Christopher v. Depuy Orthopaedics, Inc. (In Re Depuy Orthopaedics, Inc., Pinnacle Hip Implant Prod. Liab. Litig.) , 888 F.3d 753 ( 2018 )


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  •    Case: 16-11051   Document: 00514446553   Page: 1   Date Filed: 04/25/2018
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT
    United States Court of Appeals
    Fifth Circuit
    IN RE: DEPUY ORTHOPAEDICS, INCORPORATED,                                 FILED
    PINNACLE HIP IMPLANT PRODUCT LIABILITY LITIGATION                    April 25, 2018
    Lyle W. Cayce
    Clerk
    No. 16-11051
    JAY CHRISTOPHER,
    Plaintiff–Appellee
    Cross−Appellant,
    JACQUELINE CHRISTOPHER,
    Plaintiff−Appellee,
    versus
    DEPUY ORTHOPAEDICS, INCORPORATED;
    JOHNSON & JOHNSON,
    Defendants–Appellants
    Cross−Appellees.
    * * * * *
    No. 16-11052
    RICHARD KLUSMANN,
    Plaintiff–Appellee
    Cross−Appellant,
    SUSAN KLUSMANN,
    Plaintiff−Appellee,
    versus
    DEPUY ORTHOPAEDICS, INCORPORATED;
    JOHNSON & JOHNSON,
    Defendants–Appellants
    Cross−Appellees.
    * * * * *
    Case: 16-11051   Document: 00514446553   Page: 2   Date Filed: 04/25/2018
    Nos. 16-11051, 16-11052, 16-11053, 16-11054, 16-11056,
    17-10030, 17-10031, 17-10032, 17-10034, 17-10035
    No. 16-11053
    DONALD GREER,
    Plaintiff–Appellee
    Cross−Appellant,
    versus
    DEPUY ORTHOPAEDICS, INCORPORATED;
    JOHNSON & JOHNSON,
    Defendants–Appellants
    Cross−Appellees.
    * * * * *
    No. 16-11054
    ROBERT PETERSON,
    Plaintiff–Appellee
    Cross−Appellant,
    KAREN PETERSON,
    Plaintiff−Appellee,
    versus
    DEPUY ORTHOPAEDICS, INCORPORATED;
    JOHNSON & JOHNSON,
    Defendants–Appellants
    Cross−Appellees.
    * * * * *
    2
    Case: 16-11051   Document: 00514446553   Page: 3   Date Filed: 04/25/2018
    Nos. 16-11051, 16-11052, 16-11053, 16-11054, 16-11056,
    17-10030, 17-10031, 17-10032, 17-10034, 17-10035
    No. 16-11056
    MARGARET AOKI,
    Plaintiff–Appellee
    Cross−Appellant,
    versus
    DEPUY ORTHOPAEDICS, INCORPORATED;
    JOHNSON & JOHNSON,
    Defendants–Appellants
    Cross−Appellees.
    * * * * *
    No. 17-10030
    MARGARET AOKI,
    Plaintiff–Appellee,
    versus
    DEPUY ORTHOPAEDICS, INCORPORATED;
    JOHNSON & JOHNSON,
    Defendants–Appellants.
    * * * * *
    No. 17-10031
    JAY CHRISTOPHER; JACQUELINE CHRISTOPHER,
    Plaintiffs−Appellees,
    versus
    DEPUY ORTHOPAEDICS, INCORPORATED;
    JOHNSON & JOHNSON,
    Defendants–Appellants.
    3
    Case: 16-11051   Document: 00514446553   Page: 4   Date Filed: 04/25/2018
    Nos. 16-11051, 16-11052, 16-11053, 16-11054, 16-11056,
    17-10030, 17-10031, 17-10032, 17-10034, 17-10035
    * * * * *
    No. 17-10032
    DONALD GREER,
    Plaintiff−Appellee,
    versus
    DEPUY ORTHOPAEDICS, INCORPORATED;
    JOHNSON & JOHNSON,
    Defendants–Appellants.
    * * * * *
    No. 17-10034
    RICHARD KLUSMANN; SUSAN KLUSMANN,
    Plaintiffs−Appellees,
    versus
    DEPUY ORTHOPAEDICS, INCORPORATED;
    JOHNSON & JOHNSON,
    Defendants–Appellants.
    * * * * *
    No. 17-10035
    ROBERT PETERSON; KAREN PETERSON,
    Plaintiffs−Appellees,
    versus
    DEPUY ORTHOPAEDICS, INCORPORATED;
    JOHNSON & JOHNSON,
    Defendants–Appellants.
    4
    Case: 16-11051         Document: 00514446553         Page: 5    Date Filed: 04/25/2018
    Nos. 16-11051, 16-11052, 16-11053, 16-11054, 16-11056,
    17-10030, 17-10031, 17-10032, 17-10034, 17-10035
    Appeals from the United States District Court
    for the Northern District of Texas
    Before SMITH, BARKSDALE, and HIGGINSON, Circuit Judges.
    JERRY E. SMITH, Circuit Judge:
    These appeals and cross-appeal are from the second in a series of bell-
    wether trials from the Pinnacle Hip multidistrict litigation (“MDL”), in which
    several thousand plaintiffs claim injuries from Pinnacle hips manufactured
    and sold by DePuy Orthopaedics, Incorporated (“DePuy”). 1 The five plaintiffs
    in this consolidated action—Margaret Aoki, Jay Christopher, Donald Greer,
    Richard Klusmann, and Robert Peterson 2—received Pinnacle’s metal-on-metal
    (“MoM”) design, suffered complications, and required revision surgery. They
    sued DePuy and its parent corporation, Johnson & Johnson (“J&J”), 3 and
    secured a half-billion-dollar jury verdict.             Defendants’ various post-trial
    motions—for judgment as a matter of law (“JMOL”), dismissal of claims
    against J&J for lack of personal jurisdiction, and a mistrial—were denied.
    Defendants renew all three lines of argument on appeal, attacking the verdict
    on nearly twenty independent bases. Plaintiffs cross-appeal, claiming Texas’s
    exemplary-damages cap violates the state and federal constitutions. In a com-
    panion appeal, defendants appeal the denial of relief from judgment under
    1   For background, see In re DePuy Orthopaedics, Inc., 
    870 F.3d 345
    (5th Cir. 2017).
    2  Three spouses—Jacqueline Christopher, Susan Klusmann, and Karen Peterson—
    alleged loss of consortium. Their claims were consolidated as well.
    3More precisely, J&J owns Johnson & Johnson International, Incorporated, which
    owns DePuy Synthes, Incorporated, which owns a subsidiary, which owns DePuy.
    5
    Case: 16-11051          Document: 00514446553          Page: 6      Date Filed: 04/25/2018
    Nos. 16-11051, 16-11052, 16-11053, 16-11054, 16-11056,
    17-10030, 17-10031, 17-10032, 17-10034, 17-10035
    Federal Rule of Civil Procedure 60(b)(3) on the ground that plaintiffs’ counsel,
    Mark Lanier, concealed payment arrangements with two key expert witnesses.
    Disposing of the two sets of appeals together, 4 we conclude that only a
    few of plaintiffs’ claims fail as a matter of law but that the district court’s evi-
    dentiary errors and Lanier’s deceptions furnish independent grounds for a new
    trial. Hence, we reverse in part, vacate the judgment and the order denying
    Rule 60(b)(3) relief, and remand.
    I. Background
    In 2011, the Judicial Panel on MDL ordered centralization of pretrial
    proceedings in the Northern District of Texas for cases involving the Pinnacle
    Acetabular Cup System hip implants. The parties agreed to a protocol for bell-
    wether trials and, together, identified a pool of eight cases from which to select
    the candidates. The first bellwether trial lasted two months and ended in a
    jury verdict for J&J and DePuy (jointly “defendants”). The district court then
    jettisoned the seven remaining cases and ordered the parties to prepare ten
    new ones for trial. Five of those were consolidated, over defendants’ objection,
    for the second bellwether trial, which lasted nine weeks and forms the basis of
    these appeals and cross-appeal.
    At trial, plaintiffs claimed DePuy defectively designed and marketed its
    MoM implant and that J&J was liable, as a “nonmanufacturer seller,” for aid-
    ing and abetting and for negligent undertaking. At the heart of the claims lay
    the contested science of modern hip prosthetics, and we begin with the narrow
    points of agreement. As outlined in both sides’ briefs, prosthetic hips are
    designed to replicate the hip’s ball-and-socket function and typically consist of
    4   Plaintiffs’ cross-appeal is meritless, and we dispose of it by footnote.
    6
    Case: 16-11051    Document: 00514446553     Page: 7   Date Filed: 04/25/2018
    Nos. 16-11051, 16-11052, 16-11053, 16-11054, 16-11056,
    17-10030, 17-10031, 17-10032, 17-10034, 17-10035
    four components: a stem inserted into the femur, a femoral head attached to
    the stem (the hip “ball”), a cup implanted into the hip socket (the acetabulum),
    and a metal liner that fits into the cup and against which the ball articulates.
    The liner can be made from metal, polyethylene, or ceramic. The product
    at issue is Pinnacle’s MoM design, in which both head and liner (Ultamet) are
    made of metal.     Plaintiffs received the Ultamet but, several years later,
    required revision to metal-on-plastic (“MoP”) or metal-on-ceramic designs.
    The briefs and trial transcripts present competing histories on hip-
    implant technology. Both sides agree the story begins in the 1960s with “first-
    generation” MoMs, the earliest models to achieve widespread use. The parties
    further agree that these early MoMs carried certain health risks and were
    quickly displaced by Sir John Charnley’s metal-on-plastic (“MoP”) design, long
    described as the industry’s “gold standard.”
    Here, we reach a fork. Defendants suggest that, in the 1990s, MoP was
    viewed as the industry’s “weak link” because of its tendency to cause osteolysis,
    bone loss in the area surrounding the implant. When the metal ball articulates
    against the plastic liner, it generates debris from plastic wear that can cause
    dissolving of the surrounding bone, which, in turn, can require revision sur-
    gery. Defendants, along with several other manufacturers, promoted MoMs in
    the early 2000s to address this Achilles’ heel and offer high-activity patients
    an alternative that would wear out more slowly than plastic.
    Plaintiffs meanwhile tell a less rosy story. They claim defendants hastily
    reintroduced Ultamet to market, without conducting any clinical tests, for the
    sole purpose of increasing market share. Medical science had long discovered
    that plastic-wear debris, and the attendant risk of osteolysis, could be reduced
    considerably if the plastic liner was “cross-linked,” that is, sterilized through
    7
    Case: 16-11051    Document: 00514446553     Page: 8   Date Filed: 04/25/2018
    Nos. 16-11051, 16-11052, 16-11053, 16-11054, 16-11056,
    17-10030, 17-10031, 17-10032, 17-10034, 17-10035
    radiation. Yet, the theory goes, defendants lured surgeons away from cross-
    linked plastic’s proven success through an intricate misinformation campaign
    of false advertisements and DePuy-authored academic papers.
    On the core issue of marketing and design, the parties waged a war of
    the experts. Plaintiffs elicited testimony from engineers and medical scientists
    that Ultamet’s MoM design was a producing cause of their injuries and that
    cross-linked MoP was a safer alternative. They also offered evidence that
    defendants, before bringing the product to market, were made aware of the
    considerable, and arguably unjustifiable, risks of MoM. Defendants’ experts
    countered that, although MoP might be better suited to older patients, the risk-
    benefit calculus for younger, more active patients might still favor MoM.
    Defendants further maintained they had always been forthcoming with treat-
    ing physicians about this risk calculus. The district court admitted several
    pieces of inflammatory character evidence against defendants—including
    claims of race discrimination and bribes to Saddam Hussein’s Iraqi “regime”—
    reasoning the defendants had “opened the door” by repeatedly presenting
    themselves as “wonderful people doing wonderful things.”
    The jury found for plaintiffs on the five above-mentioned causes of action
    and returned a $502 million verdict. It awarded just $500,000 in economic
    compensatory damages and $141.5 million in non-economic compensatory
    damages, and DePuy and J&J were assessed exemplary damages of $120
    million and $240 million, respectively. The defendants made numerous post-
    trial motions—for JMOL on all claims, for dismissal on jurisdictional grounds,
    and for mistrial. All were denied, save the request that the court apply Texas’s
    statutory exemplary-damages cap, which reduced the $360 million to $9.6
    million.   Defendants appeal the judgment, and plaintiffs cross-appeal
    8
    Case: 16-11051        Document: 00514446553           Page: 9     Date Filed: 04/25/2018
    Nos. 16-11051, 16-11052, 16-11053, 16-11054, 16-11056,
    17-10030, 17-10031, 17-10032, 17-10034, 17-10035
    application of the cap.
    In a companion appeal, defendants request relief from judgment under
    Federal Rule of Civil Procedure 60(b)(3), based on plaintiffs’ counsel’s failure
    to disclose payments to two purportedly “nonretained” experts—Dr. Bernard
    Morrey (“Morrey Sr.”) and Dr. Matthew Morrey (“Morrey Jr.”). In preparation
    for the third bellwether trial, defendants discovered that before the second
    trial, plaintiffs’ counsel Mark Lanier had made a $10,000 donation to a charity
    of Morrey Sr.’s choosing, that Morrey Jr. had expected to be paid when testify-
    ing, and that the doctors had received post-trial payments totaling $65,000.
    Defendants moved for relief, the court denied the motion, and defendants again
    appeal.
    II. Claims Against DePuy
    JMOL is warranted only if “a reasonable jury would not have a legally
    sufficient evidentiary basis” to find for the nonmovant. FED. R. CIV. P. 50(a)-
    (1)(B). We review the denial of JMOL de novo, applying “the same standard
    . . . the district court used in first passing on the motion.” Nobach v. Woodland
    Vill. Nursing Ctr., 
    799 F.3d 374
    , 377 (5th Cir. 2015) (quotations omitted).
    DePuy claims plaintiffs’ design and marketing claims fail categorically and
    that Klusmann’s and Greer’s claims are barred by the relevant statute of
    limitations. 5
    5 Several of defendants’ theories implicate the murkier areas of Texas tort law. In
    considering these challenges, we are guided by the en banc court’s admonition:
    [I]t is not for us to adopt innovative theories of state law, but simply to apply that law
    as it currently exists . . . . We are emphatically not permitted to do merely
    what we think best; we must do that which we think the [state] [s]upreme [c]ourt
    would deem best. . . . If the law of [the state] is to be changed, it is up to the [s]upreme
    [c]ourt of [the state] and not this court to change the substantive law of that state.
    9
    Case: 16-11051        Document: 00514446553           Page: 10      Date Filed: 04/25/2018
    Nos. 16-11051, 16-11052, 16-11053, 16-11054, 16-11056,
    17-10030, 17-10031, 17-10032, 17-10034, 17-10035
    A. Design Defect
    To establish a design defect, plaintiffs had to prove that “(1) the product
    was defectively designed so as to render it unreasonably dangerous; (2) a safer
    alternative design existed; and (3) the defect was a producing cause of the
    injury for which the plaintiff seeks recovery.” Casey v. Toyota Motor Eng’g &
    Mfg. N.A., 
    770 F.3d 322
    , 330 (5th Cir. 2014) (citations omitted). Texas law
    defines a safer alternative design as one that “would have prevented or signif-
    icantly reduced the risk of the claimant’s personal injury . . . without substan-
    tially impairing the product’s utility.” 6 Consistent with this risk-utility frame-
    work, a plaintiff “must show the safety benefits from [the] proposed design are
    foreseeably greater than the resulting costs, including any diminished use-
    fulness or diminished safety.” 
    Casey, 770 F.3d at 331
    (quoting Hodges v. Mack
    Trucks, Inc., 
    474 F.3d 188
    , 196 (5th Cir. 2006)). The Texas Supreme Court and
    intermediate courts have held that a “substantially different product” cannot
    constitute a safer alternative design. 7
    Jackson v. Johns–Manville Sales Corp., 
    781 F.2d 394
    , 397 (5th Cir. 1986) (en banc) (quotation
    and alterations omitted). As a practical matter, our inquiry turns on the following predictive
    indicia:
    (1) decisions of the [state] [s]upreme [c]ourt in analogous cases, (2) the ration-
    ales and analyses underlying [state] [s]upreme [c]ourt decisions on related
    issues, (3) dicta by the [state] [s]upreme [c]ourt, (4) lower state court decisions,
    (5) the general rule on the question, (6) the rulings of courts of other states to
    which [state] courts look when formulating substantive law and (7) other avail-
    able sources, such as treatises and legal commentaries.
    Centennial Ins. Co. v. Ryder Truck Rental, Inc., 
    149 F.3d 378
    , 382 (5th Cir. 1998) (citations
    omitted).
    6 TEX. CIV. PRAC. & REM. CODE ANN. § 82.005(b). The alternative design must also be
    economically and scientifically feasible, see Honda of Am. Mfg., Inc. v. Norman, 
    104 S.W.3d 600
    , 608 (Tex. App.—Houston [1st Dist.] 2003, pet. denied), but those requirements are easily
    satisfied, given that DePuy sold a line of MoP devices.
    7   See Brockert v. Wyeth Pharm., Inc., 
    287 S.W.3d 760
    , 770 (Tex. App.—Houston [14th
    10
    Case: 16-11051        Document: 00514446553          Page: 11     Date Filed: 04/25/2018
    Nos. 16-11051, 16-11052, 16-11053, 16-11054, 16-11056,
    17-10030, 17-10031, 17-10032, 17-10034, 17-10035
    Defendants seek JMOL on three accounts: (1) MoP is a different product,
    not an alternative MoM design, (2) plaintiffs’ design-defect theory is preempted
    because it conflicts with the goals enshrined in relevant Food and Drug Admin-
    istration (“FDA”) regulations, and (3) medical-device liability is foreclosed by
    comment k to Restatement (Second) of Torts § 402A. Defendants fail on all
    three.
    1.
    Defendants’ first contention—that MoP is a different product from
    MoM—implicates thorny questions of identity and definition, practically im-
    possible to settle in the abstract. 8 In select instances, nonidentity will be
    obvious: For example, a proposal to add two additional wheels to a motorcycle
    or to “fully enclos[e] the cab” of a convertible. 
    Caterpillar, 911 S.W.2d at 385
    .
    But this case does not lend itself to such straightforward resolution, as the
    parties dispute how to characterize the relevant product: Is it a “high-stability,
    low-wear” implant, of which MoP and MoM are merely two alternative itera-
    tions? Or is it the discrete MoM design, in which case MoP is a completely
    different beast? Hewing carefully to guidance provided by Texas courts, we
    conclude, based on the record, that MoP is a viable alternative design to MoM.
    The alternative-design/different-product distinction emerges from two
    Texas cases, both distinguishable from the present. In Caterpillar, the Texas
    Supreme Court considered whether a front-end loader with a removable
    rollover-protection structure (“ROPS”) was defectively designed. 
    Id. at 383–
    Dist.] 2009, no pet.); see also Caterpillar Inc. v. Shears, 
    911 S.W.2d 379
    , 385 (Tex. 1995).
    Cf. Jackson v. Firestone Tire & Rubber Co., 
    788 F.2d 1070
    , 1076 (5th Cir. 1986) (“It
    8
    is important, but difficult, to determine at the outset the appropriate level of generality at
    which to assess appellant’s [products liability] claims.”); Bell Helicopter Co. v. Bradshaw,
    
