DePuy Whistleblower Dismissal Upheld

A three-judge panel of the United States Court of Appeals for the First Circuit has upheld the district court’s decision to dismiss a whistleblower action filed by two UK orthopedic surgeons (the “Relators”) regarding hip implants.

The litigation is more than a decade old. The whistleblower action was filed against DePuy Orthopaedics, Inc., DePuy, Inc., and Johnson & Johnson Services, Inc. (collectively “DePuy”). It involved DePuy’s metal-on-metal hip-replacement device. Prior to filing the whistleblower action, the Relators were involved in two multi-district litigation cases, one involved hip implants created by DePuy and the other involved Pinnacle hip implants. Protective orders involving the DePuy products and design information were issued in both cases.

The Pinnacle device was the device at issue in the whistleblower action filed by the orthopedic surgeons. DePuy was able to have the action dismissed by successfully arguing that, per court documents, the surgeons “were unable to point to a public source of information” regarding some of the information at issue. For OTW’s coverage of the dismissal, see “DePuy (J&J) Whistleblower Action Dismissed.”

In support of their appeal the Relators asserted, in part, that they never violated the protective orders in their second amended complaint. The Court disagreed, stating that “after a careful review of the record, it is evident that the district court had sufficient facts to adequately support its finding that Relators” utilized the subject information “in violation of the Protective Orders.”

The three-judge panel was not persuaded by the Relators’ other arguments and upheld the dismissal. In its opinion, it stated, “We accordingly find that the district court did not abuse its discretion in finding that Relators had, once again, violated the Protective Orders and in imposing the weighty sanction of dismissal with prejudice.”

While this case may finally have a resolution, the Pinnacle hip implant litigation has not. Many of the product liability cases were settled in 2019. However, some are still pending. For OTW’s coverage of the nearly $1 billion settlement in 2019, see “JNJ to Pay Almost $1 Billion to Settle Hip Lawsuits.”