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While the U.S. District judge presiding over all federal DePuy Pinnacle lawsuits has upheld most of a massive verdict recently returned against Johnson & Johnson and it’s subsidiary, damages were reduced to roughly $500 million in six cases that went to trial late last year over problems with the metal-on-metal hip replacement.
A federal jury awarded over $1 billion in damages during a DePuy Pinnacle hip bellwether trial in early December, including punitive damages designed to punish the manufacturer for their actions involving the design and sale of the controversial implant, which is the subject of nearly 10,000 similar product liability lawsuits pending nationwide.
Each of the hip replacement lawsuits pending before U.S. District Judge Ed Kinkeade involve nearly identical allegations, maintaining that the metal-on-metal implant is prone to loosen and fail as metallic debris is released into the body, resulting in severe pain and the need for revision surgery to remove the artificial hip.
The jury verdict included roughly $32 million in compensatory damages for six plaintiffs, as well as another $1.09 billion in punitive damages, after evidence presented at trial suggested that Johnson & Johnson and DePuy Orthopedics knew that Pinnacle hip implants may leach cobalt and chromium into the body, yet allowed the devices to continue to be implanted in hip patients nationwide.
Following post-trial motions, Judge Kinkeade issued final judgments in the cases on Tuesday, upholding the compensatory damage awards for pain, suffering, medical expenses and permanent injuries caused by the DePuy Pinnacle implants. However, the punitive damages were reduced in each case by about half, indicating that a prior U.S. Supreme Court decision suggests that constitutional considerations limit such damages to a single-digit multiplier to comport with due process, while still achieving the goals of deterrence and retribution.
Shortly after the judgments were entered, plaintiffs filed a Notice Of Appeal (PDF) to the Fifth Circuit, calling for the appellate court to reinstate the full punitive damages awarded by the jury, and also called for Johnson & Johnson and DePuy to be required to pay 10% annual interest until the award is paid.
“Plaintiffs hereby appeal the decision of the District Court to enter judgments in their cases awarding punitive damages for amounts less than what was found by the jury,” the notice states. “The District Court should have entered judgment for the full amount of punitive damages found by the jury in these cases.”
Johnson & Johnson has also suggested it plans to appeal the judgment, citing “legal errors” it believes occurred during the trial. In addition, it objected to the plaintiffs’ request for pre-judgment interest in a response (PDF) filed last week.
DePuy Pinnacle Hip Litigation
As part of the coordinated litigation proceedings before Judge Kinkeade, a series of bellwether trials have been scheduled to help gauge how juries may respond to certain evidence and testimony that is likely to be repeated throughout the litigation.
In addition to the recent $1 billion verdict, which involved a group of plaintiffs from California, an earlier bellwether trial involving a group of five plaintiffs from Texas resulted in a $500 million verdict in March, including $140 million in combined compensatory damages and another $360 million in punitives. However, that verdict was reduced to $151 million under Texas state laws, which has more stringent damage caps.
Another DePuy Pinnacle bellwether trial is expected to go to trial in September 2017, unless the manufacturer takes steps to settle the hip lawsuits before then. Johnson & Johnson previously agreed to pay more than $2.4 billion to settle DePuy ASR metal hip lawsuits, resolving about 8,000 cases brought on behalf of individuals who received this newer metal-on-metal hip design, which was recalled from the market in 2010. However, the manufacturer has refused to settle DePuy Pinnacle cases.
While Johnson & Johnson has maintained that it intends to defend the DePuy Pinnacle cases at trial and through appeals, the manufacturer may face substantial liability if future juries respond in the same way to the evidence and testimony presented during the first two bellwether trials.