    594 S.W.2d 519
    , 529 (Tex. Civ. App.—Corpus Christi 1979, writ ref’d n.r.e.).
    11
    Case: 16-11051    Document: 00514446553      Page: 12   Date Filed: 04/25/2018
    Nos. 16-11051, 16-11052, 16-11053, 16-11054, 16-11056,
    17-10030, 17-10031, 17-10032, 17-10034, 17-10035
    85. The court rejected the plaintiff’s proposed alternative—in which the ROPS
    was rendered non-removable—because the non-removable structure would
    thwart the ROPS’s “intended” function of enabling access to “low clearance
    areas.” 
    Id. at 384–85.
    The court refused to “impose liability in such a way as
    to eliminate whole categories of useful products from the market.” 
    Id. at 385
    (emphasis added).
    In 
    Brockert, 287 S.W.3d at 769
    , the Texas Court of Appeals applied this
    principle in the pharmaceutical context to conclude that an estrogen-only drug
    was not a safer alternative design to Prempro, a combination of estrogen and
    progestin, despite that both served “the same general purpose” of treating
    menopausal symptoms, 
    id. The plaintiff
    claimed her estrogen-only alternative
    eliminated the risk of breast cancer introduced by Prempro. 
    Id. The court
    rejected the argument, explaining that progestin helped “reduce the incidence
    of endometrial hyperplasia,” 
    id. at 770,
    and that the plaintiff had failed to
    “explain how Prempro could have been modified or improved” without com-
    promising that function, 
    id. at 771.
    Thus plaintiff’s theory was rejected as a
    “categorical attack” on the relevant product. 
    Id. Doctrinally, it
    is notable that both Caterpillar and Brockert rejected a
    plaintiff’s proposed alternative for failing to perform the discrete kinds of func-
    tions for which the alleged defective was designed—e.g., accessing low clear-
    ance areas or reducing incidence of endometrial hyperplasia. But neither case
    clearly supports the proposition that a slight difference in degree—that is, that
    the alternative does all of the things for which the allegedly defective product
    was designed, but does not do one of them quite as well—automatically renders
    the plaintiff’s proposed alternative an entirely different product. Though this
    kind/degree    distinction   cannot    dispel   the   underlying     problem     of
    12
    Case: 16-11051       Document: 00514446553         Page: 13     Date Filed: 04/25/2018
    Nos. 16-11051, 16-11052, 16-11053, 16-11054, 16-11056,
    17-10030, 17-10031, 17-10032, 17-10034, 17-10035
    characterization, 9 it finds direct support in the above caselaw and coheres with
    the overall structure of Texas design-defect law.
    Texas’s risk-utility test plainly contemplates that a proposed alternative
    design might reduce a product’s utility—that is, its capacity to perform a func-
    tion for which it was designed—without rendering the alternative an entirely
    different product. 10 If any distinction in degree rendered the proposed alter-
    native a different product as a matter of law, that would effectively moot the
    substantive balancing test for liability. Where the distinction is one of degree
    only, the risk-utility framework provides the proper mode of analysis.
    Defendants claim to have identified two relevant functional distinctions
    between MoM and MoP: (a) Metal is more durable than plastic and, therefore,
    more suitable to younger patients “who often seek not just pain relief but also
    the ability to resume an active lifestyle”; and (b) metal remedies osteolysis by
    “eliminat[ing] plastic debris entirely.” Neither purported distinction, however,
    shows MoP to be an “entirely different product” under the above, proper frame-
    work. See 
    Brockert, 287 S.W.3d at 770
    . To the first: Durability is a distinction
    in degree rather than kind. All hip implants—plastic, metal, or ceramic—are
    designed with the twin goals of minimizing wear debris and affording maximal
    longevity. Defendants’ own promotional materials characterize both their MoP
    (AltrX LD) and their MoM (Ultamet XL) as “high stability, low wear” hip
    implants; they never suggest the latter enables the implantee to perform dis-
    crete tasks otherwise impossible with the former. Brockert and Caterpillar are
    thus distinguishable.
    9 For example, parties could merely dispute the level of generality at which the prod-
    uct’s function should be described.
    TEX. CIV. PRAC. & REM. CODE ANN. § 82.005(b) (stating that a proposed alternative
    10
    design must not “substantially impair[] the product’s utility”) (emphasis added).
    13
    Case: 16-11051        Document: 00514446553          Page: 14      Date Filed: 04/25/2018
    Nos. 16-11051, 16-11052, 16-11053, 16-11054, 16-11056,
    17-10030, 17-10031, 17-10032, 17-10034, 17-10035
    The question then is whether plastic substantially impairs the hip
    implant’s utility along the durability axis. See Bell 
    Helicopter, 594 S.W.2d at 529
    . And though defendants presented evidence that metal was an “attrac-
    tive option” for younger patients, plaintiffs presented contrary evidence that
    cross-linked plastic was preferable “a hundred times out of a hundred” and that
    it outperformed metal along the survivorship dimension by a wide margin. On
    this evidentiary record, we cannot conclude, as a matter of law, that MoP sub-
    stantially impairs the implant’s utility in terms of stability and rate of wear.
    As for reduction of osteolysis, plaintiffs rightly observe that cross-linked
    polyethylene was intended to do the same thing. The question then is whether
    the risk of osteolysis from cross-linked MoP substantially reduces MoM’s
    utility, and the record says not. A DePuy executive conceded that MoM, too,
    can cause osteolysis, and DePuy seems to have known, when it sold Ultamet,
    that cross-linked plastic significantly reduced the relevant risk. 11 Thus, defen-
    dants have not identified a sufficiently discrete functional advantage to prove
    11Defendants shift course in their reply brief, stressing that MoM “eliminate[s] plastic
    debris.” That distinction is real but “of little analytical value.” Bell 
    Helicopter, 594 S.W.2d at 529
    . MoM was believed to constitute an improvement over MoP not because it eliminated
    the use of plastic, but because it purported to reduce the occurrence of adverse conditions
    associated with plastic debris (osteolysis).
    Put differently, plastic elimination was only the means, never the functional endgame.
    And though plaintiffs must do more than show that MoP has “the same general purpose as
    the allegedly defective product,” 
    Brockert, 287 S.W.3d at 770
    , the facts of Brockert show that
    performing the defective product’s basic function, while simultaneously reducing the proba-
    bility of a specific side effect, is sufficiently particularized for the purposes of alternative-
    design analysis, see 
    id. at 769–70;
    see also RESTATEMENT (THIRD) OF TORTS: Products Lia-
    bility § 2, cmt. f, illustration 8 (explaining that when a defendant markets a new television
    antenna that utilizes the electrical system in the buyer’s home, and “improves reception com-
    pared with traditional television antennas, but also introduces significant risks of electrical
    shock and electrocution,” the plaintiff may point to “traditional television antennas” as a
    reasonable alternative design and is “not confined to offering variations of television anten-
    nas that rely on electrical wiring systems” because the novel wiring method is “merely a
    14
    Case: 16-11051       Document: 00514446553          Page: 15     Date Filed: 04/25/2018
    Nos. 16-11051, 16-11052, 16-11053, 16-11054, 16-11056,
    17-10030, 17-10031, 17-10032, 17-10034, 17-10035
    MoP is fundamentally a different product.
    At oral argument, defendants suggested the different-product/-
    alternative-design question should be decided from the ex ante perspective,
    when DePuy believed MoM would eliminate osteolysis and substantially out-
    perform plastic. That those marginal benefits may have failed fully to materi-
    alize is ostensibly irrelevant to the inquiry. But defendants cite no cases for
    this contestable proposition 12; and regardless, its application here would
    require the equally contestable factual assumption that defendants did not,
    and could not, reasonably foresee the risks of instability and metallosis that,
    according to plaintiffs, dwarf MoM’s purported benefits. Plaintiffs presented
    evidence that defendants knew, even before December 2004 (the earliest date
    on which any plaintiff received his or her implant) that cross-linked MoP
    meaningfully addressed the osteolysis risk and that MoM carried potentially
    catastrophic risks of failure. Thus, the jury could reasonably conclude, even
    under defendants’ ex ante framing, that plaintiffs had identified a viable alter-
    native design. 13
    means of achieving the objective of improved television reception” (emphasis added)).
    12  Defendants’ proposal presents interrelated problems of proof and incentives. On
    the incentive side, sophisticated actors could exploit the rule by making sub-optimal invest-
    ments in ex ante risk detection, blinding themselves to the potential dangers of a particular
    product. And, as for proof, how should courts go about discerning the manufacture’s “ex ante”
    intentions? Should we ask the engineers how they expected the innovation to perform rela-
    tive to its market alternatives? Must we credit a designer’s self-serving speculation as to the
    magnitude of expected benefit as well? See generally STEVEN SHAVELL, FOUNDATIONS OF
    ECONOMIC ANALYSIS OF LAW 237–38 (2004). These and other evidentiary problems counsel
    caution. Additionally, the purpose of the “different product” rule is to guard against “elim-
    inat[ing] whole categories of useful products from the market,” 
    Caterpillar, 911 S.W.2d at 385
    (emphasis added); and, obviously, the aspiration for usefulness does not, by itself, imply
    its attainment.
    13 See Torkie-Tork v. Wyeth, 
    739 F. Supp. 2d 895
    , 901 n.8 (E.D. Va. 2010) (reading
    Brockert for the proposition that the question whether minor “changes would fundamentally
    15
    Case: 16-11051        Document: 00514446553          Page: 16     Date Filed: 04/25/2018
    Nos. 16-11051, 16-11052, 16-11053, 16-11054, 16-11056,
    17-10030, 17-10031, 17-10032, 17-10034, 17-10035
    Defendants draw our attention to several other cases applying the
    alternative-design/different-product distinction, but none disturbs the above
    conclusion. First is Theriot v. Danek Medical, Inc., 
    168 F.3d 253
    (5th Cir.
    1999), in which the plaintiff alleged a design defect in pedicle screws used for
    spinal stability. The plaintiff identified “external neck braces or internal sys-
    tems that use hooks or wires” as potential alternative designs, 
    id. at 255,
    and,
    applying Louisiana law, we rejected that theory as “tak[ing] issue with the
    choice of treatment [i.e., the use of pedicle screws] made by Theriot’s physician,
    not with a specific fault of the pedicle screw sold by [the defendant],” 
    id. As the
    facts of that case make clear, Theriot’s proposed alternatives were obvi-
    ously of a different categorical and structural ilk. Any analogy from that case
    to this one flatly begs the underlying issue of characterization. 14
    Defendants also cite Hosford v. BRK Brands, Inc., 
    223 So. 3d 199
    (Ala.
    2016), holding that ionization smoke alarms and dual-sensor smoke alarms are
    different products. The plaintiffs argued ionization alarms were defective
    because they “fail to provide adequate warning” of a fire that “begins as . . .
    slow [and] smoldering,” 
    id. at 204,
    and they identified the “more expensive”
    transform [an allegedly defective product] into a completely different product [may be] a
    genuine issue of fact appropriate for jury resolution”).
    14 Cf. Michael v. Wyeth, LLC, No. 2:04–0435, 
    2011 WL 2150112
    , at *12 (S.D.W.V. 2011)
    (finding that “synthetic” and “natural” progestin are “within the same class of [hormone
    replacement therapy] drugs that allegedly injured” the plaintiff, and distinguishing Theriot
    accordingly). Defendants also cite Damian v. Bell Helicopter Textron Inc., 
    352 S.W.3d 124
    (Tex. App.—Fort Worth 2011, pet. denied), but that case actually supports plaintiffs’ position.
    There, plaintiffs were injured in a helicopter crash that occurred after a bird penetrated the
    windshield, and they sued the manufacturer, alleging defective design. 
    Id. at 130–31.
    The
    court rejected the claim because installation of a larger, bird-resistant windshield would
    require that the helicopter be completely restructured, turning a small and agile chopper into
    a heavier model. 
    Id. at 150
    n.19, 154 n.26. As in Theriot, the proposed alternative would
    require a dramatic restructuring of the product; here, in contrast, the plastic and metal liners
    are effectively interchangeable parts in the Pinnacle hip set. The contrast is obvious.
    16
    Case: 16-11051     Document: 00514446553     Page: 17    Date Filed: 04/25/2018
    Nos. 16-11051, 16-11052, 16-11053, 16-11054, 16-11056,
    17-10030, 17-10031, 17-10032, 17-10034, 17-10035
    dual-sensor alarms, which incorporate both ionization and “photoelectric tech-
    nology,” as a safer alternative, 
    id. Applying Brockert
    and Caterpillar, the court
    deemed them two different products, based primarily on the wide disparity in
    price. 
    Id. at 207.
    That court feared liability would drive the “less expensive
    [option] from the market . . .[,] result[ing] in no smoke alarm being present” in
    homes like the plaintiffs’. 
    Id. Here, that
    empirical judgment is obviously inapposite, given that several
    plaintiffs were revised to the very alternative they propose. None of defen-
    dants’ cases counsels reversal on our facts.
    2.
    Defendants suggest the design-defect claims are preempted because they
    “stand[] as an obstacle to the accomplishment and execution of the full pur-
    poses and objectives” reflected in the MoM-related regulations of the FDA. See
    Hines v. Davidowitz, 
    312 U.S. 52
    , 67 (1941). Defendants’ obstacle-preemption
    theory fails at two levels, misconstruing both the FDA’s objectives with respect
    to MoMs and the alleged state-law obstacle in its path.
    We begin with the federal objective. Before 1976, the Federal Food,
    Drug, and Cosmetic Act left “the introduction of new medical devices . . . largely
    for the States to supervise.” Riegel v. Medtronic, Inc., 
    552 U.S. 312
    , 315 (2008).
    Congress stepped in with the Medical Device Amendments of 1976 (MDA) and
    imposed, for the first time, “a regime of detailed federal oversight,” which
    authorized the FDA to regulate medical devices under a three-tiered, risk-
    based classification scheme. 
    Id. at 316.
    Devices classified as class I or II can
    be made reasonably safe through compliance with FDA’s “general controls” or
    “special controls,” whereas class III is reserved for cases in which “insufficient
    information exists to determine” whether general or special controls can
    17
    Case: 16-11051         Document: 00514446553     Page: 18   Date Filed: 04/25/2018
    Nos. 16-11051, 16-11052, 16-11053, 16-11054, 16-11056,
    17-10030, 17-10031, 17-10032, 17-10034, 17-10035
    ensure the product’s “safety and effectiveness.” 21 U.S.C. § 360c(a)(1)(A)–(C).
    In addition, Congress granted the FDA discretionary authority to ban outright
    any product that “present[s] . . . an unreasonable and substantial risk of illness
    or injury.” 
    Id. § 360f(a)(1);
    see generally 
    Riegel, 552 U.S. at 315
    –17.
    Before class III devices can be brought to market, they generally must
    survive the FDA’s rigorous premarket approval (“PMA”) process, designed to
    ensure a device’s “safety and effectiveness.” 21 U.S.C. § 360e(d)(1)(A). That
    process is “quite time consuming,” requiring “an average of 1,200 hours [for]
    each submission.” Buckman Co. v. Plaintiffs’ Legal Comm., 
    531 U.S. 341
    , 344–
    45 (2001) (quotation omitted). The statute carves out an exception for “predi-
    cate” devices that were on the market before 1976, which can remain in cir-
    culation “until the FDA initiates and completes the PMA process.” 
    Id. at 345;
    see also 21 U.S.C. § 360e(b)(1)(A). And “to avoid the potentially monopolistic
    consequences of th[e] . . . exception,” the MDA also exempts any “substantial
    equivalents” of these predicate devices.           See 
    Buckman, 531 U.S. at 345
    ;
    21 U.S.C. § 360e(b)(1)(B). These equivalents enter the market through what
    is known as the “510(k) process,” which requires an applicant to show that the
    device either “has the same technological characteristics as the predicate
    device” or “is as safe and effective as a legally marketed device.” 21 U.S.C.
    § 360c(i)(1)(A)(i)–(ii).
    The 510(k) process does not “denote official approval of the device”; to
    create a contrary “impression . . . constitutes misbranding.”              21 C.F.R.
    § 807.97. The process “provide[s] little protection to the public” because it is
    “focused on equivalence, not safety.” Medtronic, Inc. v. Lohr, 
    518 U.S. 470
    , 493
    (1996) (quotations omitted). More recently, however, the agency has clarified,
    in guidance documents, that “principles of safety and effectiveness underlie the
    18
    Case: 16-11051       Document: 00514446553         Page: 19     Date Filed: 04/25/2018
    Nos. 16-11051, 16-11052, 16-11053, 16-11054, 16-11056,
    17-10030, 17-10031, 17-10032, 17-10034, 17-10035
    substantial equivalence determination in every 510(k) review.” 15
    The MDA contains an express-preemption provision that prohibits states
    from “establish[ing] . . . any requirement[] (1) which is different from, or in
    addition to any [MDA] requirement applicable . . . to the device, and (2) which
    relates to [its] safety or effectiveness.” 21 U.S.C. § 360k(a). The clause covers
    class III, PMA products, 
    Riegel, 552 U.S. at 322
    –23, but not 510(k)-approved
    products, 
    id. at 322;
    Lohr, 518 U.S. at 493
    –94.
    As relevant here, MoMs were sold before 1976 and have traditionally
    been treated as pre-amendment class III devices that can be brought to market
    through the 510(k) process. Ultamet followed that route in December 2000,
    when defendants characterized the product as a substantial equivalent of
    Ultima, one of J&J’s eventually recalled MoMs. In 2013, shortly after the FDA
    issued a proposed order requiring that all MoMs receive PMA, defendants
    chose to remove Ultamet from the market. The FDA finalized its order three
    years later and has not since granted PMA to any MoMs having a structure
    resembling Ultamet’s. 16
    Defendants suggest plaintiffs’ theory of liability—that MoMs are “cate-
    gorically defective”—flouts the FDA’s considered judgment that MoMs should
    not be banned outright but rather regulated, and should remain available, as
    15U.S. Dep’t of Health and Human Servs., et al., The 510(k) Program: Evaluating
    Substantial     Equivalence    in    Premarket     Notifications   6    (July    28,   2014),
    http://www.fda.gov/downloads/MedicalDevices/DeviceRegulationandGuidance/GuidanceDoc
    uments/UCM284443.pdf. But see Eghnayem v. Boston Sci. Corp., 
    873 F.3d 1304
    , 1318 (11th
    Cir. 2017) (holding the district court did not abuse its discretion in excluding evidence of
    510(k) review in a products-liability suit because the “510(k) review process is not relevant
    to a product’s safety”).
    16 See 21 C.F.R. § 888.3330(b); U.S. Food & Drug, Premarket Approval (PMA),
    available at http://www.accessdata.fda.gov/scripts/cdrh/cfdocs/cfPMA/pma.cfm. At oral argu-
    ment, defendants conceded as much.
    19
    Case: 16-11051       Document: 00514446553          Page: 20     Date Filed: 04/25/2018
    Nos. 16-11051, 16-11052, 16-11053, 16-11054, 16-11056,
    17-10030, 17-10031, 17-10032, 17-10034, 17-10035
    class III medical devices. That theory fails at two levels.
    First, plaintiffs’ burden was to show only that Ultamet was defective, not
    that all MoMs were. And because Ultamet was off the market before the trial,
    the verdict cannot have thwarted the FDA’s objectives in that narrow respect.
    Defendants reply that plaintiffs’ only colorable theory at trial covered the MoM
    interface writ large. Maybe so, but defendants’ position assumes, without any
    support, that our obstacle-preemption inquiry looks through the verdict and
    judgment to the arguments that lie beneath them. This seems unlikely, as it
    is the judgment, and not the parties’ assertions, that carries binding effect and
    the attendant power to disrupt the federal regulatory scheme. 17
    But even under defendants’ look-through inquiry, it is not the case that
    plaintiffs’ theory reached all possible MoMs. All would agree that, despite the
    sweeping language with which plaintiffs presented their case, their claims
    were impliedly limited to presently available technologies and the adverse
    health effects they allegedly engender. 18
    This seemingly pedantic point is fatal to defendants’ preemption argu-
    ment. The FDA effectively withdrew all MoMs from the market with its Feb-
    ruary 2016 final rule and left open a single door in the form of PMA. Arguably,
    the final rule contemplates the possibility that every MoM then on the market
    would (and perhaps should) fail PMA. That the FDA chose not to ban MoMs
    as a class proves no more than that it wished to give manufacturers an oppor-
    tunity to create MoMs not contemplated by plaintiffs’ theory of liability.
    17United States v. Shirey, 
    359 U.S. 255
    , 261 n.5 (1959) (Frankfurter, J.) (“Th[e] Court
    reviews judgments, not arguments . . . seeking to sustain them.”).
    18 For example, a claim that all MoPs are defective, if made before the development of
    cross-linked MoPs, would probably not reach next-generation, cross-linked plastic that
    reduces the very risks that made first-generation MoPs defective.
    20
    Case: 16-11051       Document: 00514446553         Page: 21     Date Filed: 04/25/2018
    Nos. 16-11051, 16-11052, 16-11053, 16-11054, 16-11056,
    17-10030, 17-10031, 17-10032, 17-10034, 17-10035
    Unless and until the FDA actually grants PMA to an extant MoM that carries
    the risks that made Ultamet defective, defendants cannot prove that even
    plaintiffs’ theory of liability obstructs the FDA’s regulatory objectives.
    3.
    Defendants assert plaintiffs’ claims are foreclosed by comment k to
    Restatement (Second) of Torts § 402A:
    k. Unavoidably unsafe products. There are some products
    which, in the present state of human knowledge, are quite incap-
    able of being made safe for their intended and ordinary use. These
    are especially common in the field of drugs. An outstanding ex-
    ample is the vaccine for the Pasteur treatment of rabies, which not
    uncommonly leads to very serious and damaging consequences
    when it is injected. . . . Such a product, properly prepared, and
    accompanied by proper directions and warning, is not defective,
    nor is it unreasonably dangerous. The same is true of many other
    drugs, vaccines, and the like . . . .
    RESTATEMENT (SECOND) OF TORTS § 402A, cmt. k. The Texas Supreme Court
    has incorporated § 402A into its common law, New Tex. Auto Auction Servs. v.
    Gomez de Hernandez, 
    249 S.W.3d 400
    , 403 (Tex. 2008), and has considered
    comment k in the prescription-drug context, Centocor, Inc. v. Hamilton,
    
