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11th Circuit Vacates Sanctions on Dechert Partners and Calls for New Hearing
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In a recent development, the 11th U.S. Circuit Court of Appeals in Atlanta has overturned sanctions imposed on two Dechert partners and directed the trial judge to reassess whether the attorneys exhibited bad-faith conduct. The court ruled that the trial judge failed to provide adequate notice to the lawyers before imposing monetary sanctions and used an incorrect standard to evaluate their behavior. The opinion was authored by Judge Barbara Lagoa, who was previously considered a potential nominee for the U.S. Supreme Court during the Trump administration.

The attorneys who faced sanctions are Kimberly O. Branscome and Jay L. Bhimani, both representing 3M, a multinational corporation embroiled in multidistrict litigation related to allegations of defective combat earplugs. Branscome was ordered to pay $10,000, while Bhimani was ordered to pay $2,000. The sanctions were imposed due to the use of a slide based on a study on earplug effectiveness, which had not been admitted as evidence. However, the Dechert lawyers were allowed to reference the study during the cross-examination of expert witnesses.

U.S. District Judge M. Casey Rodgers of the Northern District of Florida had communicated the conditions for the slide’s use to Bhimani, who then passed on the information to Branscome. The study, conducted by a competitor of 3M, revealed that the earplug noise reduction rating was 23, surpassing 3M’s claimed rating of 22.

  
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In a decision made in June 2021, Judge Rodgers found that Branscome had shown the slide to jurors without explicitly stating that the information could not be considered as evidence of the study’s accuracy. Branscome displayed the slide during her closing arguments and asserted that an independent study contradicted an expert’s opinion, stating, “an independent laboratory got a 23.”

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Judge Rodgers intervened, requesting Branscome to approach the bench. Rodgers highlighted that Branscome had not connected the rating to the expert and required her to clarify the issue satisfactorily. The judge made it clear to the jury that they could not consider the rating of 23 as evidence of the study’s results.

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Following the jurors’ deliberations, Judge Rodgers determined that Branscome’s clarification did not rectify her willful violation of the court’s order. She stated her intention to impose monetary sanctions on one or both of the Dechert lawyers for their breach.

Seven hours later, Rodgers asked Branscome and Bhimani to provide an explanation as to why sanctions should not be imposed. The attorneys asserted that they had no intention to defy Rodgers’ order and believed that Branscome’s clarification had satisfied the directive.



However, Judge Rodgers maintained that the lawyers had deliberately attempted to circumvent her clear instructions and imposed sanctions for willful misconduct under her inherent authority.

In its ruling, the 11th Circuit emphasized that Judge Rodgers should have examined their subjective intent in bad faith rather than assessing whether the attorneys’ conduct was willful. The appeals court also highlighted the trial judge’s failure to specify the precise rule or standard that the attorneys were alleged to have violated.

This recent development signals a significant turning point in the case, as the sanctions imposed on the Dechert partners have been vacated, and a reassessment of their conduct is now mandated. Legal analysts closely following the multidistrict litigation involving 3M’s combat earplugs will continue to monitor this situation as it unfolds.



 

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