King v. Depuy Orthopaedics, Inc.

• Court: Court of Appeals for the Ninth Circuit
• Decided: January 9, 2026
• Docket: 24-5040
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JAN 9 2026 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

MICHAEL KING; DEBORAH J. KING, No. 24-5040 D.C. No. Plaintiffs - Appellants, 2:23-cv-00196-SMB v. MEMORANDUM* DEPUY ORTHOPAEDICS, INC.; DEPUY PRODUCTS INCORPORATED; DEPUY SYNTHES INCORPORATED; JOHNSON & JOHNSON INC.; JOHNSON & JOHNSON SERVICES; JOHNSON & JOHNSON INTERNATIONAL,

Defendants - Appellees.

Appeal from the United States District Court for the District of Arizona Susan M. Brnovich, District Judge, Presiding

Argued and Submitted September 15, 2025 Phoenix, Arizona

Before: COLLINS, MENDOZA, and DESAI, Circuit Judges. Dissent by Judge COLLINS.

Michael King and Deborah King (“appellants”) appeal the Final Judgment

entered by the district court following the conclusion of a trial during which the

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. jury found in favor of DePuy Orthopaedics, Inc. et al. (“appellees”). In particular,

they argue that the district court abused its discretion by issuing a curative

instruction to the jury related to the testimony of one of appellants’ witnesses, Dr.

Mullen. We have jurisdiction under 28 U.S.C. § 1291. We affirm.

“We review discovery sanctions for abuse of discretion and the district

court’s underlying findings of fact for clear error.” Jones v. Riot Hosp. Grp. LLC,

95 F.4th 730, 734 (9th Cir. 2024). “Whether the district court applied the correct

legal standards in imposing sanctions raises a question of law that we review de

novo.” Gregory v. State of Montana, 118 F.4th 1069, 1076 (9th Cir. 2024). We

review the district court’s formulation of jury instructions for abuse of discretion.

See Beachy v. Boise Cascade Corp., 191 F.3d 1010, 1012 (9th Cir. 1999).

Appellants contend that the district court erred in two ways: (1) by

instructing the jury that “[t]here was an effort to withhold Dr. Mullen’s

compensation from defendant and the jury”; and (2) informing the jury that “[t]he

excessive and undisclosed payments to Dr. Mullen may have affected the

credibility of his testimony.”

Under Federal Rule of Civil Procedure 37(c)(1), if a party does not provide

information regarding a witness as required under Rule 26(a) or (e), the district

court may impose a range of discovery sanctions such as informing the jury of the

party’s failure to comply with these obligations. Fed. R. Civ. P. 37(c)(1). At oral

2 24-5040 argument, appellants conceded that they were under a duty to supplement their

prior discovery responses as to Dr. Mullen at the time of trial. Appellants,

however, argued that they did not believe that the payments to Dr. Mullen fell

within the scope of appellees’ prior discovery request for “copies of all forms of

communication between Plaintiff and/or Plaintiff’s attorney(s) and Plaintiff’s

orthopaedic surgeons” because the payments were not “communications.”

Appellants’ arguments are unavailing. Payments to Dr. Mullen fell within

the scope of appellee’s discovery request, and appellants had communications with

Dr. Mullen in their possession. The district court was therefore authorized by Rule

37(c)(1) to issue a curative instruction to the jury.

Our focus upon review is whether the jury instructions, when viewed as a

whole, were “misleading or represented a statement inadequate to guide the jury’s

deliberations.” United States v. Powell, 955 F.2d 1206, 1210 (9th Cir. 1991)

(quoting United States v. Kessi, 868 F.2d 1097, 1101 (9th Cir. 1989)); see also

United States v. Soulard, 730 F.2d 1292, 1303 (9th Cir. 1984) (“A trial court is

given substantial latitude in tailoring jury instructions so long as they fairly and

adequately cover the issues presented.” (citing United States v. Abushi, 682 F.2d

1289, 1299 (9th Cir. 1982))). We find that the district court did not abuse its

discretion. The curative instruction was neither misleading nor inadequate to guide

the jury. The district court’s instruction made it clear that it was the jury’s role to

3 24-5040 “assess[] the veracity of Dr. Mullen’s testimony,” and merely provided the jury

with information to consider in making that assessment.

Regardless, our precedent holds that instructions or comments to a jury, even

if potentially misleading or prejudicial, are generally not an abuse of discretion

when paired with “appropriate cautionary instructions.” United States v. Carlos,

478 F.2d 377, 379 (9th Cir. 1973) (“Normally, if the appropriate cautionary

instructions are given it is made clear to the jury that they are the final arbiters of

the credibility of witnesses and there will be no reversible error.”). Here, the

district court judge provided a cautionary instruction to the jury that stressed their

role as the final arbiters of fact. This was sufficient to cure any potential

impropriety in the jury instructions.1 See Navellier v. Sletten, 262 F.3d 923, 943

(9th Cir. 2001) (“[E]ven if the comment could be considered prejudicial, any

prejudice was cured by the court’s contemporaneous curative instruction and the

final jury instructions, which stressed that the jurors were the sole judge of the

facts.”).