    372 S.W.3d 140
    , 165 (Tex. 2012). But it has never expressly extended the
    immunity rule to medical implants, let alone 510(k)-cleared devices, on either
    a categorical or a product-by-product basis. 19
    Jurisdictions are split on whether medical devices enjoy blanket
    19 Defendants’ suggestion that Texas has already rejected the case-by-case approach
    is unfounded. They rely on a lone federal district court decision from the prescription-drug
    context; but that decision relied on no more than its own policy judgment and three decisions
    from other jurisdictions. See Hackett v. G.D. Searle & Co., 
    246 F. Supp. 2d 591
    , 595 (W.D.
    Tex. 2002).
    21
    Case: 16-11051       Document: 00514446553          Page: 22     Date Filed: 04/25/2018
    Nos. 16-11051, 16-11052, 16-11053, 16-11054, 16-11056,
    17-10030, 17-10031, 17-10032, 17-10034, 17-10035
    immunity, 20 with the majority of courts favoring the case-by-case method-
    ology. 21 Defendants ask that we deviate from that trend and foreclose all
    implant-based litigation, based on the conjecture that Texas courts might one
    day redraw liability boundaries in their favor. But defendants present scant
    predictive indicia from Texas to that effect, and we decline to step so far ahead
    of Texas courts, and against the majority view, in foreclosing broad avenues to
    suit. 22 Comment k does not bar plaintiffs’ claims.
    B. Marketing Defect
    To prevail on their marketing-defect claims, plaintiffs had to show
    (a) “the warning was defective” and (b) the defect “was a producing cause of the
    injury.” Ackermann v. Wyeth Pharm., 
    526 F.3d 203
    , 208 (5th Cir. 2008) (cita-
    tion omitted). Defendants seek JMOL on three grounds: The relevant warn-
    ings were adequate as a matter of law, plaintiffs presented no properly des-
    ignated warning expert, and they failed to prove causation. We conclude that
    defendants are entitled to JMOL for want of causation, but only as to Greer’s
    and Peterson’s marketing-defect claims.
    20 Compare Hufft v. Horowitz, 
    5 Cal. Rptr. 2d 377
    , 383 (Cal. Ct. App. 1992), with Hill
    v. Searle Labs., 
    884 F.2d 1064
    , 1067–69 (8th Cir. 1989).
    21See Transue v. Aesthetech Corp., 
    341 F.3d 911
    , 916 n.2 (9th Cir. 2003) (collecting
    relevant decisions).
    22Galindo v. Precision Am. Corp., 
    754 F.2d 1212
    , 1217 (5th Cir. 1985) (“[I]t is not for
    us to adopt innovative theories of recovery or defense for Texas law, but simply to apply that
    law as it currently exists.” (emphasis added)); Lofton v. McNeil Consumer & Specialty
    Pharms., 
    682 F. Supp. 2d 662
    , 679 (N.D. Tex. 2010) (“The court will not take a leap not taken
    by Texas courts and apply [comment k] to an over-the-counter drug[.]”). Defendants have not
    preserved the argument that, under a product-by-product approach, Ultamet should enjoy
    immunity under comment k. But even if they had, Texas caselaw offers almost no guidance
    on how to go about that case-by-case inquiry. Here, we are resolved to the proposition that a
    reasonable jury could find defendants’ product was not of the kind contemplated by com-
    ment k. See, e.g., 
    Hill, 884 F.2d at 1068
    –69 (reserving comment k for products “incapable of
    being made safe given the present state of human knowledge but possess[ing] such a high
    degree of social need so that [their] use is warranted, provided warnings are adequate”).
    22
    Case: 16-11051     Document: 00514446553     Page: 23   Date Filed: 04/25/2018
    Nos. 16-11051, 16-11052, 16-11053, 16-11054, 16-11056,
    17-10030, 17-10031, 17-10032, 17-10034, 17-10035
    1.
    The adequacy of a warning is generally a question of fact. “However, if
    a warning specifically mentions the circumstances complained of, then the
    warning is adequate as a matter of law.” Seifried v. Hygenic Corp., 
    410 S.W.3d 427
    , 433 (Tex. App.—Houston [1st Dist.] 2013, no pet.) (citations omitted).
    Defendants claim this is such a case.
    By defendants’ description, plaintiffs all “experienced corrosion and fric-
    tion wear from their hip implants” and “suffered adverse reactions to that
    debris.” Defendants claim specifically to have warned of these circumstances
    in the two “Instructions for Use” pamphlets (IFUs) inserted into their acetab-
    ular cup and metal liner packages. The cup’s IFU warns that “[t]issue reac-
    tions, osteolysis, and/or implant loosening caused by metallic corrosion, aller-
    gic reactions, or the accumulation of polyethylene or metal wear debris or loose
    cement particles” are among “the most frequently encountered adverse events
    . . . in hip arthroplasty.” The liner’s IFU additionally warns of “[s]ubclinical
    nerve damage . . . associated with surgical trauma,” “subluxation resulting
    from importer position and/or muscle and fibrous tissue laxity,” “[h]istological
    reactions [from] exposure to a foreign material,” “higher ion release” where
    “bone cement is not used,” and the “potential for release of metallic debris into
    the joint space.” Defendants maintain these warnings reach all of plaintiffs’
    purported conditions and were therefore adequate as a matter of law.
    But in determining whether warnings are adequate as a matter of law,
    Texas courts subject them to a demanding standard of specificity. In Jordan
    v. Geigy Pharmaceuticals, 
    848 S.W.2d 176
    , 182 (Tex. App.—Fort Worth 1992,
    no writ), where the plaintiff suffered renal failure from an anti-inflammatory,
    the court reversed a summary judgment for the defendant on the plaintiff’s
    23
    Case: 16-11051     Document: 00514446553     Page: 24    Date Filed: 04/25/2018
    Nos. 16-11051, 16-11052, 16-11053, 16-11054, 16-11056,
    17-10030, 17-10031, 17-10032, 17-10034, 17-10035
    failure-to-warn claim. It held that the warning at issue—which described
    “renal pathology in long-term administration to animals” and “overt renal
    failure . . . typically followed by recovery to the pretreatment state”—did not
    sufficiently address “irreversible renal failure” or “acute renal failure,” both
    suffered by the plaintiff. 
    Id. at 181–82.
    Plaintiffs’ position here is at least as
    compelling.
    As for the cup IFU, it was drafted before the Ultamet liner was ever
    created, and it addresses only general adverse events relevant to all hip arthro-
    plasty. Assuming Ultamet is defective for the reasons plaintiffs allege, the
    warning fails to put surgeons on notice as to the distinctive risks that arise
    from MoM—“metallosis,” “pseudotumors,” and “tissue necrosis”—or the mag-
    nitude of those risks. The liner IFU fairs no better: It fails squarely to address
    “metal wear debris” that occurs when the metal ball articulates against the
    metal liner, the underlying cause of plaintiffs’ injuries. And, taken in context,
    its warnings about nerve damage, dislocation, and ion release concern compli-
    cations not at issue in this case—e.g., surgical trauma and the implant’s
    adaptation to the bone.
    Not until after the FDA issued its proposed rule in 2013 did defendants
    specifically warn about the metallosis, pseudotumors, and tissue necrosis—the
    sorts of conditions that plaintiffs maintained caused their revision surgery. In
    short, though defendants’ IFUs identified metal debris generally, a reasonable
    jury could conclude that the warning failed to describe with reasonable speci-
    ficity the source of the wear-debris problem, the conditions to which it gives
    rise, and the magnitude of the risk. Texas law requires a closer match than
    these defendants can show.
    24
    Case: 16-11051       Document: 00514446553         Page: 25     Date Filed: 04/25/2018
    Nos. 16-11051, 16-11052, 16-11053, 16-11054, 16-11056,
    17-10030, 17-10031, 17-10032, 17-10034, 17-10035
    2.
    Defendants alternatively suggest plaintiffs failed to provide expert testi-
    mony that the device was defectively marketed. They note that Morrey Jr.,
    plaintiffs’ only expert to testify on the allegedly inadequate warning, was never
    designated as an expert on warnings per se 23 and never testified directly on the
    contents of Ultamet’s IFUs. Both claims are unpersuasive. To the first: Plain-
    tiffs designated Morrey Jr. as their warnings expert before trial, and as the
    surgeon-intermediary tasked with interpreting and applying the warning, he
    was likely equipped to assess its adequacy. To the second: Plaintiffs’ counsel
    read excerpts from warnings included in an FDA study in 2000 but later
    excised from the IFUs. Morrey Jr. replied that physicians “should have been
    made aware of those things, because those are the same risks that you’re going
    to tell your patient when you’re counseling them.” This was sufficient to allow
    a reasonable jury to conclude the IFUs’ warnings were inadequate.
    3.
    Defendants claim plaintiffs failed to show the inadequate warning actu-
    ally caused their physicians to select Ultamet. Under the learned-intermedi-
    ary (“LI”) doctrine, which Texas applies in “medical products liability
    actions,” 24 “the manufacturer . . . satisfies its duty to warn the end user of its
    product’s potential risks by providing an adequate warning to a ‘learned inter-
    mediary,’ who then assumes the duty to pass on the necessary warnings to the
    end user.” 
    Centocor, 372 S.W.3d at 142
    . Where the LI doctrine applies, plain-
    tiffs must show that, but for the inadequate warning, their doctors would have
    23See Perez v. Goodyear Tire & Rubber Co., No. 04-14-00620-CV, 
    2016 WL 1464768
    ,
    at *9 (Tex. App.—San Antonio 2016, no pet.).
    Porterfield v. Ethicon Inc., 
    183 F.3d 464
    , 468 (5th Cir. 1999) (citing Bean v. Baxter
    24
    Healthcare Corp., 
    965 S.W.2d 656
    , 663 (Tex. App.—Houston [14th Dist.] 1998, no pet.)).
    25
    Case: 16-11051      Document: 00514446553        Page: 26    Date Filed: 04/25/2018
    Nos. 16-11051, 16-11052, 16-11053, 16-11054, 16-11056,
    17-10030, 17-10031, 17-10032, 17-10034, 17-10035
    recommended different treatment, see 
    Ackermann, 526 F.3d at 208
    , 214, or
    provided additional warnings that would have led plaintiffs to withhold con-
    sent, McNeil v. Wyeth, 
    462 F.3d 364
    , 373 (5th Cir. 2006). 25 The issue is gener-
    ally a fact question, but “[w]hen the prescribing physician is aware of the
    product’s risks and decides to use it anyway, any inadequacy [in] the product’s
    warning, as a matter of law, is not the producing cause of the patient’s
    injuries.” 
    Centocor, 372 S.W.3d at 170
    .
    At the threshold, the parties debate the relevance, under Texas law, of
    “objective evidence”—that is, evidence “that a different warning would have
    affected the decision of a reasonable doctor.” 
    Id. at 171.
    The Texas Supreme
    Court referenced “objective evidence” just once, in Centocor, noting that the
    plaintiffs not only “lack[ed] subjective evidence [about what the particular
    physician would have done] but presented no objective evidence that a different
    warning would have affected the decision of a reasonable doctor to prescribe
    [the relevant drug] for [plaintiff’s] condition.” 
    Id. (emphasis added).
    Here,
    plaintiffs proffered objective evidence in Morrey Jr.’s testimony that, if the full
    risks of MoM were known to physicians, “they would run to polyethylene.”
    At least one federal district court has dismissed Centocor’s language as
    dictum 26—but that is error. As our caselaw makes plain, non-binding language
    from the state supreme court is the second- or third-best predictive indicium of
    how that court might decide an underdetermined legal question. Centennial,
    25Plaintiffs posit only that DePuy had a duty to warn Aoki and Klusmann directly of
    Ultamet’s risks. See Murthy v. Abbott Labs, 
    847 F. Supp. 2d 958
    , 971–73 (S.D. Tex. 2012).
    Because we conclude that the jury’s causation findings as to those patients are not un-
    reasonable even if LI applies, we need not consider this alternative theory.
    26In re Mentor Corp., MDL Docket No. 2004 4:08-MD-2004 (CDL), Case No. 4:13-cv-
    229 (Burke), 
    2016 WL 4611572
    , at *3 (M.D. Ga. Sept. 2, 2016).
    26
    Case: 16-11051            Document: 00514446553        Page: 27    Date Filed: 04/25/2018
    Nos. 16-11051, 16-11052, 16-11053, 16-11054, 16-11056,
    17-10030, 17-10031, 17-10032, 17-10034, 
    17-10035 149 F.3d at 382
    . Though the dictum here is weak—the court was emphasizing
    how thoroughly the Centocor plaintiffs had failed to make their case, 
    Centocor, 372 S.W.3d at 171
    , rather than affirmatively describing the types of proof that
    might sustain plaintiffs’ burden—it suggests objective evidence is at least
    relevant to the inquiry.
    Relevance, however, does not imply sufficiency. In the LI context, causa-
    tion entails two distinct factual predicates: first, that the doctor would have
    read or encountered the adequate warning 27; and second that the adequate
    warning would have altered his treatment decision for, or risk-related dis-
    closures to, the patient. 28 Centocor addressed only the latter, suggesting a jury
    might be allowed to presume a particular physician would respond “reason-
    ably” to fuller disclosure. But that presumption must yield to contrary subjec-
    tive testimony by the treating physician, 29 and Centocor fails to explain how
    objective evidence would apply to whether that doctor would have read or
    encountered the warning in the first instance. 30 When considered for the lim-
    ited purpose intimated in Centocor, objective evidence would have little
    Pustejovsky v. Pliva Inc., 
    623 F.3d 271
    , 277 (5th Cir. 2010) (rejecting, at summary
    27
    judgment, failure-to-warn claim where treating physician “did not recall ever reading the
    package insert” and plaintiff offered no more than “speculat[ion] about other ways an ade-
    quate warning might have reached [the treating physician] and altered her decision”).
    28   See 
    Centocor, 372 S.W.3d at 170
    ; 
    Ackermann, 526 F.3d at 208
    ; 
    McNeil, 462 F.3d at 373
    .
    29   See 
    Centocor, 372 S.W.3d at 170
    ; 
    Ackermann, 526 F.3d at 208
    .
    
