Bayes et al v. Biomet, Inc. et al

Filing 354

MEMORANDUM AND ORDER: This matter is before the Court on 338 Plaintiffs' Request for Guidance. Plaintiffs seek the Court's guidance "in how to elicit testimony regarding payments made to defense witnesses in other matterswithout violating the Court's Order pertaining to OSI." Doc. 338. Biomet submitted a response to Plaintiff's Request for Guidance. Doc. 339. (SEE ORDER FOR DETAILS). Signed by District Judge Stephen R. Clark on 10/21/2020. (CLO)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
MARY BAYES and PHILIP BAYES,
Plaintiff(s),
vs.
BIOMET, INC., et al.,
Defendant(s).

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Case No. 4:13-cv-00800-SRC

Memorandum and Order
This matter is before the Court on [338] Plaintiffs’ Request for Guidance. Plaintiffs seek
the Court’s guidance “in how to elicit testimony regarding payments made to defense witnesses
in other matters…without violating the Court’s Order pertaining to OSI.” Doc. 338. Biomet
submitted a response to Plaintiff’s Request for Guidance. Doc. 339.
During a hearing on October 19, 2020, outside the presence of the jury, the Court advised
Plaintiffs’ counsel that it considers the Request for Guidance an attempt to recast the record to
suggest that the Court has been unclear, when in fact, the Court has been both clear and explicit.
Further, the Court finds that the Request for Guidance is an attempt to suggest that Plaintiffs’
counsel, Darin Schanker, inadvertently violated the Court’s orders, when the record shows
deliberate violations. The Court provided numerous examples of Mr. Schanker’s violative
conduct, with citations to the trial record, beginning during opening statements and culminating
in his “direct violation” of the Court’s instruction not to mention “lawsuits, cases, [or] claims”
during his cross-examination of Dr. Steven Kurtz. Doc. 345 at 185:3-186:16.

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After citing applicable legal standards governing the Court’s inherent authority to issue
sanctions for contempt of court, the Court advised Mr. Schanker, and all of Plaintiffs’ attorneys,
as follows:
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The Court intends to impose sanctions for any further violations of its orders by Mr.
Schanker.

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Sanctions may include summarily ending Mr. Schanker’s examination of a witness, at
which time the Court may allow another member of Plaintiffs’ counsel team to
immediately proceed with any remaining examination of the witness.

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Sanctions may also include terminating Mr. Schanker’s participation in any further
proceedings in the presence of the jury (including examination of witnesses and
presenting closing argument), or terminating Mr. Schanker’s further participation in this
trial entirely. Should such further violation occur during closing argument, the Court will
consider summarily ending Mr. Schanker’s closing argument, and the Court will consider
other appropriate sanctions as warranted by Counsel’s conduct.
The Court provided notice to Mr. Schanker and all Plaintiffs’ attorneys present for the

hearing of the possible sanctions detailed above. The Court advised Plaintiffs’ counsel that they
must be prepared to proceed in conformance with the Court’s rulings, including but not limited
to the need to step in for Mr. Schanker if and where appropriate, based on the Court’s future
rulings. The Court ordered Mr. Schanker, and all of Plaintiffs’ attorneys, to notify each of
Plaintiffs’ attorneys of record of the notice detailed above within fifteen minutes of the public
filing of the hearing transcript (later modified to within fifteen minutes of the court reporter’s
emailing of the transcript to counsel). That transcript was emailed to counsel at 12:59 p.m. on
October 19, 2020. Doc. 343.

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Finally, the Court asked Mr. Schanker if he fully understood all of the Court’s
instructions on this issue, and provided opportunity to be heard. Mr. Schanker stated that he
understood and declined the opportunity to be heard at this time.
Dated: October 21, 2020.

STEPHEN R. CLARK
UNITED STATES DISTRICT JUDGE

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