© 2016 The Texas Lawbook.
By Mark Curriden
(Dec. 2) – A federal jury in Dallas ruled Thursday that pharmaceutical and medical device maker Johnson & Johnson and one of its subsidiaries is guilty of “despicable and vile conduct” for knowingly and fraudulently selling Pinnacle metal-on-metal hip implants that they knew were seriously defective.
A jury of six women and three men ordered the New Jersey company and its DePuy Orthopaedics subsidiary to pay more than $1 billion in damages to six individuals – all from California – who suffered serious chronic and painful medical problems caused by the device.
Lawyers for J&J said Friday that they plan to officially challenge the verdict as soon as possible.
“As in [a jury ruling against the company last year], today’s verdict provides no guidance on the merits of the overall Pinnacle litigation because the court’s rulings precluded a fair presentation to the jury,” said John Beisner, a partner at Skadden Arps who represents J&J in the litigation.
“Now the appellate court will need to review errors repeated in two trials, and we will continue to urge that no further trials be conducted until we receive appellate court guidance,” Beisner said.
More than 40 witnesses testified during the 11-week trial. The jury deliberated for nearly eight hours before returning with the verdict awarding $32 million in actual damages and $1.009 billion in punitive damages.
The trial was the third in a series of bellwether cases being held by U.S. District Judge Ed Kinkeade. More than 8,900 cases against J&J and DePuy have been filed across the U.S. The lawsuits have been consolidated in what is known as multi-district litigation or MDL.
The first bellwether trial held in October 2014 resulted in the jury ruling for Johnson & Johnson.
Last March, a second jury ruled in favor of five Texans who sued the hip implant maker and were awarded more than $502 million in damages – an amount that Judge Kinkeade reduced to $113 million as a result of legal caps on damages under Texas law.
The last verdict is currently on appeal to the U.S. Court of Appeals for the Fifth Circuit.
Mark Lanier, who is the lead lawyer for the plaintiffs in the MDL litigation, said that he plans to ask the Fifth Circuit to consolidate Thursday’s verdict with the two pending cases.
In Thursday’s decision, the jury found that J&J and DePuy officials intentionally misrepresented the dangers of the product for the sake of monetary gain.
“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,” Lanier said. “This jury spoke loud and clear, and I hope J&J will finally listen.”
The Pinnacle implant, according to Lanier, was designed with a metal, rather than a safer ceramic or polyethylene, socket. The metal-on-metal design causes the socket to rub against the ball head, which can lead to corrosion and can cause bone and surrounding tissue to erode over time.
Each of the six plaintiffs in the trial had to undergo revision surgeries to replace the implants and repair the damage.
Officials for DePuy said Friday that the judge issued numerous rulings that undermined the ability to properly and fairly defend against the allegations, including the decision to try the cases of the six plaintiffs together.
“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,” Mindy Tinsley, a spokesperson for DePuy, said in a written statement.
The fourth bellwether trial is scheduled for September 2017.
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