    Pustejovsky, 623 F.3d at 277
    . Relatedly, our court has expressed “doubt” that Texas
    30
    recognizes either prong of the “read-and-heed” presumption in the LI context. 
    Ackermann, 526 F.3d at 213
    ; Ebel v. Eli Lilly & Co., 321 F. App’x 350, 358 (5th Cir. 2009). But see Koenig
    v. Purdue Pharma Co., 
    435 F. Supp. 2d 551
    , 557 (N.D. Tex. 2006) (describing a modified read-
    and-heed presumption under which the “physician would have incorporated the additional
    risk into his decisional calculus,” and speculating “this is the likely analysis applied by Texas
    Courts”). At most, the dictum in Centocor addresses the “heed” half of the presumption, but
    it says nothing of whether the physician would “read” the warning in the first place.
    27
    Case: 16-11051     Document: 00514446553     Page: 28   Date Filed: 04/25/2018
    Nos. 16-11051, 16-11052, 16-11053, 16-11054, 16-11056,
    17-10030, 17-10031, 17-10032, 17-10034, 17-10035
    bearing on any of plaintiffs’ claims.
    Take Greer and Peterson. Their treating physicians, Goletz and Schoch,
    did not testify, and plaintiffs offer no record evidence suggesting the two actu-
    ally read or encountered defendants’ inadequate warnings. On appeal, plain-
    tiffs cite only their own statements for support: Greer testified Goletz told him
    his “[MoM] would not wear, [and] would last [his] lifetime,” and according to
    Peterson, Schoch said the same “because [Peterson’s MoM] wouldn’t have any
    plastic to wear out.” But these snippets say nothing of how the doctors came
    to hold their respective views. Did Schoch and Goletz rely upon defendants’
    representations in choosing Ultamet, or did they learn of MoM’s purported
    advantages by some other means? If the latter, how would better disclosure
    have reached the doctors? Not even “objective evidence” can fill these discrete
    evidentiary voids. The jury was left to guess, and plaintiffs’ claims fail as a
    result. See 
    Pustejovsky, 623 F.3d at 277
    .
    Aoki’s and Klusmann’s claims are more complex, given that the testi-
    mony from their treating physician, Heinrich, contains somewhat mixed sig-
    nals. On the one hand, Heinrich claimed he was aware of the “risk of ions
    attacking the tissue and the bone and getting in the blood” when he chose to
    implant both patients with MoM. See 
    Centocor, 372 S.W.3d at 169
    –71. And
    yet, his testimony also suggests defendants’ omissions and misrepresentations
    played some part in his treatment decisions of both patients.
    In Aoki’s case, Heinrich testified he used aSphere, Pinnacle’s metal
    femoral head, because DePuy’s “simulator data” suggested it “minimize[d]
    th[e] wear-in phase”—the immediate post-operative period in which articula-
    tion causes “an increased release of ions”—relative to alternative metal head
    designs. Heinrich “asked” “DePuy people” about “aSphere” and “made the
    28
    Case: 16-11051    Document: 00514446553     Page: 29   Date Filed: 04/25/2018
    Nos. 16-11051, 16-11052, 16-11053, 16-11054, 16-11056,
    17-10030, 17-10031, 17-10032, 17-10034, 17-10035
    decision” to use the product “based on” their representations. Meanwhile,
    plaintiffs presented Heinrich with emails suggesting DePuy knew its claims
    about aSphere were untrue, a deception Heinrich seemed to know nothing
    about. Heinrich also acknowledged more generally that “J&J[/]DePuy” said
    nothing of the increased “problems” with MoMs in “2008, 2009, maybe even in
    2010.”
    Klusmann’s case presents a similarly mixed bag. He received bilateral
    MoM implants in 2004 and 2005 and began to experience intermittent pain as
    early as 2006. Heinrich consistently treated Klusmann with “conservative
    care” until 2011, when he first recommended revision. In explaining that
    delay, Heinrich testified that “doing things like checking ion levels and things
    of that nature” was less common then. Plaintiffs’ counsel then read a letter
    from a DePuy physician criticizing MoMs for their potentially “catastrophic
    complications” and detailing the proper post-operative detection procedures.
    He then asked Heinrich, “[I]f DePuy had sent you this information—it cer-
    tainly would have changed the way you were treating Mr. Klusmann, wouldn’t
    it?” Heinrich offered a qualified replied: “To a certain degree. The only thing
    I would say is that he put in here that once he has ruled out other issues like
    back problems, loose implants, tendinitis, then he goes on to this workup. And
    so from that standpoint, yes, I agree.” At the least, this testimony suggests
    DePuy’s omission altered the course of Klusmann’s post-operative care.
    To summarize: Though Heinrich had general awareness of the possibil-
    ity that metal wear debris could cause adverse tissue reactions, he seems to
    have been unaware of (a) the magnitude of the risk, (b) the proper post-
    operative procedures to be followed with MoM patients who experience pain
    (Klusmann), and (c) DePuy’s misstatements about aSphere’s wear-related
    29
    Case: 16-11051     Document: 00514446553     Page: 30    Date Filed: 04/25/2018
    Nos. 16-11051, 16-11052, 16-11053, 16-11054, 16-11056,
    17-10030, 17-10031, 17-10032, 17-10034, 17-10035
    advantages (Aoki). Additionally, Heinrich relied on disclosures by DePuy’s
    representatives in making his treatment decisions. A reasonable jury could
    discern causation on two bases. First, Heinrich’s mixed messages may have
    been too equivocal to rebut plaintiffs’ objective evidence, cf. 
    Centocor, 372 S.W.3d at 169
    ; and second, the subjective testimony itself—which included
    evidence of both deception and reliance—likely permitted an inference of caus-
    ation. Either way, there is nothing unreasonable in the causation findings as
    to Aoki and Klusmann.
    Christopher’s case is the most straightforward of the lot. Kearns, his
    treating physician, testified, “The metal liner, according to the data supplied
    by the company, through publication and representatives, [could] last much
    longer than all the other product liners available at the time.” Kearns claimed
    he “got [his] information from” “a DePuy consensus panel,” a “brochure that
    [his] DePuy representative gave [him],” “word of mouth, from [his] partners,
    and from the literature . . . scientific journals.” Yet, he was “never told” that
    the newer MoM designs were “unpredictable” and could lead to “a sudden
    catastrophic breakdown of the bearing.” Defendants stress that Kearns never
    read the Ultamet’s IFUs, but that concession, by itself, is not fatal.        For
    Kearns’s testimony makes clear he relied on DePuy to apprise him of the risks,
    and it plausibly suggests he would have learned of Ultamet’s risks by other
    means. Cf. 
    Pustejovsky, 623 F.3d at 277
    . Christopher’s claim easily succeeds.
    In short, defendants were entitled to JMOL on marketing-defect claims
    by Greer and Peterson. That is not so for Aoki, Christopher, or Klusmann.
    C. Statute of Limitations
    Defendants suggest Greer’s and Klusmann’s claims are barred by
    Texas’s statute of limitations, which requires that personal injury suits be filed
    30
    Case: 16-11051         Document: 00514446553        Page: 31     Date Filed: 04/25/2018
    Nos. 16-11051, 16-11052, 16-11053, 16-11054, 16-11056,
    17-10030, 17-10031, 17-10032, 17-10034, 17-10035
    “not later than two years after the day the cause of action accrues.” TEX. CIV.
    PRAC. & REM. CODE ANN. § 16.003(a). Under Texas’s discovery rule, limita-
    tions is tolled “until the plaintiff discovers, or through the exercise of reasona-
    ble care and diligence should have discovered, the nature of the injury.” 31 “The
    term ‘discovered[]’ . . . is quite broad,” 32 and it occurs whenever the plaintiff
    “has knowledge of facts which would cause a reasonable person to diligently
    make inquiry to determine his or her legal rights.” 33
    Greer and Klusmann received their MoM implants in 2004 and 2005,
    respectively, underwent revision surgery between 2011 and 2012, and sued
    within a few months of revision. Defendants claim that both began to experi-
    ence hip-related pain as early as 2008, placing them on inquiry notice as to
    potential defects in their implants outside the statutory window. That asser-
    tion assumes pain was a “fact” sufficient to motivate an inquiry into the
    implant’s defect. But both the record and Texas caselaw suggest otherwise.
    The record shows that despite plaintiffs’ and their surgeons’ diligence,
    neither group linked plaintiffs’ symptoms to a potential defect in Ultamet for
    several years post-implant. And Texas caselaw confirms that appellate courts
    will reverse the factfinder’s judgment on the accrual date only where the con-
    nection between the treatment decision and the pain is obvious—for example,
    when the plaintiff or his physician expressly connects the symptom to the
    
