Future of DePuy Pinnacle Implant Cases May Depend on Appellate Outcomes

Hip ImplantsJohnson & Johnson (and its shareholders) may have cause for concern after losing three cases in a row to plaintiffs who proved that they were injured by defective DePuy Pinnacle hip implants. DePuy Orthopaedics is a division of Johnson & Johnson. In the most recent case, a federal jury in Texas awarded $247 million to six injury victims.

About 9,000 lawsuits against Johnson & Johnson have been pending in a federal court in Dallas. The lawsuits were filed by patients who contended that their Pinnacle hip implants were defective and that Johnson & Johnson failed to warn them of known harms that could result from using the product.

Plaintiffs allege that DePuy “rushed the Pinnacle hips to market with little testing and misled doctors about the device’s safety profile, assuring them there was little risk of metal poisoning and tissue damage from the metal-on-metal product.” The jury in the most recent trial agreed that DePuy used deceptive business practices to market a defective product, rejecting Johnson & Johnson’s claims that the hip implants simply wore out.

Bellwether Trials

The cases were centralized in the federal district of Texas using a procedure known as multidistrict litigation. When lawsuits filed in federal courts around the country make similar claims, federal law allows the lawsuits to be transferred to the same judicial district. The transfer allows a judge to make rulings about discovery and procedure that will generally apply to all cases of a similar nature against the same defendant.

The judge handling the litigation will usually schedule a number of bellwether trials. The cases selected as bellwethers are meant to be representative of the lawsuits as a whole. As a practical matter, plaintiffs’ attorneys and defendants’ attorneys each try to have their “best” cases selected for bellwether trials.

Judges hope that the bellwether trials will give parties a sense of how juries will react to the claims and evidence advanced in the lawsuit. Bellwether trials may contribute to settlements of all the pending cases if parties understand whether plaintiffs or defendants are generally winning and the amount of damages that juries are awarding in the cases that plaintiffs win.

However, judges cannot force plaintiffs to have their cases heard in a district that is unrelated to either the plaintiff, the defendant, or the place where the harm occurred. A case can be transferred to a single judge who will oversee discovery, but that judge cannot preside over a trial unless the parties agree that their case should be a bellwether case.

Because of that rule, multidistrict litigation anticipates that after a few bellwether trials, remaining cases will be sent back to the district where they were filed. That doesn’t always happen because cases often settle after the outcomes of the bellwether trials are known, or cases are dismissed because the court determines that they have no merit.

The DePuy Bellwether Trials

Four cases have been taken to trial in the DePuy Orthopaedics, Inc., Pinnacle Hip Implant Products Liability Litigation. The first trial, involving a woman from Montana who alleged that the implant caused her to suffer from metal poisoning, was a victory for Johnson & Johnson.

The next jury awarded five patients from Texas $500 million in damages. The court reduced the award to $150 million.

In the third trial, the jury awarded $1 billion to six California patients. The court reduced that verdict to $543 million.

The last trial involved six New York residents. The $247 million verdict followed a trial that lasted more than 30 days.

Future DePuy Pinnacle Implant Litigation

Before the fourth batch of cases went to trial, the court announced that there would be no further bellwether trials. Accordingly, thousands of cases against Johnson & Johnson will now travel back to the districts where they were first filed.

If the point of bellwether trials is to encourage settlement of similar cases, why haven’t the remaining cases settled? The answer seems to be that Johnson & Johnson doesn’t want to admit defeat.

After its third consecutive loss, Johnson & Johnson’s lawyer said: “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.” The plaintiffs who received an award of $247 million probably don’t regard the verdict as “a disservice to everyone involved,” and the verdict certainly did resolve those six cases unless Johnson & Johnson manages to win an appeal. Still, the tough talk by Johnson & Johnson’s advocates suggests that the remaining cases probably won’t settle any time soon.

As is traditional for parties who lose big, Johnson & Johnson vowed to appeal. The lawyers have complained about unfair rulings by the trial judge, but overturning jury verdicts is always an uphill struggle.

It is nevertheless apparent that Johnson & Johnson will wait to see how its three trial losses are resolved on appeal before it considers settling the remaining cases. Johnson & Johnson may be pinning its hopes on an appellate win before it decides whether to cut its losses and put an end to the trend of huge verdicts for plaintiffs who (according to three juries’ views of the evidence) were harmed by the Pinnacle implants.

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