We AFFIRM the Final Judgment.

1 For this reason, we respectfully disagree with the dissent’s conclusion that the district court committed reversible error, even if we were to assume the district court’s jury instructions were “prejudicially ‘misleading.’”

4 24-5040 FILED King v. DePuy Orthopaedics, Inc., No. 24-5040 JAN 9 2026 MOLLY C. DWYER, CLERK COLLINS, Circuit Judge, dissenting: U.S. COURT OF APPEALS

I agree with the majority’s conclusion that the conduct of Plaintiff’s counsel

below was sufficient to trigger the district court’s authority to give a curative

instruction concerning the issue of the payments made to Dr. Mullen. At oral

argument in this court, Plaintiff’s counsel agreed that Plaintiff’s discovery

obligations were continuing during the relevant time frame. Taking that conceded

premise as correct for purposes of this appeal, I agree that the district court

properly concluded that Plaintiff violated those continuing obligations by failing to

produce communications between Dr. Mullen and Plaintiff’s counsel revealing the

“astronomical” payment made by Plaintiff’s counsel to Dr. Mullen. See Memo

Dispo. at 2–3. Accordingly, I agree that the district court had authority to impose

an appropriate corrective sanction, including a curative instruction. See FED. R.

CIV. P. 37(c)(1). But the district court committed reversible error in giving the

particular curative instruction that it did, because the instruction was prejudicially

“misleading.” United States v. Powell, 955 F.2d 1206, 1210 (9th Cir. 1991)

(citation omitted).

The problem with the court’s instruction is that it misleadingly suggested

that Dr. Mullen had been involved in the failure to disclose the payment, when

there was simply no factual basis for that implication. The instruction stated that, “[i]n assessing the veracity of Dr. Mullen’s testimony, the jury should consider

that: (1) There was an effort to withhold Dr. Mullen’s compensation from

defendant and the jury; and (2) The excessive and undisclosed payments to Dr.

Mullen may have affected the credibility of his testimony.” The use of the passive

voice in the first clause (“there was an effort” to withhold information “from . . .

the jury”), coupled with the statement that the “undisclosed” payments “may have

affected the credibility of his testimony,” most naturally suggests that Dr. Mullen

was in on the effort to withhold the payments. (Why else would these

“undisclosed payments” “affect[] the credibility of his testimony”?) But nothing in

the record supports such a suggestion. On the contrary, Dr. Mullen properly

disclosed the payments when directly asked in cross-examination.

The district court’s error was not harmless. “For ordinary trial errors, such

as when the district court improperly instructs the jury, the party prevailing below

need only demonstrate that ‘it is more probable than not that the jury would have

reached the same verdict had it been properly instructed.’” Chinaryan v. City of

Los Angeles, 113 F.4th 888, 903 (9th Cir. 2024) (citation omitted). On this record,

Defendant has failed to establish harmless error. First, Defendant heavily

emphasized the curative instruction during closing arguments. Defendant’s trial

counsel argued that the curative instruction was “one of the most important” and

“critical” instructions from the court because “it tells you a lot about what’s going

2 on in this case.” Second, Defendant used the curative instruction to argue that Dr.

Mullen’s testimony should be disbelieved with respect to key merits issues in the

case. Third, Defendant’s counsel affirmatively urged the jury to draw the false

inference that Dr. Mullen was responsible for the withholding of the information

about the payments, arguing that his testimony was “not truthful” because “he

didn’t disclose to you that he was getting paid 20 grand for two hours” (emphasis

added). Fourth, the remaining evidence at trial did not so overwhelmingly favor

Defendant as to render this error harmless.

In finding harmlessness, the majority contends that the district court

“provided a cautionary instruction to the jury that stressed their role as the final

arbiters of fact.” See Memo. Dispo. at 4 & n.1. To the extent that the majority’s

phrasing might be read to suggest that the district court provided a “cautionary”

instruction that was tailored to its curative instruction concerning Dr. Mullen, that

insinuation is false: the “cautionary” language the majority references is simply the

standard instruction about the jury’s duty to find the facts based on the evidence.

That sort of boilerplate instruction could not cure the relevant prejudice in this

case. The problem here is that the district court’s flawed instruction concerning Dr.

Mullen communicated to the jury the district court’s finding that “[t]here was an

effort to withhold Dr. Mullen’s compensation from defendant and the jury,” and

that court finding was inescapably based on facts (such as the details of the

3 discovery process and the parties’ obligations under that process) that were not

presented to the jury. The jury was thus provided with a court-found “fact” that

misleadingly suggested that Dr. Mullen was a party to the deception, and the jury

was instructed to take that fact as true without knowing the underlying facts on

which it was based. As a result, the jury lacked any basis to detect, much less

independently evaluate, the erroneous nature of the district court’s misleading

instruction, and the prejudice here therefore could not be cured by the mere giving

of a standard instruction that it is the jury’s role to find the ultimate facts. Put

simply, the jury’s ability to carry out its fact-finding role in this case was distorted

by the court’s flawed instruction, and nothing else in the instructions cured that.

Accordingly, I would reverse the district court’s judgment and remand for a

new trial. I respectfully dissent.