    31Porterfield, 183 F.3d at 467
    ; see also Moreno v. Sterling Drug, Inc., 
    787 S.W.2d 348
    ,
    351 (Tex. 1990).
    32   Vaught v. Showa Denko K.K., 
    107 F.3d 1137
    , 1140 (5th Cir. 1997).
    33 Bell v. Showa Denko K.K., 
    899 S.W.2d 749
    , 754 (Tex. App.—Amarillo 1995, writ
    denied); see also Pirtle v. Kahn, 
    177 S.W.3d 567
    , 571 (Tex. App.—Houston [1st Dist.] 2005,
    pet. denied).
    31
    Case: 16-11051       Document: 00514446553          Page: 32     Date Filed: 04/25/2018
    Nos. 16-11051, 16-11052, 16-11053, 16-11054, 16-11056,
    17-10030, 17-10031, 17-10032, 17-10034, 17-10035
    allegedly defective product. 34 Because none of defendants’ record citations
    proves this, we lack a sufficient evidentiary basis to reverse the finding of
    timeliness.
    III. Personal Jurisdiction
    J&J claims it was never a proper party because the district court lacked
    personal jurisdiction over it. The due-process standard is familiar: A defen-
    dant must make “minimum contacts with the State such that the maintenance
    of the suit does not offend traditional notions of fair play and substantial
    justice.” Daimler AG v. Bauman, 
    134 S. Ct. 746
    , 754 (2014) (quotations and
    alterations omitted). 35 Jurisdiction may be general or specific. The former
    requires “continuous and systematic” forum contacts and allows for juris-
    diction over all claims against the defendant, no matter their connection to the
    forum. 
    Id. (citations omitted).
    In contrast, the latter obtains only where a
    defendant “purposefully direct[s]” his activities toward the state, Burger King
    Corp. v. Rudzewicz, 
    471 U.S. 462
    , 472 (1985), and the plaintiff’s claim “aris[es]
    out of or [is] related to” the defendant’s forum contacts, J. McIntyre Mach., Ltd.
    34See 
    Porterfield, 183 F.3d at 467
    (holding that limitations began to run when plaintiff
    “knew” her abdominal symptoms were associated with a mesh implant, despite that surgery
    revealed for the first time that the mesh had attached to her stomach and liver); 
    Bell, 899 S.W.2d at 755
    (holding that limitations began to run as soon as plaintiffs associated their
    symptoms with the ingestion of a nutritional supplement that caused the disease); 
    Vaught, 107 F.3d at 1139
    (same).
    35“A federal court sitting in diversity may exercise personal jurisdiction over a non-
    resident defendant (1) as allowed under the state’s long-arm statute; and (2) to the extent
    permitted by the Due Process Clause of the Fourteenth Amendment.” Mullins v. Test-
    America, Inc., 
    564 F.3d 386
    , 398 (5th Cir. 2009). Here, “[b]ecause the Texas long-arm statute
    extends to the limits of federal due process, the two-step inquiry collapses into one federal
    due process analysis.” Johnston v. Multidata Sys. Int’l Corp., 
    523 F.3d 602
    , 609 (5th Cir.
    2008).
    32
    Case: 16-11051       Document: 00514446553          Page: 33     Date Filed: 04/25/2018
    Nos. 16-11051, 16-11052, 16-11053, 16-11054, 16-11056,
    17-10030, 17-10031, 17-10032, 17-10034, 17-10035
    v. Nicastro, 
    564 U.S. 873
    , 881 (2011) (quotation omitted). 36
    “This court reviews a district court’s exercise of personal jurisdiction
    de novo,” In re 
    DePuy, 870 F.3d at 353
    , and its underlying “jurisdictional find-
    ings of fact” for clear error, In re Chinese-Manufactured Drywall Prods. Liab.
    Litig., 
    753 F.3d 521
    , 529 (5th Cir. 2014). “A factual finding is not clearly erron-
    eous as long as it is plausible in the light of the record read as a whole.” Walker
    v. City of Mesquite, 
    402 F.3d 532
    , 535 (5th Cir. 2005) (quotation omitted). The
    plaintiff “bears the burden of establishing” personal jurisdiction, WNS, Inc. v.
    Farrow, 
    884 F.2d 200
    , 203 (5th Cir. 1989), and though he need only make a
    prima facie case at the Rule 12(b)(2) stage, his burden escalates to “pre-
    ponderance of the evidence” “by the end of trial.” Travelers Indem. Co. v. Cal-
    vert Fire Ins. Co., 
    798 F.2d 826
    , 831 (5th Cir. 1986) (citations omitted). 37
    Plaintiffs’ principal jurisdictional theory is “stream of commerce.” That
    doctrine recognizes that a defendant may purposely avail itself of the protec-
    tion of a state’s laws—and thereby will subject itself to personal jurisdiction—
    “by sending its goods rather than its agents” into the forum. 
    Nicastro, 564 U.S. at 882
    . In Asahi Metal Industry Co. v. Superior Court of California, Solano
    County, 
    480 U.S. 102
    (1987), neither Justice Brennan nor Justice O’Connor
    could marshal a majority on the question whether mere awareness that a prod-
    uct will be sold in the forum state suffices to support jurisdiction under the
    36 The test for specific personal jurisdiction has a third requirement: Assertion of
    jurisdiction must be fair and reasonable. Nuovo Pignone, SpA v. STORMAN ASIA M/V,
    
    310 F.3d 374
    , 382 (5th Cir. 2002). Defendants shoulder the burden and must make a “com-
    pelling case.” 
    Id. (quoting Burger
    King, 471 U.S. at 477
    ). Because J&J does not assert that
    exercising jurisdiction would be unfair or unreasonable, it has forfeited any argument under
    this prong.
    37Where the district court conducts a pre-trial evidentiary hearing on jurisdiction, the
    preponderance-of-the-evidence standard applies. 
    Travelers, 798 F.2d at 831
    . There was no
    hearing in this case.
    33
    Case: 16-11051         Document: 00514446553          Page: 34      Date Filed: 04/25/2018
    Nos. 16-11051, 16-11052, 16-11053, 16-11054, 16-11056,
    17-10030, 17-10031, 17-10032, 17-10034, 17-10035
    stream-of-commerce doctrine. The issue divides the circuits, with ours having
    embraced Justice Brennan’s more expansive view. See Choice Healthcare, Inc.
    v. Kaiser Found. Health Plan of Colo., 
    615 F.3d 364
    , 373 (5th Cir. 2010).
    Accordingly, plaintiffs need only show that J&J delivered the product that
    injured them “into the stream of commerce with the expectation that it would
    be purchased by or used by consumers in the forum state.” Ainsworth v. Moffett
    Eng’g, Ltd., 
    716 F.3d 174
    , 177 (5th Cir. 2013).
    J&J insists that it cannot be subject to personal jurisdiction because
    DePuy—its executives, engineers, and salespeople—and not J&J, played the
    principal role in developing and selling the Ultamet. Preliminarily, it cannot
    be, as J&J suggests, that nonmanufacturing parents categorically lie beyond
    the stream of commerce no matter the nature of their contributions. Personal
    jurisdiction does not turn on labels or relative connection to the forum. 38
    Instead, we look to “the relationship among the defendant, the forum, and the
    litigation.” Walden v. Fiore, 
    134 S. Ct. 1115
    , 1121 (2014). Minimum-contacts
    analysis is more “realistic” 39 than “mechanical,” 40 turning on matters of “sub-
    stance” rather than “form.” 41 Recognizing that a nonmanufacturing parent
    38 See Irving v. Owens-Corning Fiberglas Corp., 
    864 F.2d 383
    , 386 (5th Cir. 1989) (“The
    label attached to [a defendant’s] role in the distribution scheme is not the critical question.”);
    see also Doan v. Consumer Testing Labs. (Far E.) Ltd., 
    105 F.3d 654
    (5th Cir. 1996) (unpub-
    lished) (implying that personal jurisdiction is properly exercised over a defendant “suffici-
    ently connected with a particular product so as actually to ‘touch’ the product”).
    39   Burger 
    King, 471 U.S. at 479
    .
    40 Int’l Shoe Co. v. Washington, 
    326 U.S. 310
    , 319 (1945); Luv N’ care, Ltd. v. Insta-
    Mix, Inc., 438 F.3d 465,471 (5th Cir. 2006) (declining to credit “technicalities”) (citing Oswalt
    v. Scripto, Inc., 
    616 F.2d 191
    , 197 n.8 (5th Cir. 1980)); see also Nuovo 
    Pignone, 310 F.3d at 381
    n.8; Dontos v. Vendomation NZ Ltd., 582 F. App’x 338, 345 (5th Cir. 2014) (expressing
    hesitation about per se rules in the jurisdictional context).
    41Bd. Of Cty. Comm’rs v. Umbehr, 
    518 U.S. 668
    , 680 (1996) (“In determining what is
    due process of law regard must be had to substance, not to form.”) (quoting Chicago, B. &
    34
    Case: 16-11051        Document: 00514446553          Page: 35    Date Filed: 04/25/2018
    Nos. 16-11051, 16-11052, 16-11053, 16-11054, 16-11056,
    17-10030, 17-10031, 17-10032, 17-10034, 17-10035
    will sometimes lie within the stream (even where the corporate veil remains
    intact), we conclude that J&J’s marketing and sales role crosses the necessary
    threshold.
    J&J’s role in Ultamet’s design, promotion, and sale demonstrates that
    J&J significantly contributed to the product’s placement into the stream of
    commerce. 42 On design, the record suggests J&J (a) merged DePuy with
    another subsidiary that developed Ultamet’s precursor Ultima, 43 (b) integrated
    the design teams, and (c) transferred a helpful patent to DePuy. On marketing
    and sale, J&J (a) reviewed, edited, and approved DePuy’s Pinnacle ads, prod-
    uct brochures, journal articles, public statements, and representations to reg-
    ulators promoting Pinnacle MoMs 44; (b) provided substantial funding for
    certain of DePuy’s promotional activities; (c) independently promoted MoMs
    via a satellite telecast to physicians all over the country, including Texas, and
    a website, hipreplacement.com, which referred visitors to Texas surgeons and
    allowed Texas residents to have Ultamet-related information mailed directly
    to them; (d) referred to the product as its own; (e) granted DePuy “market
    clearance” to “manufacture, use, and sell” Ultamet worldwide; 45 (f) placed its
    Q.R.R. Co. v. City of Chi., 
    166 U.S. 226
    , 235 (1897)).
    42 See 
    Irving, 864 F.2d at 386
    –87 (rejecting argument that defendant’s role in the
    stream-of-commerce chain was “too minor” to give rise to personal jurisdiction where, among
    other things, the defendant “held itself out as the seller,” “derived economic benefits from”
    sale of the product, and “placed no geographic limits” on where downstream broker could
    operate).
    43In seeking the FDA’s 510(k) clearance, DePuy characterized Ultamet as Ultima’s
    “substantial equivalent.”
    44A number of these materials, in particular the brochures and advertisements,
    included misleading statements related to MoM’s “fluid film lubrication,” limited wear debris,
    and general survivorship rate. Plaintiffs’ claims were based in part on these statements.
    45   J&J asserts that the clearance document was never admitted into evidence. The
    35
    Case: 16-11051         Document: 00514446553           Page: 36      Date Filed: 04/25/2018
    Nos. 16-11051, 16-11052, 16-11053, 16-11054, 16-11056,
    17-10030, 17-10031, 17-10032, 17-10034, 17-10035
    logo on the packaging of the product as received in Texas; and (g) “monitored”
    Texas surgeon-consultants promoting Ultamet. Also, DePuy generated consid-
    erable revenue for J&J’s subsidiary Medical Device & Diagnostic. 46 Finally,
    although it is neither necessary to nor determinative of the jurisdictional ques-
    tion, we note that both the district court and jury found, under Texas tort law,
    that J&J was a “seller” of Ultamet. This combination of factors—collectively
    showing that J&J participated in developing Ultamet, greenlighted its sale
    worldwide, held the product out as its own, independently promoted the prod-
    uct, exercised ultimate controlling authority over the product’s design and pro-
    motion, and derived revenue from its sale—is sufficient to show that J&J was
    a link in the stream-of-commerce chain.
    These factors also distinguish J&J’s role from the passive parent-
    trial record confirms that it was.
    46 See Choice Healthcare, 
    Inc., 615 F.3d at 373
    (“Deriving revenue from such commer-
    cial activity is the quid pro quo for requiring the defendant to suffer a suit in the foreign
    forum.”); see also Luv N’ 
    care, 438 F.3d at 470
    (“Where a defendant knowingly benefits from
    the availability of a particular state’s market for its products, it is only fitting that the defen-
    dant be amenable to suit in that state.”). We have held that a person who designed and li-
    censed a product sold by a third-party lay outside the stream-of-commerce for jurisdictional
    purposes. In Seiferth v. Helicopteros Atuneros, Inc., 
    472 F.3d 266
    , 269−70 (5th Cir. 2006), a
    worker’s estate sued a pair of nonresident defendants in Mississippi after the worker had
    died on a defective helicopter platform. One of the defendants leased the helicopter to a non-
    party, which then installed the defective platform; the other codefendant, Camus, had de-
    signed, patented, and licensed the platform to that same non-party. He also served as a pilot
    for the non-party and had incidentally flown the helicopter with the platform at issue into
    Mississippi and inspected it there before the accident. 
    Id. As to
    Camus, we held “[t]he
    stream-of-commerce theory does not provide a basis for jurisdiction, because [he] did not place
    a product into the stream, but merely licensed a design to [the non-party].” 
    Id. at 275.
    Camus’s contributions to the introduction of the helicopter platform into Mississippi differ in
    both kind and degree from J&J’s role here. The plaintiff in Seiferth presented no evidence
    that Camus exercised control over whether and where the offending product could be sold,
    participated in its marketing, directly derived revenue from its sale, or placed his logo on the
    product and held it out as his own.
    36
    Case: 16-11051      Document: 00514446553         Page: 37    Date Filed: 04/25/2018
    Nos. 16-11051, 16-11052, 16-11053, 16-11054, 16-11056,
    17-10030, 17-10031, 17-10032, 17-10034, 17-10035
    subsidiary relationship that we have held insufficient to support jurisdiction. 47
    Where all the above considerations obtain, a parent corporation like J&J has
    “purposely avail[ed] itself of the privilege of conducting activities” in the states
    it expects the product to be sold, “thus invoking the benefits and protections of
    [that state’s] laws.” 
    Nicastro, 564 U.S. at 880
    (quoting Hanson v. Denckla,
    
