The Texas federal judge who has presided over the second bellwether trial reduced the $497.6 million jury verdict to $150 million. The case is in the multidistrict litigation (MDL) over allegedly defective Pinnacle hip prosthetics manufactured by Johnson & Johnson’s DePuy Orthopaedics Inc. unit. U.S. District Judge Ed Kinkeade reduced the verdict because of the cap on punitive damages under Texas law. As we previously reported, on March 17 a Dallas jury found in favor of all five Plaintiffs in the trial and returned a verdict that had included $360 million in punitive damages. Mark Lanier, the lead attorney for the Plaintiffs, said: “While we believe that the Texas law is unconstitutional, we are not surprised that the judge used it to reduce the judgment.”
The trial had involved the consolidated claims of Margaret Aoki, Jay Christopher, Donald Greer, Richard Klusmann and Robert Peterson, who all underwent hip arthroplasty, where a hip joint is replaced with a prosthetic. In their case, the prosthetics were DePuy Pinnacle metal-on-metal devices, which they alleged cause serious health problems including inflammation of surrounding tissues, bone erosion and metallosis, a toxic condition caused when the device’s components grind against each other and shed metal debris into the bloodstream.
The verdict reduction was on the same day Judge Kinkeade rejected J&J and DePuy’s bid to put all further bellwether trials in the MDL on hold while they appeal. The judge found that not only would the next trial – the third bellwether in the dispute over whether Pinnacle hip prosthetics were defective, set for early September – cover different issues because the Plaintiffs were from California rather than Texas or Montana, as in the first two trials, but that J&J had been repeatedly warned about some of the issues it’s now trying to raise in trial court motions and an appeal to the Fifth Circuit.
J&J and DePuy had agreed on the bellwether process the court is now following and can’t grind the MDL to a halt now just because it lost one of the trials, Judge Kinkeade said. The judge added:
Only after losing the second bellwether trial did defendants object to the process. There are more than 8,000 pending cases in this MDL; the court cannot grant a stay every time plaintiffs win a trial.
Judge Kinkeade noted that the companies had agreed in January 2013 not to raise a venue objection to any of the cases being tried in Texas’ Northern District, one of the issues J&J and DePuy are now raising after losing the second trial. J&J and DePuy had argued in a May 24 motion that they were prejudiced by crucial pieces of evidence introduced at the second bellwether trial.
The jury found in favor of J&J on all counts, rejecting Plaintiff Kathy Herlihy-Paoli’s claims of negligence, defective design, failure to warn and violations of the Montana Consumer Protection Act. The product at issue in the trial was the Ultamet metal-on-metal articulation. The MDL was consolidated in May 2011, when the U.S. Judicial Panel on Multidistrict Litigation centralized three actions and identified 54 potential tagalong actions. There are now more than 8,000 cases in the MDL, all involving Pinnacle devices that contain sockets with metal, ceramic or polyethylene lining, according to court documents.
When Judge Kinkeade entered final judgment, which included the verdict reduction, he said that stalling the claims would be unfair to everyone involved. The judge noted that the average Plaintiff in the case is 68 years old this year.
The patients are represented by Mark Lanier of The Lanier Law Firm, Larry Boyd, Wayne Fisher and Justin Presnal of Fisher Boyd Johnson & Huguenard LLP, Richard J. Arsenault of Neblett Beard & Arsenault, and Jayne Conroy of Simmons Hanly Conroy. The MDL is In re: DePuy Orthopaedics Inc. Pinnacle Hip Implant Products Liability Litigation, in the U.S. District Court for the Northern District of Texas.
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