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Did Plaintiff’s Counsel Violate the Golden Rule Justifying a New Trial? Court Says No Based on a “–“

Plaintiff Bruce Saffran, M.D. (“Dr. Saffran”) filed a patent infringement case against Johnson & Johnson. After a jury trial, the jury returned a verdict in favor of Dr. Saffran finding that the patent was valid and that Johnson & Johnson had willfully infringed the patent. The jury found damages in the amount of $482 million. After the jury returned its verdict, the district court granted a Fed.R.Civ.P. 50(a) motion, finding no willful infringement. Johnson & Johnson also moved for a new trial under Fed.R.Civ.P. 59.

Johnson & Johnson brought its motion on two separate grounds: (1) the evidence of willful infringement tainted the trial proceedings and (2) counsel for Plaintiff violated the “Golden Rule.” With respect to the willful infringement argument, the district court noted that it could only make this determination after the development of a full record and it was not appropriate to dismiss the willful infringement allegations on summary judgment. The district court also ruled that it was not convinced a new trial was warranted because of any alleged prejudice to Johnson & Johnson due to the introduction of the willfulness claims at trial. To reach this conclusion, the district court found that the argument failed because the evidence would have been admissible for induced infringement and that, regardless, the jury was instructed separately regarding the law for each type of claim and the type of evidence that could be considered for that claim. Notably, Johnson & Johnson did not object to the jury instructions on these points.

With respect to the contention that plaintiff’s counsel violated the Golden Rule, the district court explained that the Golden Rule is a “plea to the jury that they should put themselves in the shoes of the plaintiff and do unto him as they would have done unto themselves under similar circumstances.” It is not appropriate and is improper “because it encourages the jury to depart from neutrality and to decide the case on the basis of personal interest and bias rather than on evidence.”

In this case, the plaintiff’s counsel stated to the jury, during argument, “I mean, just imagine how–it’s hard for me to imagine how that would feel, okay?” The district court held that plaintiff’s counsel might have gone in the direction of violating the Golden Rule, but quickly changed directions to correct himself before the rule was violated. “Although counsel may have been in the process of starting to ask the jury to step into Dr. Saffran’s shoes (e.g., “just imagine how”), counsel quickly corrected himself when he paused (i.e., the dash in the quote) and changed directions. Thus, counsel never asked the jury to step into the plaintiff’s shoes.”

The district court also held that Johnson & Johnson’s counsel did not object to the district court and did not give the district court an opportunity to cure any potential prejudice. “Finally, even though the Court does not hold that counsel for Plaintiff violated the “Golden Rule,” Defendants never objected to the Court and [did not give] the Court an opportunity to cure any potential prejudice.”

Accordingly, the motion for new trial was denied.

Saffran v. Johnson & Johnson, Case No. 2:07-CV-451 (TJW) (E.D. Tex. Sept. 20, 2011)
The authors of are patent trial lawyers at Jeffer Mangels Butler & Mitchell LLP. We represent inventors, patent owners and technology companies in patent licensing and litigation. Whether pursuing patent violations or defending infringement claims, we are aggressive and effective advocates for our clients. For more information contact Stan Gibson at 310.201.3548 or