be used [00:33:55] Speaker 02: to assess his credibility. [00:33:57] Speaker 04: I think there's two parts. [00:33:58] Speaker 04: There was an effort to withhold Dr. Mullen's compensation. [00:34:05] Speaker 04: And so I think that's what's just false, Your Honor, because it suggests, first of all, that perhaps Dr. Mullen was involved in it. [00:34:16] Speaker 02: That statement is amply supported in the record. [00:34:20] Speaker 02: At least as stated literally in the passive voice, [00:34:23] Speaker 02: there was an effort to withhold his compensation. [00:34:28] Speaker 02: You may not like the finding, but the judge found that the statement made earlier was false and misleading. [00:34:37] Speaker 02: And the counsel dug himself deeper the more he tried to justify it. [00:34:41] Speaker 04: Right. [00:34:42] Speaker 04: I get it. [00:34:42] Speaker 04: But again, we're talking about Dr. Mullen's credibility. [00:34:45] Speaker 04: As you pointed out, there is no evidence in the record that Dr. Mullen was involved in this. [00:34:51] Speaker 04: that now she's trying to tell you this is how it was read. [00:34:55] Speaker 04: But Your Honor just read it a few moments ago, and it's all about Dr. Mullen's credibility. [00:35:00] Speaker 04: And it doesn't say there was an effort by plaintiff's counsel or plaintiff to withhold Dr. Mullen's compensation. [00:35:06] Speaker 04: It's only talking about his credibility, and it's suggesting an undisclosed payment by him in some way. [00:35:13] Speaker 04: And so this instruction is the wrong remedy. [00:35:19] Speaker 04: And I guess I just want to point out, what is it they didn't get out in front of the jury? [00:35:26] Speaker 02: Well, you can see that it would have clearly been authorized by Rule 37 to just strike his testimony in its entirety. [00:35:35] Speaker 02: Your Honor, I... That's clearly authorized by the plain language. [00:35:38] Speaker 04: I mean... Right. [00:35:39] Speaker 04: I guess I don't agree because, again, we're here on the King's case. [00:35:44] Speaker 04: We're not here to punish Mr. Habermann. [00:35:47] Speaker 04: There's plenty of ways. [00:35:48] Speaker 02: Rule 37 allows the court to punish the party for its counsel's misdeeds. [00:35:54] Speaker 02: And if counsel in the district court's judgment lied to the district court about the witness, rule 37 seems clearly to authorize the district court to strike the testimony in its entirety. [00:36:06] Speaker 02: And she thought that that would be an excessive sanction and pick something lesser. [00:36:12] Speaker 04: Right. [00:36:13] Speaker 04: Can I, my light's flashing. [00:36:15] Speaker 02: Yes, you may answer that question. [00:36:17] Speaker 04: I think that would have been an abuse of discretion had the judge done that. [00:36:21] Speaker 04: And that's why I was trying to lay out the circumstances here with the timing. [00:36:25] Speaker 04: Because the only possible violation is Rule 26E. [00:36:31] Speaker 04: Even though they knew Dr. Mullen was being paid since November 18, 2022, no one for 16 months [00:36:43] Speaker 04: from Depew said, hey, your answer twice is wrong, because we know he was paid, and there must have been communications for that. [00:36:55] Speaker 02: All right. [00:36:55] Speaker 02: Thank you, counsel. [00:36:56] Speaker 02: I'd let you go over. [00:36:58] Speaker 02: All right. [00:36:58] Speaker 02: The case just argued will be submitted.