BREAKING: 3rd J&J Hip Implant Bellwether Delivers $1B Verdict - Law360

BREAKING: 3rd J&J Hip Implant Bellwether Delivers $1B Verdict - Law360

by Jess Krochtengel

Law360, Dallas (December 1, 2016, 5:14 PM EST) -- A Texas federal jury on Thursday found Johnson & Johnson’s DePuy Orthopaedics Inc. unit liable for more than $1.04 billion in a six-plaintiff bellwether trial targeting metal-shedding artificial hips that are part of its Pinnacle line, dwarfing the $150 million verdict J&J is on the hook for after a previous bellwether.

After a two-month trial that closed Nov. 30, jurors deliberated for less than a day before finding J&J and DePuy had negligently designed the hip implant, failed to warn surgeons about dangerous conditions related to the implant and concealed the implant’s risks. The verdict includes between $4 million and $6 million per plaintiff in damages for physical injuries and pain and suffering, $1 million each to four spouses for loss of consortium and more than $504 million against each of DePuy and J&J in punitive damages, after the jury found the companies had acted with malice or fraud.

DePuy and J&J were each found liable for negligent design defect, negligent failure to warn, strict liability failure to warn, failure to recall, negligent misrepresentation, intentional misrepresentation and fraudulent concealment. J&J was also found liable for aiding and abetting DePuy in each of the seven causes of action. The jury found J&J did not conspire with DePuy on the design defect claim, but did find J&J liable for conspiracy on the other six claims.

Because the six plaintiffs are from California, they are not [would not have been] subject to the same punitive damages cap that slashed by more than two-thirds the $502 million verdictfrom the second bellwether trial, which involved Texas plaintiffs. J&J previously won the first bellwether trial, which involved one plaintiff from Montana.

Before the third bellwether got underway, J&J complained it was being hit with unfair pretrial rulings, and during the trial, J&J continued to raise objections to perceived advantages for the plaintiffs. The case involved six plaintiffs from California, who each had to undergo “revision surgeries” after being fitted with metal-on-metal artificial hip systems made by DePuy, known as the Pinnacle hip system’s Ultamet variety.

At the MDL’s heart are allegations that friction between the device’s metal socket and metal ball head rubs away billions of microscopic particles with every step, polluting the bloodstream and surrounding tissue with “wear debris” over time. The plaintiffs alleged J&J knew the device was riskier than others available but still pushed it aggressively, even paying kickbacks to amenable surgeons.

In closing arguments, plaintiffs' lawyer Mark Lanier of The Lanier Law Firm had asked the jury to impose a stiff enough penalty on Johnson & Johnson that the company would change its behavior with future medical devices. He had suggested a $500 million punitive award would hardly be felt by a company worth $72 billion.

J&J maintains it acted appropriately and responsibly in the development, testing and marketing of the Ultamet product. During its opening, the company questioned whether the patients might have had hypersensitive responses to the implants, and suggested the devices were wrongly positioned in their bodies because of doctor error, which it said would lead to the excessive wear.

In a measured closing argument, defense lawyer Steve Quattlebaum of Quattlebaum Grooms Tull & Burrow PLLC had walked jurors through the 96-page, 33-question jury charge, pointing out what he said were holes in the plaintiffs' case and a failure to present evidence supporting the plaintiffs' claims. 

From the outset, J&J had raised complaints about how the trial was conducted. It launched a mistrial motion immediately after the plaintiffs’ opening statement, arguing plaintiffs’ lawyer Mark Lanier had improperly referred to illegal bribes and kickbacks — the subject of a 2007 deferred-prosecution agreement. Days later, it sought a mistrial after the introduction of what it said were misleading ads that ran in orthopedic journals, and filed another mistrial motion aimed at the suggestion by plaintiffs its metal-on-metal implants could increase patients’ risk of cancer and other systemic injuries.

J&J also complained that it was on the losing end of improper pretrial rulings, saying MDL decisions had undermined the chances for a fair or meaningful result.

It argued Texas federal court was the improper jurisdiction for a trial involving California plaintiffs, said the consolidation of six plaintiffs into one trial prejudiced its ability to present its defense and argued it had wrongly been shut out of the process of selecting plaintiffs for the trial. The company also said the trial court unfairly allowed witnesses to testify remotelywhen no special circumstances demanded it, even making an ultimately unsuccessful request to the Fifth Circuit to stop the practice.

The next bellwether is set to begin in September 2017, with the parties preparing for 10 plaintiffs all from New York. J&J has objected to proceeding with any more trials in the MDL until the appeals from the second bellwether trial have been resolved, and argues the Texas federal court lacks jurisdiction over out-of-state residents.

The patients are represented by W. Mark Lanier of The Lanier Law Firm, Richard Arsenault of Neblett Beard & Arsenault, Jayne Conroy of Simmons Hanly Conroy LLC and Khaldoun Baghdadi of Walkup Melodia Kelly & Schoenberger, among others.

DePuy and Johnson & Johnson are represented by Steve Quattlebaum of Quattlebaum Grooms Tull & Burrow PLLC, John Anderson of Stoel Rives LLP, Dawn Estes of Estes Thorne & Carr, Michael Powell and Seth Roberts of Locke Lord LLP and Stephen J. Harburg, John H. Beisner, Jessica Davidson Miller and Geoffrey M. Wyatt of Skadden Arps Slate Meagher & Flom LLP.

The MDL is In re: DePuy Orthopaedics Inc. Pinnacle Hip Implant Products Liability Litigation, case number 3:11-md-02244, in the U.S. District Court for the Northern District of Texas.