    357 U.S. 235
    , 253 (1958)). “[W]here individuals ‘purposefully derive benefit’
    from their interstate activities, it may well be unfair to allow them to escape
    having to account in other States for consequences that arise proximately from
    such activities; the Due Process Clause may not readily be wielded as a terri-
    torial shield to avoid interstate obligations that have been voluntarily
    assumed.” Burger 
    King, 471 U.S. at 473
    –74 (citation omitted) (quoting Kulko
    v. Cal. Superior Court, 
    436 U.S. 84
    , 96 (1978)).
    Accordingly, J&J’s significant role in placing the Ultamet into the
    stream of commerce with the expectation that it would be purchased by
    consumers in Texas rendered J&J amenable to suit for injuries caused by the
    Ultamet in Texas. The district court properly exercised personal jurisdiction
    over J&J.
    IV. Claims Against J&J
    J&J avers that the claims against it—aiding and abetting, non-
    manufacturer seller, and negligent undertaking—all fail on the merits. We
    agree with J&J only as to aiding and abetting.
    A. Aiding and Abetting
    Plaintiffs’ cause of action for aiding and abetting derives from
    See, e.g., Dickson Marine v. Panalpina, 
    179 F.3d 331
    , 338 (5th Cir. 1999); Dalton v.
    47
    R & W Marine, Inc., 
    897 F.2d 1359
    , 1363 (5th Cir. 1990).
    37
    Case: 16-11051          Document: 00514446553         Page: 38     Date Filed: 04/25/2018
    Nos. 16-11051, 16-11052, 16-11053, 16-11054, 16-11056,
    17-10030, 17-10031, 17-10032, 17-10034, 17-10035
    Section 876(b) of the Restatement (Second) of Torts, which provides that, “[f]or
    harm resulting to a third person from the tortious conduct of another, one is
    subject to liability if he . . . knows that the other’s conduct constitutes a breach
    of duty and gives substantial assistance or encouragement . . . .” The Texas
    Supreme Court “has not expressly decided whether Texas recognizes a cause
    of action for aiding and abetting,” 48 and the parties disagree at length about
    whether Texas courts, if squarely presented with the question, would fashion
    an aiding-and-abetting cause of action, outside of the conspiracy context, when
    the predicate offense sounds in strict liability.
    But that debate is beside the point. When sitting in diversity, a federal
    court exceeds the bounds of its legitimacy in fashioning novel causes of action
    not yet recognized by the state courts. 49 Here, despite ample warning, the
    district court exceeded its circumscribed institutional role and “expand[ed]
    [Texas] law beyond its presently existing boundar[y].” 
    Rubinstein, 20 F.3d at 172
    .
    Plaintiffs offer two responses, neither persuasive. First, they suggest
    treating the state courts’ abstention as a de facto rejection would effectively
    eviscerate the Erie analysis. 50 Not so. Erie authorizes us to wager a guess
    48 First United Pentecostal Church of Beaumont v. Parker, 
    514 S.W.3d 214
    , 224 (Tex.
    2017) (citing Juhl v. Airington, 
    936 S.W.2d 640
    , 643 (Tex. 1996)).
    49Johnson v. Sawyer, 
    47 F.3d 716
    , 729 (5th Cir. 1995) (“As there is currently no Texas
    law creating a common law cause of action for a statutory violation for which violation there
    is an express and comprehensive statutory cause of action, we will not undertake to . . . create
    such a Texas common law cause of action.”); Rubinstein v. Collins, 
    20 F.3d 160
    , 172 (5th Cir.
    1994) (“It is axiomatic, of course, that we will not expand state law beyond its presently
    existing boundaries.”); Harmon v. Grande Tire Co., 
    821 F.2d 252
    , 259 (5th Cir. 1987) (“As an
    Erie court, however, it is not our job to lay down broad new rules of state law.”); 
    Galindo, 754 F.2d at 1217
    n.8 (counseling against “substantive innovations” in state law).
    50   See also In re Hous. Reg’l Sports Network, L.P., 
    547 B.R. 717
    , 759 n.19 (Bankr. S.D.
    38
    Case: 16-11051         Document: 00514446553        Page: 39     Date Filed: 04/25/2018
    Nos. 16-11051, 16-11052, 16-11053, 16-11054, 16-11056,
    17-10030, 17-10031, 17-10032, 17-10034, 17-10035
    about how the state court might fill the interstices of existing doctrinal frame-
    works; inventing a new framework ex nihilo is another matter entirely.
    Plaintiffs also cite three Texas cases, 51 for the proposition that Texas has
    long recognized aiding-and-abetting claims “in some form.” But none of the
    three speaks, let alone clearly, to the question. Pippen involved a principal-
    agent relationship, 52 Kinzbach Tool a joint-tortfeasor matter, 53 and McKinnon
    & Van Meter transferee liability in a fraudulent-transfer case. 54 And even if
    we were to construe these as stealth aiding-and-abetting decisions, their half-
    century-old judgments would have to yield to the court’s more timely and direct
    pronouncements to the contrary. J&J is entitled to JMOL on plaintiffs’ aiding-
    and-abetting claim because no such claim exists in Texas.
    B. Nonmanufacturer Seller
    J&J challenges plaintiffs’ “nonmanufacturer seller” claim.                    Section
    82.003(a) of the Texas Civil Practice & Remedies Code declares that “[a] seller
    that did not manufacture a product is not liable for harm caused to the claim-
    ant by that product unless the claimant proves” one of seven exceptions. Ques-
    tion 3 of the jury charge asked whether J&J was a “nonmanufacturing seller”
    under section 82.003 and then whether J&J satisfied the requirements of
    Tex. 2016) (asserting the same ipse dixit that Erie has no purpose if federal courts lack the
    power to fashion entirely novel causes of action under state law).
    51City of Fort Worth v. Pippen, 
    439 S.W.2d 660
    , 665 (Tex. 1969); Kinzbach Tool Co. v.
    Corbett-Wallace Corp., 
    160 S.W.2d 509
    , 514 (Tex. 1942); McKinnon & Van Meter v. Reliance
    Lumber Co., 
    63 Tex. 30
    , 31 (1885)
    52   
    Pippen, 439 S.W.2d at 665
    .
    53Kinzbach 
    Tool, 160 S.W.2d at 514
    (applying “settled . . . law of [Texas] that where a
    third party knowingly participates in the breach of duty of a fiduciary, such third party
    becomes a joint tortfeasor”) (emphasis added).
    54   McKinnon & Van 
    Meter, 63 Tex. at 31
    .
    39
    Case: 16-11051          Document: 00514446553        Page: 40     Date Filed: 04/25/2018
    Nos. 16-11051, 16-11052, 16-11053, 16-11054, 16-11056,
    17-10030, 17-10031, 17-10032, 17-10034, 17-10035
    either of two exceptions to that immunity—whether it “participate[d] in the
    design” of the Ultamet and whether it “actually kn[e]w of” a defect in the
    Ultamet. The jury answered yes to both questions.
    J&J claims “nonmanufacturer seller” is an affirmative defense rather
    than a standalone cause of action. The verdict proves that J&J could be found
    guilty under one of the exceptions to the affirmative defense, but only if it had
    also been found liable for a standalone cause of action such as design or
    marketing defect.            It claims no such finding was made—ergo, the
    nonmanufacturer-seller charge was “bizarre” and “meaningless.”
    But J&J creates confusion from whole cloth. The first two questions in
    the jury charge concerning design and marketing defects focus on the product,
    rather than the conduct or identity of the responsible parties, 55 because that is
    the focus of Texas products-liability law. 56 Though Questions 1 and 2 mention
    DePuy and not J&J, those references serve only to fix the relevant temporal
    frame—i.e., what condition was the product in when it left DePuy’s
    possession?—rather than to exclude other nonmanufacturer sellers from
    55   Question 1 reads in relevant part,
    Was there a design defect in the Pinnacle Ultamet Hip Implant at the time it
    left the possession of DePuy Orthopaedics, Inc. . . . ? . . .
    ...
    In answering this question, you are instructed to consider only the condition of
    the Pinnacle Ultamet Hip Implant, and not the conduct of DePuy Ortho-
    paedics, Inc. The Pinnacle Ultamet Hip Implant may have a design defect even
    if DePuy Orthopaedics, Inc. exercised all possible care in designing it.
    Question 2 asked, “Was there a defect in the warnings at the time the Pinnacle Ulta-
    met Hip Implant left the possession of DePuy Orthopaedics, Inc. . . . ?”
    56Gonzales v. Caterpillar Tractor Co., 
    571 S.W.2d 867
    , 871 (Tex. 1978) (“Strict liability
    looks at the product itself and determines if it is defective. Negligence looks at the acts of
    the manufacturer and determines if it exercised ordinary care in design and production”).
    40
    Case: 16-11051       Document: 00514446553        Page: 41     Date Filed: 04/25/2018
    Nos. 16-11051, 16-11052, 16-11053, 16-11054, 16-11056,
    17-10030, 17-10031, 17-10032, 17-10034, 17-10035
    liability. This is especially so, given that the Ultamet was never “in” or “left”
    J&J’s possession. Hence, in the instructions that precede Question 3, the
    charge specifically instructs, “Answer Question 3 only if you have answered
    ‘yes’ to Question 1 or Question 2. Otherwise do not answer Question 3.” As is
    obvious from this language, the district court had the jury determine J&J’s
    liability through a combination of questions: first, whether the product was
    deficiently designed or marketed, and then whether those defects were imputa-
    ble to J&J as a nonmanufacturer seller. J&J cites no procedural rule that
    prohibited the court from dividing the elements of a cause of action in this way,
    and we decline to invent one now. 57
    C. Negligent Undertaking
    J&J maintains that plaintiffs’ negligent-undertaking claim fails for
    insufficient evidence. Negligent undertaking requires a finding that (1) J&J
    undertook to perform services that it knew or should have known were neces-
    sary for plaintiffs’ protection (here, a duty to design Ultamet for safe use and
    to regulate its marketing, sale, and distribution); (2) J&J failed to exercise rea-
    sonable care in performing those services; and (3) plaintiffs or their physicians
    relied on J&J’s performance, or J&J’s performance increased plaintiffs’ risk of
    harm. Nall v. Plunkett, 
    404 S.W.3d 552
    , 555–56 (Tex. 2013). Disagreement
    lies primarily at the first prong: Plaintiffs recite J&J’s laundry list of Ultamet-
    related contacts, which J&J dismisses as “typical of a parent-subsidiary rela-
    tionship” and thus insufficient to “disregard the corporate form.”
    Texas caselaw reveals no precise control threshold a parent must cross
    before undertaking a duty to its subsidiary’s customers. Texas courts have
    57In a footnote, defendants question whether J&J was properly deemed a seller under
    Section 82.003. They cite no cases for that under-defended theory, so we do not consider it.
    41
    Case: 16-11051          Document: 00514446553        Page: 42    Date Filed: 04/25/2018
    Nos. 16-11051, 16-11052, 16-11053, 16-11054, 16-11056,
    17-10030, 17-10031, 17-10032, 17-10034, 17-10035
    made clear that mere possession of “the authority to compel” a subsidiary is
    not enough—the parent “must actually” exercise that authority in a manner
    relevant to the undertaking inquiry. 58 At the same time, it is plainly sufficient
    to show the parent has “the controlling, primary authority for maintaining
    safety at [its subsidiary’s] facilitates.” 59
    The gap between these two poles is wide, and there is little guidance.
    Nothing J&J points to in Texas law suggests “primary authority for main-
    taining safety” is necessary to sustain an undertaking claim. Given that plain-
    tiffs have identified several instances in which J&J actually exercised its veto
    authority, especially in the marketing context, we cannot say every “reasona-
    ble” juror reviewing J&J’s role in Ultamet’s design, marketing, and distri-
    bution would find that J&J had not undertaken a duty to Ultamet users. 60 The
    challenge is to sufficiency of the evidence, and there is nothing unreasonable
    in the jury’s determination. 61
    58 See Little v. Delta Steel, Inc., 
    409 S.W.3d 704
    , 721 (Tex. App.—Fort Worth 2013, no
    pet.) (quoting and contrasting White v. Elcor Corp., No. 09-00-0031-CV, 
    2001 WL 359833
    (Tex. App.—Beaumont Apr. 12, 2001, no pet.) (unpublished)).
    59   
    Id. 60 See
    Johnson v. Abbe Eng’g Co., 
    749 F.2d 1131
    , 1133–34 (5th Cir. 1984).
    61 See Bagby Elevator Co. v. Schindler Elevator Corp., 
    609 F.3d 768
    , 773 (5th Cir. 2010)
    (requiring “great deference to the jury’s verdict” and reserving reversal for situations in
    which “the court believes that reasonable jurors could not arrive at any contrary conclusion”
    (quotation omitted)). Defendants plausibly suggest that if we find for J&J on even one of the
    claims against it, we must remand for a new trial on exemplary damages on all claims. Cf.
    Robertson Oil Co. v. Phillips Petroleum Co., 
    871 F.2d 1368
    , 1376 (8th Cir. 1989) (reversing
    some but not all of plaintiff’s claims and remanding for a new trial on punitive damages
    because each of the plaintiff’s theories of liability “involve[d] different conduct” and would
    therefore “support a different amount of punitive damages”). We need not reach that ques-
    tion, given our holding, which we will explain, that evidentiary errors warrant a new trial on
    all surviving claims.
    42
    Case: 16-11051     Document: 00514446553     Page: 43   Date Filed: 04/25/2018
    Nos. 16-11051, 16-11052, 16-11053, 16-11054, 16-11056,
    17-10030, 17-10031, 17-10032, 17-10034, 17-10035
    V. Request for New Trial
    In the alternative, defendants request a new trial based on irrelevant
    and prejudicial evidence. A district court can grant a new trial if it finds “the
    verdict [was] against the weight of the evidence, the damages awarded [were]
    excessive, the trial was unfair, or prejudicial error was committed in its
    course.” Smith v. Transworld Drilling Co., 
    773 F.2d 610
    , 613 (5th Cir. 1985)
    (discussing FED. R. CIV. P. 59(a)). We review that decision for abuse of dis-
    cretion, “especially” where, as here, the motion “ha[s] been denied.” Knight v.
    Texaco Inc., 
    786 F.2d 1296
    , 1299 (5th Cir. 1986) (citations omitted). Because
    the errors are sufficiently egregious, multiple, and prejudicial to pierce the
    usual deference, we order a new trial.
    A. The Deferred Prosecution Agreement and Saddam Hussein
    We begin with the most problematic evidence: the bribes paid by non-
    party J&J subsidiaries to the “henchmen” and “regime” of Saddam Hussein in
    Iraq. In 2011, J&J entered into a Deferred Prosecution Agreement (“DPA”) in
    which it “admit[ted], accept[ed], and acknowledg[ed] that it [was] responsible
    for” violations of the Foreign Corrupt Practices Act committed by non-party
    affiliates. One of the alleged violations involved bribes by two such affiliates
    to the Iraqi government, then under Hussein’s control. In the middle of trial,
    the court ordered DePuy to produce a Federal Rule of Civil Procedure 30(b)(6)
    corporate representative to testify before the jury at length about the DPA.
    Plaintiffs’ counsel then mentioned it several times, including during closing
    arguments.
    The district court allowed these repeated references to Hussein and the
    DPA because defendants had supposedly “opened the door” by eliciting testi-
    mony on their corporate culture and marketing practices. This justification is
    43
    Case: 16-11051          Document: 00514446553       Page: 44     Date Filed: 04/25/2018
    Nos. 16-11051, 16-11052, 16-11053, 16-11054, 16-11056,
    17-10030, 17-10031, 17-10032, 17-10034, 17-10035
    strained, given that J&J owns more than 265 companies in 60 countries, and
    the Iraqi portion of the DPA addresses conduct by non-party subsidiaries.
    “[T]he Rules of Evidence do not simply evaporate when one party opens
    the door on an issue.” 62 And a party cannot introduce evidence of prior bad
    “acts . . . to show that on a particular occasion the person acted in accordance
    with the character.” FED. R. EVID. 404(b)(1). Our Rule 404(b) inquiry proceeds
    in two steps: “First, it must be determined that the extrinsic offense evidence
    is relevant to an issue other than the defendant’s character. Second, the evi-
    dence must possess probative value that is not substantially outweighed by its
    undue prejudice and must meet the other requirements of rule 403.” 63 Though
    our inquiry is deferential and “inclusi[ve],” 64 we go well beyond rational-basis
    review. Even where the evidence serves some conceivable non-character pur-
    pose such as impeachment, we still must carefully consider whether the intro-
    ducing party was actually “attempting to convince the jury that [the defendant]
    was a bad man” who acted in conformity with his bad character in the case at
    hand. 65 If yes, the unduly prejudicial effect of such an argument will very
    likely substantially outweigh its probative value.
    The Rule 404(b) question lends itself to just one reasonable resolution.
    During closing arguments, Lanier suggested unequivocally that the jury treat
    62United States v. Bursey, 
    85 F.3d 293
    , 296 (7th Cir. 1996) (quotation omitted); see
    also United States v. Young, 
    470 U.S. 1
    , 6–14 (1985).
    63 United States v. Beechum, 
    582 F.2d 898
    , 911 (5th Cir. 1978) (en banc); see also
    United States v. Mendez, 643 F. App’x 418, 426–27 (5th Cir.), cert. denied, 
    137 S. Ct. 164
    , and
    cert. denied, 
    137 S. Ct. 198
    , and cert. denied, 
    137 S. Ct. 198
    (2016).
    United States v. Shaw, 
    701 F.2d 367
    , 386 (5th Cir. 1983), abrogated on other grounds
    64
    by Green v. Miller, 
    483 U.S. 756
    , 763 (1987).
    65   
    Id. 44 Case:
    16-11051        Document: 00514446553         Page: 45     Date Filed: 04/25/2018
    Nos. 16-11051, 16-11052, 16-11053, 16-11054, 16-11056,
    17-10030, 17-10031, 17-10032, 17-10034, 17-10035
    the DPA not as impeachment, nor even as otherwise-inadmissible rebuttal
    evidence offered “curatively,” 66 but as a proxy for J&J’s liability:
    If you go back and look at the DPA, that’s the deferred prosecution
    agreement where the company paid money one time because of
    kickbacks to doctors in America, the other time because of the
    bribes to Saddam Hussein’s government, the bribes in Greece,
    Romania, Poland and other places where they were bribing people
    to put in . . . their products. The DPA has [J&J] admitting its
    responsibility in it. J&J is admitting that they’re responsible.
    They have already taken this issue out of your hands realistically.
    That alone is a winner. . . . [J&J] has admitted their responsibility
    for this. That ought to be enough. [Emphasis added.]
    Indeed. Lanier tainted the result by inviting the jury to infer guilt based on
    no more than prior bad acts, in direct contravention of Rule 404(b)(1). That
    alone provides grounds for a new trial. 67
    Plaintiffs insist the DPA was admissible because it went to defendants’
    “intent, knowledge, plan, motive, and opportunity.” But that suggestion is as
    dubious as it is vague. The record makes plain that the DPA and Hussein were
    “wafted before the jury to trigger their punitive instinct.” 68 Lanier repeatedly
    referenced bribes to the Hussein “regime,” despite that the alleged bribes
    involve neither DePuy nor its products. Crucially, he then invited the jury to
    66   1 MCCORMICK ON EVID. § 57 (7th ed. Updated June 2016).
    67 At oral argument, Lanier suggested the underlying issue in questions 3, 4, and 5
    was whether J&J was a “seller,” and his reference to the DPA served only to show J&J pre-
    viously had claimed responsibility for its subsidiary’s bad acts. That theory is doubly flawed:
    First, counsel expressly referenced the bribes in Iraq, which involved nonparty subsidiaries,
    and second, questions 4 and 5—J&J’s liability for negligent undertaking and aiding and
    abetting—clearly require more than the conclusion that J&J was a “seller”—e.g., that it knew
    or should have known the product was defective. Considered in context, Lanier’s statements
    obviously invited the jury to infer liability based solely on J&J’s admissions in the DPA.
    Shows v. M/V RED EAGLE, 
    695 F.2d 114
    , 119 (5th Cir. 1983), abrogation on other
    68
    grounds recognized by Coursey v. Broadhurst, 
    888 F.2d 338
    , 342 n.4 (5th Cir. 1989).
    45
    Case: 16-11051       Document: 00514446553         Page: 46     Date Filed: 04/25/2018
    Nos. 16-11051, 16-11052, 16-11053, 16-11054, 16-11056,
    17-10030, 17-10031, 17-10032, 17-10034, 17-10035
    infer J&J’s liability based solely on that. Nothing in our otherwise inclusive
    Rule 404(b) jurisprudence countenances such a tactic. 69
    Plaintiffs lastly suggest that any error was harmless, because the court
