© 2015 The Texas Lawbook.
By Mark Curriden
(March 17) – A federal jury in Dallas on Thursday ordered the former manufacturers of metal-on-metal hip implants to pay $502 million to five Texans who claim they suffered severe injuries from the defective devices they had implanted.
The jury heard 37 days of testimony from the plaintiffs, company officials and expert witnesses for both sides before finding that DePuy Orthopaedics and its parent company, Johnson & Johnson, were liable, negligent and responsible for the plaintiffs’ chronic and painful physical problems.
After more than five days of deliberations, the eight-women and one-man jury awarded the five plaintiffs $142 million in actual damages and $360 million in punitive damages.
“I have 502 million reasons to be happy,” Mark Lanier, one of the lead lawyers for the plaintiffs, said Thursday.
The devices had unreasonably high failure rates resulting in severe pain and inflammation, bone erosion, tissue loss and other problems, Lanier told jurors.
In a written statement, DePuy officials denied the allegations.
“We have no greater responsibility than to the patients who use our products, and our goal is to create medical innovations that help people live more active and comfortable lives,” said Mindy Tinsley, spokesperson for DePuy.
Tinsley said DePuy, which is based in Indiana, will appeal the verdict.
Lanier said his clients were in the courtroom and cried when the jury announced its verdict.
“Today’s verdict is the result of years of hard work by my clients and every member of their legal teams, and almost three months of trial before one of the hardest-working juries I’ve seen during my years in the courtroom,” Lanier said.
“Now that DePuy and Johnson & Johnson have been found liable, we’re looking forward to trying another set of plaintiffs’ cases, hopefully this fall,” he said.
Lanier said that there are 8,900 more cases pending against DePuy and Johnson & Johnson, which have been consolidated before U.S. District Judge Ed Kinkeade in Dallas in what is known as a multi-district litigation.
Judge Kinkeade ruled earlier this year that the claims and circumstances of these five plaintiffs were similar enough to be tried before one jury.
In October 2014, Judge Kinkeade tried a similar case, but the jury in that trial ruled in favor of DePuy and Johnson & Johnson.
“We lost the last trial because the doctor doing the implants testified that he messed up and so the jury blamed the doctor,” Lanier said. “The doctor did not mess up in this case and there was no doubt that the device was at fault.”
Assuming the verdict is upheld on appeal, the money will be divided among the plaintiffs according to the severity of their injuries. The plaintiffs include:
- Captain Robert Peterson, a 76-year-old career Navy Seal who lives in Spicewood, Texas;
- Margaret Aoki, a 66-year-old Austin theater enthusiast and the widow of a Green Beret;
- Jay Christopher, a 53-year-old Beaumont electrician;
- Donald Greer, 79-year-old resident of Boerne, Texas; and
- Richard Klusmann, a 68-year-old retired hospital executive living in Austin.
Lanier said the next batch of plaintiffs will likely have their day in court this fall. The hope is that the plaintiffs and defense will be able to structure a global settlement agreement after a handful of the cases are been tried by juries.
John Beisner, a lawyer for Johnson & Johnson and a partner at Skadden, Arps, Slate, Meagher & Flom, said Lanier “has a history of pushing the evidentiary envelope at trial to score substantial verdicts, only to have those trial court victories reversed on appeal.”
Beisner pointed to the Vioxx litigation where, he says, “all three of his trial victories were rejected by appellate courts.
“We believe this may be another such case, as we have substantial grounds for appeal that we hope the Fifth Circuit will carefully consider,” he said.
Other lawyers representing DePuy in the trial were Michael V. Powell and Seth Roberts, who are partners in the Dallas office of Locke Lord.
The lawyers for the plaintiffs were Lanier and Ernest Cannon, a solo practitioner in Stephenville, Texas.
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