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Appeals Court Orders New Trial in DePuy Pinnacle Hip Bellwether Case, Overturning Verdict

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A federal appeals court has overturned a $151 million DePuy Pinnacle hip verdict, indicating that a new trial was needed, since the jury was allowed to hear evidence that was unnecessarily prejudicial against the medical device manufacturer’s parent company, Johnson & Johnson. 

The ruling was issued on Wednesday by the U.S. Fifth Circuit Court of Appeals, in New Orleans, vacating a jury’s March 2016 verdict in a “bellwether” trial involving five plaintiffs who said that the DePuy Pinnacle metal-on-metal hip replacement system was defectively designed, and prone to failure, resulting in the need for revision surgery, and shedding metal debris into the body.

There are currently more than 9,000 similar DePuy Pinnacle hip lawsuits pending in a federal multidistrict litigation (MDL), which have been centralized before U.S. District Judge Ed Kinkeade in the Northern District of Texas for coordinated discovery and a series of early trial dates to help gauge how juries may respond to certain evidence and testimony that is likely to be repeated throughout the cases.

The overturned verdict originally called for Johnson & Johnson and it’s DePuy Orthopedics subsidiary to pay $500 million, but Judge Kinkeade subsequently reduced that award to $151 million under Texas laws limiting non-economic damages. However, the appeals court ruled that Judge Kinkeade erred in letting the jury hear several pieces of information that the appeals court judges determined were not relevant to the DePuy Pinnacle hip cases, and that prejudiced the jury against Johnson & Johnson.

During the trial, the jury was told that Johnson & Johnson had agreed to pay $70 million to resolve claims that its European officials bribed doctors to sell medical devices and drugs. In addition, they were told that the company paid kickbacks to the Iraqi dictatorship of Saddam Hussein in order to be a supplier during the Oil-For-Food Program run by the United Nations.

Following the appeal, the case will be remanded back for a new trial. However, the manufacturers have not fared much better in several other early bellwether trials. In November 2017, another jury hit Johnson & Johnson with a $247 million verdict in a DePuy Pinnacle bellwether case involving a group of six plaintiffs, including $79 million in compensatory damages, as well as another $168 million in punitive damages designed to punish the company for reckless disregard for the safety of consumers.

Given Johnson & Johnson’s continued refusal to negotiation hip settlements for individuals who received a Pinnacle metal-on-metal implant, the parties are pushing to have large numbers of cases remanded back to U.S. District Courts nationwide for individual trial dates. However, with more than 9,000 claims pending, a large scale remand may flood the entire federal court system, where there are typically under 12,000 completed jury trials each year, including both civil and criminal trials.

Johnson & Johnson previously agreed to pay more than $2.4 billion to settle DePuy ASR metal hip lawsuits, which was a recalled hip system based on the design of the DePuy Pinnacle metal hip. While the company has maintained that it intends to defend the DePuy Pinnacle cases at trial and through appeals, Johnson & Johnson may face substantial liability if future juries respond in the same way to the evidence and testimony presented during previous bellwether trials.

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