    instructed the jury generally not to treat counsel’s statements as evidence. But
    the court “gave no cautionary instruction at the time of the improper argu-
    ment,” United States v. McPhee, 
    731 F.2d 1150
    , 1153 (5th Cir. 1984), and its
    subsequent generic instruction made no mention of the DPA. Granted, “in
    some instances, the district court may determine that a specific curative
    instruction is inappropriate because it would merely call further attention to
    the evidence, and thus be more harmful than the original comment.” United
    States v. Thomas, 548 F. App’x 987, 990 (5th Cir. 2013) (citation omitted). But
    the references to Hussein were both recurring and “highly prejudicial,” pre-
    sented as if sufficient to prove liability. 
    Id. A general
    instruction at the close of trial was “grossly inadequate under
    the circumstances.” 
    McPhee, 731 F.2d at 1153
    . Lanier’s statement was among
    “the last thing[s] the jury heard before retiring to deliberate,” United States v.
    Polasek, 
    162 F.3d 878
    , 887 (5th Cir. 1998), and a colossal verdict followed.
    Because the taint is unmistakable, the verdict cannot stand.
    B. Allegations of Race Discrimination
    Lanier coupled his impermissible references to Saddam Hussein with
    69 Plaintiffs alternatively suggest the DPA was admissible under Federal Rule of Evi-
    dence 406 as evidence of a “routine practice” of bribing doctors. Not so. In United States v.
    West, 
    22 F.3d 586
    , 592 (5th Cir. 1994), we held a handful of questionable transactions by the
    FDIC did not prove a routine “when considered in light of the FDIC’s dealings with literally
    thousands of debtors during the mid- to late 1980s.” The DPA reveals kickbacks by J&J and
    subsidiaries in four countries over the course of ten years. When considered in light of the
    fact that J&J directly or indirectly owns more than 265 companies operating in 60 countries,
    that record is far too slim to show a repetitious and semi-automatic routine of behavior.
    46
    Case: 16-11051       Document: 00514446553        Page: 47     Date Filed: 04/25/2018
    Nos. 16-11051, 16-11052, 16-11053, 16-11054, 16-11056,
    17-10030, 17-10031, 17-10032, 17-10034, 17-10035
    hearsay allegations of race discrimination. While questioning DePuy’s presi-
    dent, Andrew Ekdahl, Lanier read the following excerpts from a resignation
    letter by a former DePuy employee: “I will never understand the humor in a
    joke about me eating KFC, and yet blamed for my inability to forge relation-
    ships with people that find this humor funny. I’m tired of ‘over-hearing’ the
    word ‘N-i-g-g-e-r’ or words like it . . . .” And, to quote counsel, “she goes on and
    on and on.” Before the letter was read, defendants objected on hearsay and
    Federal Rule of Evidence 403 grounds and, after a lunch recess, moved for a
    mistrial. The court overruled the objections and denied the motion. As with
    Hussein, reference to a “filthy . . . racial email” resurfaced once more during
    Lanier’s closing argument, in his explanation of why J&J had participated in
    Ultamet’s design and knew of its defects. 70
    Plaintiffs again suggest defendants placed their character in issue by
    describing DePuy as an employee-friendly workplace. See Croce v. Bromley
    Corp., 
    623 F.2d 1084
    , 1092–93 (5th Cir. 1980). But even if that were so, the
    letter is valid impeachment only if introduced to prove the matter asserted:
    that racism infected DePuy’s workplace culture.                  That is impermissible
    hearsay.
    Plaintiffs posit that the letter was admissible under Federal Rule of
    Evidence 801(d)(2)(D), as a statement by an employee on a matter within the
    scope of employment. But Rule 801(d)(2)(D) does not apply to resignation
    letters, where the employee is no longer “inhibited by [his] relationship with
    the principal.” Young v. James Green Mgmt., Inc., 
    327 F.3d 616
    , 622 (7th Cir.
    70His exact words were, “J&J participated in the design all the way up to aSphere
    where the president of [J&J] is getting updates from the head of marketing at DePuy, Richard
    Berman of the filthy email fame and the racial email fame. Did [J&J] know of the defect?”
    47
    Case: 16-11051        Document: 00514446553          Page: 48     Date Filed: 04/25/2018
    Nos. 16-11051, 16-11052, 16-11053, 16-11054, 16-11056,
    17-10030, 17-10031, 17-10032, 17-10034, 17-10035
    2003) (quotation omitted). A contrary rule would badly flout Rule 801’s under-
    lying rationale. In reading the letter to the jury, Lanier refocused its attention
    on serious, and seriously distracting, claims of racial discrimination that defen-
    dants had no meaningful opportunity to rebut via cross-examination. This
    spectacle fortifies our conviction that a new trial is required. 71
    71 The same is true of counsels’ unit-of-time argument, made during closing argument.
    Lanier’s co-counsel first told the jury, “If you don’t consider the damages by the day, by the
    hour, by the minute, then you haven’t considered their damages.” Then, during rebuttal,
    Lanier elaborated, “[P]lease, please, please, if they [the defendants] will pay their experts a
    thousand dollars an hour to come in here, when you do your math back there don’t tell these
    plaintiffs that a day in their life is worth less than an hour’s time of this fellow, or people
    they put on the stand.” The court promptly overruled defendants’ objection.
    As a general matter, unit-of-time arguments like this one are impermissible because
    they can lead the jury to “believ[e] that the determination of a proper award for . . . pain and
    suffering is a matter of precise and accurate determination and not, as it really is, a matter
    to be left to the jury’s determination, uninfluenced by arguments and charts.” Foradori v.
    Harris, 
    523 F.3d 477
    , 512 (5th Cir. 2008) (quotation omitted). Lanier’s reference to expert
    fees was meant simultaneously to activate the jury’s passions and to anchor their minds to a
    salient, inflated, and irrelevant dollar figure. The inflammatory benchmark, bearing no
    rational relation to plaintiffs’ injuries, easily amplified the risk of “an excessive verdict.”
    Westbrook v. Gen. Tire & Rubber Co., 
    754 F.2d 1233
    , 1240 (5th Cir. 1985). The argument
    was “design[ed] to mislead,” 
    Foradori, 523 F.3d at 512
    , and tainted the verdict that followed.
    Plaintiffs urge that the district court could cure the problem by offering a “specific
    cautionary instruction” that the unit-of-time claim reflects the lawyer’s private opinion,
    “which the jury is free to disregard.” Colburn v. Bunge Towing, Inc., 
    883 F.2d 372
    , 377 (5th
    Cir. 1989). In Colburn, we vacated damages because counsel had presented “a ‘unit of time’
    argument without a specific cautionary instruction,” raising a “substantial and ineradicable
    doubt as to whether or not the jury has been properly guided in its deliberations.” 
    Id. at 377–
    78 (quotation omitted). Here, the record reveals only a general instruction that “any state-
    ment or arguments made by the lawyers are not evidence and are not instructions on the
    law.” Colburn explicitly deemed this inadequate. 
    Id. We decline
    to address defendants’ remaining evidentiary challenges regarding
    DePuy’s 2007 DPA, the Doubt is Their Product book, cancer and suicide, the “thousands” of
    pending Ultamet suits, and unrelated transvaginal mesh suits. The district court should
    weigh carefully the applicability of Rules 403 and 404(b) and, where necessary, should issue
    specific instructions to avoid undue prejudice. See, e.g., 
    Croce, 623 F.2d at 1092
    .
    48
    Case: 16-11051        Document: 00514446553           Page: 49     Date Filed: 04/25/2018
    Nos. 16-11051, 16-11052, 16-11053, 16-11054, 16-11056,
    17-10030, 17-10031, 17-10032, 17-10034, 17-10035
    VI. Rule 60(b)(3) Motion
    In their companion appeal, 72 defendants challenge the district court’s
    denial of a motion for relief from judgment under Rule 60(bA)(3) on the ground
    that Lanier concealed payments to two key expert witnesses. We agree and
    reverse.
    A. Facts
    The story begins in August 2015, when, in preparation for the second
    bellwether trial (Aoki), plaintiffs’ counsel made expert disclosures listing
    Morrey Sr. and Morrey Jr. as expert witnesses “who ha[v]e not been retained
    or specially employed to provide expert testimony in this litigation.” 73 In
    December of that year, Lanier met with Morrey Sr. to discuss the history of
    72 In their cross-appeal, plaintiffs assert that Section 41.008 of the Texas Civil Practice
    and Remedies Code—which caps exemplary damages at twice the amount of economic dam-
    ages, plus non-economic damages not exceeding $750,000—violates the state constitutional
    right to “open courts,” TEX. CONST., art. 1, § 13, and the federal Constitution’s equal protec-
    tion clause. Those claims are frivolous.
    To the first, Texas courts have uniformly held that Section 41.008 does not violate the
    “open courts” provision. See Waste Disposal Ctr., Inc. v. Larson, 
    74 S.W.3d 578
    , 588 (Tex.
    App.—Corpus Christi 2002, pet. denied) (“[T]he open courts provision of the Texas Constitu-
    tion serves to protect only private rights and interests, [whereas] the statutory cap on exem-
    plary damages affects only public punishment interests[.]” (citation omitted)); Hall v. Dia-
    mond Shamrock Ref. Co., L.P., 
    82 S.W.3d 5
    , 22 (Tex. App.—San Antonio 2001) (same), rev’d
    on other grounds, 
    168 S.W.3d 164
    (Tex. 2005); cf. Seminole Pipeline Co. v. Broad Leaf Part-
    ners, Inc., 
    979 S.W.2d 730
    , 758 (Tex. App.—Houston [14th Dist.] 1998, no pet.). To the second,
    plaintiffs suggest the cap’s differentiation between economic and non-economic injury effec-
    tively discriminates based on wealth. But even if that were so, the law need only survive
    rational-basis review, Smith v. Botsford Gen. Hosp., 
    419 F.3d 513
    , 519–20 (6th Cir. 2005),
    and Section 41.008 does so by injecting predictability into exemplary damages awards and
    preempting potentially unconstitutional awards. Cf. State Farm Mut. Auto. Ins. Co. v. Camp-
    bell, 
    538 U.S. 408
    , 426 (2003); BMW of N. Am., Inc. v. Gore, 
    517 U.S. 559
    , 574–75 (1996)
    (recognizing constitutional limits on a punitive-damages award). The cross-appeal fails.
    73Non-retained, or uncompensated, experts need not prepare expert reports in
    advance of their testimony. FED. R. CIV. P. 26(a)(2)(B).
    49
    Case: 16-11051        Document: 00514446553          Page: 50      Date Filed: 04/25/2018
    Nos. 16-11051, 16-11052, 16-11053, 16-11054, 16-11056,
    17-10030, 17-10031, 17-10032, 17-10034, 17-10035
    MoM implants. Toward the end of their meeting, Lanier offered payment,
    which Morrey Sr. declined. Lanier then asked whether there was a charity to
    which he could contribute, and Morrey identified his alma mater, St. Rita’s
    Catholic School in Fort Worth. Lanier wrote it a $10,000 check, dated Decem-
    ber 4, 2015—five weeks before to trial.
    The Aoki trial began January 11, 2016. Plaintiffs claim Morrey Sr. first
    agreed, and was called on, to testify two weeks after the trial had already
    begun. 74 Yet, he appears in the trial transcripts as early as opening state-
    ments, when plaintiffs’ counsel described him as “Mayo trained” and “emin-
    ently qualified to give [his opinion].” Once Morrey Sr. did eventually take the
    stand, Lanier explained how he had “hoped you [Morrey Sr.] would be testi-
    fying.” Recounting their meeting in December, Lanier described to the jury
    how they shared the “best apple pie in the world.” St. Rita’s and the $10,000
    check went unmentioned.
    Morrey Sr. was a compelling witness. He walked the jury through the
    history of MoP and MoM designs and explained that he used MoP, a safer
    alternative, on all his patients, including Billy Graham and former-President
    George H.W. Bush. During both the direct and redirect, Lanier repeatedly
    emphasized Morrey Sr.’s independence—reflected in his peer-reviewed work,
    royalty-collection practices, and continuing-education lectures—and con-
    trasted that independence with the purportedly biased and self-interested
    74 On the eve of Morrey Sr.’s testimony, defendants filed a late-night motion asserting
    that plaintiffs had improperly designated him as a “nonretained” expert—he was not a treat-
    ing physician of any of the plaintiffs, and his opinions were not formed in the course of
    treatment—and that his testimony should therefore be excluded. At trial the next day, the
    court allowed Morrey Sr. to testify, but only on condition that he later provide a written report
    and make himself available for a deposition and future cross-examination. Plaintiffs eventu-
    ally provided defendants with an expert report summarizing his testimony, but it made no
    mention of any compensation agreement, and the doctor never reviewed it.
    50
    Case: 16-11051      Document: 00514446553         Page: 51    Date Filed: 04/25/2018
    Nos. 16-11051, 16-11052, 16-11053, 16-11054, 16-11056,
    17-10030, 17-10031, 17-10032, 17-10034, 17-10035
    work of DePuy’s doctors.
    His son, Morrey Jr., also an orthopaedic surgeon, performed Greer’s
    revision surgery and evaluated Klusmann. Before Morrey Jr.’s testimony,
    defendants moved to exclude any testimony that would exceed his role as a
    treating physician. During arguments on the motion, Lanier emphasized how
    “very important” it was “for the Court to know and the record to reflect that
    Dr. Morrey was properly and timely disclosed as nonretained. We have no
    economic arrangement with him. We do not fund him. We do not pay him his
    time . . . .” 75 Echoing his father, Morrey Jr. testified MoP was “always . . . a
    safer alternative than” MoM, and that there is no “benefit in using [MoM] that
    outweighs [the] risk.”
    Long after the Morreys had exited the scene, Lanier reminded the jury
    of their compelling pro bono testimony, which he contrasted repeatedly with
    the “bought testimony” of defendants’ paid experts. For example, when defense
    expert pathologist Scott Nelson claimed he was compensated “like all experts,”
    Lanier seized the opportunity: “Dr. Matt Morrey wasn’t compensated. Bernard
    Morrey wasn’t compensated. . . . For him to say --.” The court cut short and
    quickly sustained the objection. And again on cross, Lanier returned to the
    subject, reminding the jury that “Dr. Morrey, Sr. . . . the one that put in Presi-
    dent Bush’s metal-on-poly hips . . . came and testified here, on his own.” Addi-
    tionally, the Morreys featured prominently in Lanier’s closing statement: “Dr.
    Morrey senior, no expense coming to this courtroom, not a paid witness.” And
    again:
    If President Bush could talk to the surgeon and pick him, he’s good
    75 The judge allowed the testimony on the condition that Morrey Jr. file a report and
    be available for cross-examination. Morrey Jr. later provided a summary of his testimony,
    and defendants did not recall him for further cross.
    51
    Case: 16-11051     Document: 00514446553     Page: 52    Date Filed: 04/25/2018
    Nos. 16-11051, 16-11052, 16-11053, 16-11054, 16-11056,
    17-10030, 17-10031, 17-10032, 17-10034, 17-10035
    enough for me. And to pick a metal-on-poly hip, good enough for
    me. That’s who did the surgery. That’s the kind of [implant] that
    he put in. And the reason that he was here is I called his son and
    said what happened here. He said I don’t use this kind of hip. Why
    not? My dad told me not to. That’s not bought testimony. That’s
    not conjured. That’s not rehearsed. That’s real life. That’s the
    way they lived. [Emphasis added.]
    The jury was instructed that it could “consider any bias evidence that the
    expert witness has been or will be paid for . . . reviewing the case and testify-
    ing.” As between “real life” and “bought testimony,” it chose the former by a
    margin of $502 million.
    But that choice was a false one, manufactured entirely by Lanier. Dur-
    ing preparation for the third bellwether trial, details emerged suggesting that
    (a) Morrey Sr. had directed a $10,000 donation to his alma mater before trial,
    (b) Morrey Jr. had expected compensation from the start, and (c) both received
    sizeable sums after the verdict. The revelations began when plaintiffs’ counsel
    chose to bring back the Morreys and redesignate them as traditional expert
    witnesses for the next trial. After shifting designations, plaintiffs produced
    two letters from Lanier, both dated April 7, 2016, thanking the Morreys for
    their “pro bono” testimony at the Aoki trial and enclosing generous checks—
    $35,000 to Morrey Sr. and $30,000 to Morrey Jr.
    The checks raised red flags. And so defendants’ counsel questioned Mor-
    rey Sr. during a deposition about whether he had received “any other com-
    pensation” for his testimony. His reply revealed, for the first time, the exis-
    tence of the donation: “[Lanier and I] had a preliminary discussion, and a check
    was given to a charitable organization[,] . . . St. Rita’s Catholic School in Fort
    Worth.”
    A similarly striking revelation emerged during Morrey Jr.’s deposition.
    52
    Case: 16-11051    Document: 00514446553       Page: 53   Date Filed: 04/25/2018
    Nos. 16-11051, 16-11052, 16-11053, 16-11054, 16-11056,
    17-10030, 17-10031, 17-10032, 17-10034, 17-10035
    He told defendants’ counsel that he had expected payment from the start and
    had even inquired of plaintiffs’ counsel about how to receive payment. Rather
    than rebuffing that request as inappropriate, plaintiffs’ team told Morrey Jr.
    “don’t worry about that.” What truly surprised Morrey Jr. was not the fact of
    payment, but the amount—$30,000 was apparently “twice” what he had been
    expecting. As for the “factual basis” of his expectations, Morrey explained that
    it flowed from his understanding of what happens “whenever you’re involved in
    these as a witness . . . . [W]e have a fee sheet that we fill out our hours involved
    and we submit it afterwards.” (Emphasis added.)
    Misrepresentations in hand, defendants moved for relief from judgment
    under Rule 60(b)(3), which affords redress in cases of “fraud . . . , misrepresen-
    tation, or misconduct.” FED. R. CIV. P. 60(b)(3). The district court denied the
    motion. It found no “agreement for compensation” at the time of trial; and it
    reasoned that, regardless, defendants had “not shown how evidence of [p]lain-
    tiffs’ experts receiving a fraction of the compensation of [d]efendants’ experts
    would have produced a different result at trial.”
    B. Analysis
    Defendants had a heavy burden, in the district court, to show by clear
    and convincing evidence that plaintiffs had engaged in misrepresentation that
    prevented defendants from fully and fairly presenting their case. Wilson v.
    Thompson, 
    638 F.2d 801
    , 804 (5th Cir. Unit B Mar. 1981). Our review is doubly
    deferential: We consider the trial court’s factual findings to the contrary for
    clear error, 
    id., and we
    reverse only if its clear-error judgment constitutes
    abuse of discretion, Hesling v. CSX Transp., Inc., 
    396 F.3d 632
    , 638 (5th Cir.
    2005). This is the rare case in which counsel’s deceptions were sufficiently
    obvious, egregious, and impactful to penetrate the layers of deference that
    53
    Case: 16-11051        Document: 00514446553          Page: 54      Date Filed: 04/25/2018
    Nos. 16-11051, 16-11052, 16-11053, 16-11054, 16-11056,
    17-10030, 17-10031, 17-10032, 17-10034, 17-10035
    would ordinarily shield against reversal.
    The district court misstated the substantive test under Rule 60(b)(3).
    The inquiry is not whether the misrepresentation altered the result, 76 but
    whether it “prevented the losing party from fully and fairly presenting his case
    or defense.” 77 Defendants need only show that the alleged misrepresentations
    foreclosed potentially promising cross-examination tactics; the misrepresenta-
    tions need not be outcome-determinative, nor even intentional, to compel
    reversal. 78
    Now, to the question whether Lanier, knowingly or unknowingly, misled
    the jury in representing repeatedly that the Morreys had neither pecuniary
    interest nor motive in testifying. The facts speak pellucidly: The pre-trial
    donation check, Morrey Jr.’s expectation of compensation, and the post-trial
    payments to both doctors are individually troubling, collectively devastating.
    Consider first the check to St. Rita’s. In December, Lanier and Morrey
    Sr. met at the latter’s house, they discussed the contents of his testimony, and
    Lanier made a donation to a charity of Morrey Sr.’s choosing, all before trial. 79
    
