A federal jury in Dallas has awarded $247 million to six New York residents for damages they have suffered from Pinnacle Acetabular Cup System hip implants manufactured by Johnson & Johnson and its DePuy Orthopaedics subsidiary.
After 14 hours of deliberation, the seven-woman, one-man jury ordered New Jersey-based Johnson & Johnson and its subsidiary, DePuy Orthopaedics, to pay $78 million in compensatory damages and more than $168 million in punitive damages.
The verdict marks the conclusion of the fourth “bellwether” trial in the multidistrict litigation held before U.S. District Judge Ed Kinkaede, who is overseeing the consolidation of more than 9,000 similar lawsuits nationwide.
“We thank this jury for sending a very strong message about the responsibility the defendants have to take care of their consumers,” Mark Lanier, the lead attorney for the plaintiffs, said in a statement. “Unfortunately, it took the defendants putting the plaintiffs through burdensome litigation before justice could be served. The companies should have done the right thing when these serious medical concerns became known many years ago.”
John Beisner, who represents J&J, said in a written statement that Thursday’s verdict is a “pyrrhic victory” for the plaintiffs.
In another written statement, DePuy spokesperson Stella Meirelles said the company will “immediately begin the appeal process and remain committed to the long-term defense of the allegations in these lawsuits.
“We have no greater responsibility than to the patients who use our products,” she said. “We acted appropriately and responsibly in the development of the ULTAMET Metal-on-Metal, and the device is backed by a strong record of clinical data showing reduced pain and restored mobility for patients suffering from chronic hip pain.”
DePuy stopped selling its metal-on-metal Pinnacle devices after the U.S. Food and Drug Administration buckled down on its regulation of artificial hip implants in 2013.
The plaintiffs alleged at trial that the devices had unreasonably high failure rates resulting in severe pain and inflammation, bone erosion, tissue loss and other problems. They claimed that DePuy officials knew about the dangers of the hip implants but failed to warn doctors or patients about them.
In an interview Thursday afternoon with The Texas Lawbook, Lanier said the evidence supporting the latter argument was the strongest piece of evidence at trial that allowed his clients to prevail.
Despite “hundreds of documents” presented in the nine-week trial that showed Johnson & Johnson executives acknowledged there was a problem with their Pinnacle hip implants, “they told their sales reps over and over to tell the doctors that they’ve fixed the metal-on-metal implants,” Lanier said. “You just can’t lie to the public through the doctors like that and get away with it.”
Lanier said the six New York plaintiffs were a “diverse” group, ranging in ages 52 to 88 who worked in professions ranging from a chauffeur driver to a retired schoolteacher to an ex-police officer to an endocrinologist. He said Thursday’s verdict was particularly vindicating for his 88-year-old client, the doctor in the group, because he was confident the other side was trying to delay trial so that “people would die before they got to trial.
“[Johnson & Johnson] was not able to put off this trial for another five years to they could see how my client does at age 93 testifying,” Lanier said.
Thursday’s verdict is the third win in a row for Lanier and the other lawyers representing the plaintiffs in the series of bellwether trials.
Last December, a jury awarded $1 billion to a group of six California hip implant patients. That amount has since been reduced to $543 million by Judge Kinkeade. Earlier in 2016, another jury awarded a different group of affected plaintiffs – five Texans – $502 million, which was later reduced to $113 million.
J&J prevailed in the first bellwether trial, which took place in the fall of 2014. The company has appealed the two other verdicts.
In a previous interview with The Texas Lawbook, Lanier said the plaintiffs lost the first bellwether trial because a doctor who worked on the implants testified that he messed them up.
“The doctor did not mess up in this case and there was no doubt that the device was at fault,” Lanier told the Lawbook in March 2016.
Lanier said Judge Kinkeade has indicated that he wants to begin implementing selective remands of groups in the 9,000-plus case litigation to their original jurisdictions.
“If we can get three trial teams in shape, and then each team can [work on] two cases each, then we will hopefully have six more cases tried next year,” Lanier said.
Thursday’s verdict is not just a conclusion to a nine-week trial, but, as Beisner puts it, a “pyrrhic victory” that resulted from a dramatic appellate decision that allowed the trial to proceed.
Right before trial began on Sept. 5, a three-judge panel in the U.S. Court of Appeals for the Fifth Circuit rejected J&J’s petition for mandamus that had requested to halt Judge Kinkeade from moving forward with the trial.
The decision was sharply divided, however. Two of the Fifth Circuit judges found that Judge Kinkeade had committed “grave error” in determining that his court had jurisdiction to hold the trial in the first place.
“This nine-week trial was a disservice to everyone involved because the verdict will do nothing to advance the ultimate resolution of this six-year-old litigation,” said Beisner, a partner in Skadden, Arps, Slate, Meagher & Flom’s Washington, D.C. office. “We will continue to seek further appellate guidance that will finally allow the fair, meaningful adjudication of these claims.”
Lanier acknowledged that getting the case to trial during the “Fifth Circuit shenanigans” was one huge challenge in itself.
Another challenge of the trial was that Judge Kinkeade barely allowed Lanier to get into “any of the juicy evidence” in front of the jury. Lanier said he wasn’t too bothered by that challenge. In fact, he said he “didn’t fight too hard” to get the evidence in, because he was confident he could still win.
“Even if you strip down the horrible evidence and truly putrid things the company has done – whether it was bribing doctors, bribing foreign officials, making racial comments… if you strip out all the evidence that shows just particularly egregious behavior, the jury will still punish the company to the tune of nine figures simply because the inherent conduct itself was so malicious and reckless,” Lanier said. “I’m thrilled.”