$1 Billion Jury Award in 3rd Pinnacle Trial

A federal jury in Texas awarded $40 million in compensatory damages to six people implanted with DePuy Orthopaedics Inc.’s Pinnacle metal-on-metal hip implant in December 1, 2016.

Then the jury awarded more than $1 billion in punitive damages. The staggering punitive award is sobering for J&J (Johnson & Johnson), DePuy’s parent company, considering there are still another 8, 500 plaintiffs in multidistrict litigation being handled by the same Dallas federal court. The jurors’ verdict came after less than a day of deliberations. The trial began on October. 3.

Plaintiffs 2, DePuy 1

The score is now 2-1 in favor of the plaintiffs.

This was the third bellwether trial of the multidistrict litigation representing patients who claim that the company failed to warn doctors and consumers about complications possible from the device, which included pain and subsequent removal surgeries. In 2014, the company won the first trial.

Then this past March, a jury awarded more than $500 million to five patients who had similar physical and medical complications allegedly caused by the implant. That award was cut by roughly 70% due to a Texas state law capping punitive damages in plaintiff cases.

According to the National Law Journal, punitive damages award from this third trial won’t be subject to a cap because that case was tried under the laws of California, where those six plaintiffs were from.

A fourth bellwether trial, which will involve 10 patients, has been scheduled by U.S. District Judge Ed Kinkeade in Dallas for September 2017.

Call to Settle

“Once again, a jury has listened to the testimony of both sides, and returned a verdict affirming what we’ve known all along: a responsible company would settle these cases and take care of their injured consumers, rather than forcing them through expensive and vexatious litigation just to delay justice, ” said lead attorney Mark Lanier of the Lanier Law Firm in Houston. “This jury spoke loud and clear, and I hope J&J [Johnson & Johnson] will finally listen.”

Appeal Promised

But lawyers for J&J said they would appeal. The company says its ability to defend against the claims was wrongly hindered by several rulings by Judge Kinkeade. The lawyers claim the rulings undermined their “ability to properly and fairly defend against the allegations, ” including the decision to try the cases of the six plaintiffs together. “During trial, the companies were forced to move for mistrial six times, ” they said in a prepared statement. “The companies have strong grounds for appeal and remain committed to the long-term defense of the allegations in these lawsuits.”

A spokesperson for DePuy reportedly told Consumer Reports that the company was immediately appealing the decision. “DePuy acted appropriately and responsibly in the design and testing of ULTAMET Metal-on-Metal, and the product is backed by a strong track record of clinical data showing reduced pain and restored mobility for patients suffering from chronic hip pain.”

“The jury verdict is not a determination by a regulatory body, governmental agency, or other entity with oversight of the ULTAMET Metal-on-Metal Articulation, and it is also not a new scientific study or technical assessment of the safety of ULTAMET Metal-on-Metal. The product continues to perform well for many patients.”

Insults

Lanier, however, said J&J’s chances of winning on appeal are, “next to none.” He pointed out that Judge Kinkeade made numerous rulings against the plaintiffs, too, which prevented them from submitting evidence that he said would have cast J&J’s general marketing practices in a bad light. He noted that J&J sought out Judge Kinkeade, an appointee of President George W. Bush and a conservative. He also noted the Dallas federal court “is hardly known for being plaintiff-friendly.”

He said whoever at J&J is deciding against settling the Pinnacle case “is an idiot, ” because the entire Pinnacle case could have been settled for $1.5 billion. “Now, J&J is looking at that amount from just two trials.”

The case is IN RE: DePuy Orthopaedics Inc., Pinnacle Hip Implant Products Liability Litigation, MDL 3:11-md-0244.