    76Wilson, 638 F.2d at 804
    (“[A] party . . . may prevail without showing that the alleged
    fraud affected the outcome of the prior trial.”).
    77 Rozier v. Ford Motor Co., 
    573 F.2d 1332
    , 1345 (5th Cir. 1978) (emphasis added)
    (quotation omitted). In Rozier, 
    id. at 1349,
    we reversed the denial of plaintiff’s Rule 60(b)(3)
    motion after defendants had failed to produce a potentially inculpatory document before trial.
    “Mutual knowledge of all the relevant facts gathered by both parties is essential to proper
    litigation,” 
    id. at 1344
    (citations omitted), and prior disclosure could “have made a difference
    in the way plaintiff’s counsel approached the case or prepared for trial,” 
    id. at 1342
    (quotation
    omitted).
    See Lonsdorf v. Seefeldt, 
    47 F.3d 893
    , 897 (7th Cir. 1995); accord Bros Inc. v. W.E.
    78
    Grace Mfg. Co., 
    351 F.2d 208
    , 211 (5th Cir. 1965).
    79Plaintiffs’ counsel did not disclose the check until after oral argument in a Fifth
    Circuit Rule 28(j) letter. Interestingly, plaintiffs’ briefing relies on Morrey Sr.’s deposition
    54
    Case: 16-11051       Document: 00514446553         Page: 55     Date Filed: 04/25/2018
    Nos. 16-11051, 16-11052, 16-11053, 16-11054, 16-11056,
    17-10030, 17-10031, 17-10032, 17-10034, 17-10035
    Plaintiffs had already designated Morrey Sr. as a non-retained expert who
    might testify, and they had been priming the jury for his appearance as early
    as opening statements. Once it was “formally” decided that Morrey Sr. would
    testify, Lanier’s failure to disclose the donation, and his repeated insistence
    that Morrey Sr. had absolutely no pecuniary interest in testifying, were un-
    equivocally deceptive. 80
    In his defense, Lanier asserts the date of the donation “confirms [it] was
    a ‘thank you’ for time spent with [plaintiffs’ counsel] rather than a promise by
    [Lanier] to make a charitable contribution in exchange for Dr. Morrey’s testi-
    mony.” Before interrogating this story, let us speak plainly: Lawyers cannot
    engage with a favorable expert, pay him “for his time,” then invite him to tes-
    tify as a purportedly “non-retained” neutral party. That is deception, plain and
    simple. And to follow that up with post-trial “thank you” check merely com-
    pounds the professional indiscretion.
    As for counsel’s explanation, we cannot rule out the possibility Lanier
    believes what he says. But our inquiry turns on the various actors’ conduct
    and what it reasonably suggests, rather than self-serving ex-post statements
    as to state of mind. A lawyer would not make a $10,000 donation to an expert’s
    charity of choice—a “gift” for his time—without realizing the “gift” would likely
    induce subsequent testimony.
    Granted, the record includes no evidence that Lanier stated expressly
    testimony for the proposition that the check was tendered after his testimony. And when
    pressed at oral argument that a pre-trial date would invite “devastating impeachment,”
    Lanier’s co-counsel conceded, “I agree with your logic. I do agree with your logic. But Mr.
    Lanier is not sure exactly when it was done.”
    80 Saunders v. Comm’r, 
    720 F.2d 871
    , 873 (5th Cir. 1983) (“One need not personally
    receive the taxable benefits provided one has the power to determine the recipient. . . . One
    may not assign income actually earned and thereby avoid the tax impact.”).
    55
    Case: 16-11051      Document: 00514446553         Page: 56    Date Filed: 04/25/2018
    Nos. 16-11051, 16-11052, 16-11053, 16-11054, 16-11056,
    17-10030, 17-10031, 17-10032, 17-10034, 17-10035
    that the donation came with strings attached. But sometimes, in matters of
    persuasion, what goes without saying is best left unsaid. Take Lanier’s post-
    trial checks. At oral argument, he acknowledged those thank-you payments
    were designed to induce the Morreys to testify at the next bellwether trial,
    despite never expressly making that request. The pattern leaves little doubt
    about the desired effects of the donation. 81
    Morrey Jr.’s expectation of payment is equally troubling. Lanier claims
    Morrey Jr. did not necessarily expect payment “by the Plaintiffs,” and even if
    he had, Lanier and crew were not “mind-readers” and cannot be expected to
    have divined Morrey Jr.’s secret wishes. Such suggestions require a suspen-
    sion of common sense. As Morrey Jr.’s deposition makes clear, his expectation
    of payment derived from his intuitive understanding that expert witnesses are
    entitled to payment for their services. That intuition led him to inquire about
    payment with the plaintiffs, the parties that solicited and directly benefited
    from his services.
    As for “mind reading,” plaintiffs’ counsel has it backward: This is a free-
    market society in which Morrey Jr.’s expectation of compensation was the stan-
    dard one. We find, by the “clear and convincing” evidence of common sense,
    that Lanier misled the jury in creating the impression that Morrey Jr. had
    neither pecuniary incentive nor motive in testifying. Neither our double defer-
    ence nor counsel’s specious reasoning can alter that conclusion.
    Finally, the deceptions obviously prevented defendants from “fully and
    81 Suppose we did believe Lanier’s various and independent explanations for why he
    could pay his expert before and after trial without ever compromising the witness’s non-
    retained status. An opinion countenancing his behavior would read like a blueprint on how
    to evade Rule 26 with impunity. Parties could pay experts “for their time” before trial and
    later exchange compelling “pro bono” testimony for sizable, post-trial “thank you” checks.
    56
    Case: 16-11051       Document: 00514446553          Page: 57     Date Filed: 04/25/2018
    Nos. 16-11051, 16-11052, 16-11053, 16-11054, 16-11056,
    17-10030, 17-10031, 17-10032, 17-10034, 17-10035
    fairly” defending themselves. See 
    Rozier, 573 F.2d at 1339
    . Lanier emphasized
    to the court the “importan[ce]” of Drs. Morreys’ pro bono testimony, and Lanier
    repeatedly leveraged the false contrast between defendants’ paid mercenaries
    and plaintiffs’ unpaid altruists to his clients’ advantage. At the least, disclos-
    ure would have enabled defendants to try to impeach the Morreys with evi-
    dence of compensation. 82 The district court abused its discretion in concluding
    otherwise. Calculated or not, falsehoods marred plaintiffs’ victory. The verdict
    cannot stand.
    Conclusion
    DePuy is entitled to JMOL on Greer’s and Peterson’s defective market-
    ing claims, and J&J is entitled to JMOL on all plaintiffs’ aiding-and-abetting
    claims. The remaining claims avoid JMOL, though a new trial is required for
    the district court’s serious evidentiary errors and counsel’s misrepresentations.
    The judgments are REVERSED in part, and the judgment and the order
    denying Rule 60(b)(3) relief are VACATED, and the remaining claims are
    REMANDED for a new trial consistent with this opinion. 83
    82Plaintiffs respond that the “possibility of bias was exponentially greater with Defen-
    dants’ experts,” because they were paid far greater sums of money “over many years.” They
    add that Morrey Sr.’s decision to divert the $10,000 to a charity would only serve to bolster
    his credibility. But these jury arguments confuse the inquiry. The central question is not
    whether the non-disclosure was outcome-determinative but, instead, whether disclosure
    would have opened up potentially promising impeachment tactics on cross-examination,
    which it patently did.
    83 As the court confirmed by questions at oral argument, the defendants, despite their
    serious critiques of the district judge’s actions in this case and related MDL proceedings, see
    In re DePuy Orthopaedics, Inc., 
    870 F.3d 345
    , 351 (5th Cir. 2017) (finding “grave error”), have
    not asked us to require these cases to be reassigned to a different judge under “this court’s
    supervisory power to reassign,” United States v. Stanford, 
    883 F.3d 500
    , 516 (5th Cir. 2018).
    We express no view on the issue but note that reassignment is both “extraordinary” and
    “rarely invoked.” 
    Id. (citation and
    internal quotation marks omitted).
    57
    

Document Info

Docket Number: 16-11051; 16-11052; 16-11053; 16-11054; 16-11056; 17-10030; 17-10031; 17-10032; 17-10034; 17-10035

Citation Numbers: 888 F.3d 753

Judges: Smith, Barksdale, Higginson

Filed Date: 4/25/2018

Precedential Status: Precedential

Modified Date: 10/19/2024

Authorities (83)

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Greer v. Miller , 107 S. Ct. 3102 ( 1987 )

Kinzbach Tool Co. v. Corbett-Wallace Corp. , 138 Tex. 565 ( 1942 )

Kulko v. Superior Court of Cal., City and County of San ... , 98 S. Ct. 1690 ( 1978 )

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janis-m-wilson-and-gerard-g-richardson-in-behalf-of-themselves-and , 638 F.2d 801 ( 1981 )

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BMW of North America, Inc. v. Gore , 116 S. Ct. 1589 ( 1996 )

Medtronic, Inc. v. Lohr , 116 S. Ct. 2240 ( 1996 )

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