Presiding MDL Judge Rodgers in the Northern District of Florida allowed defense counsel to use a demonstrative in closing, but only on the condition that counsel make clear to the jury that “the NNR was 23” (which was high-lighted and bolded in a call-out) is not being offered for the truth of the matter asserted.  (Such test results had apparently been excluded from evidence, although the existence of the study was apparently allowed to be used as impeachment evidence with respect to the credibility of one of plaintiff’s experts.)  In closing, defense counsel did not make this clear, and was sanctioned $10,000. Her co-counsel, who had been present in Court for the instruction, and was responsible for communicating the order to the closing attorney, was also sanctioned $2,000.


Trial Transcript, Baker v. 3M Company, No.20-0039 (MDL No. 2885, In re Combat Arms Earplug Products Liability Litigation) (N.D.Fla. June 18, 2021) at pp. 4 and 153-182.