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Following a series of massive verdicts in early “bellwether” trials for DePuy Pinnacle hip replacement lawsuits pending in the federal court system, Johnson & Johnson is urging the judge presiding over the litigation begin the wholesale remand of thousands of cases back to the U.S. District Courts where they originated for individual trials.
There are currently more than 9,000 product liability lawsuits pending in a federal multidistrict litigation (MDL) for problems caused by the metal-on-metal DePuy Pinnacle implant.
Given similar questions of fact and law, the cases have been centralized for discovery and coordinated pretrial proceedings before U.S. District Judge Ed Kinkeade in the Northern District of Texas, who has already presided over a number of early trial dates designed to help the parties gauge how juries may respond to certain evidence that is likely to be repeated throughout the litigation.
Each of the hip replacement lawsuits allege that the DePuy Pinnacle metal-on-metal implant was defectively designed and unreasonably dangerous, causing the release of metallic debris that may result in failure of the artificial hip system.
In December 2016, Johnson & Johnson and its DePuy Orthopaedics subsidiary were hit with a staggering $1 billion verdict in a bellwether trial involving six plaintiffs. While the damages were later reduced to about $500 million, the verdict comes after another jury award of $500 million for five plaintiffs in March 2016, which was later reduced to $151 million under Texas state damage caps.
While additional bellwether trials have been scheduled before Judge Kinkeade, Johnson & Johnson is pushing the Court to remand thousands of cases back to individual U.S. District Courts nationwide for individual trial dates, indicating that it has no intention of negotiating hip replacement settlements for individuals who have experienced problems with DePuy Pinnacle implants.
Flooding the federal court system with a need to schedule more than 9,000 individual trials could be daunting, as there are typically under 12,000 completed trials in all U.S. District Courts each year; including both civil and criminal trials.
Last month, the Plaintiffs’ Steering Committee (PSC) responded to the defendants’ suggestion of remand in a memorandum of law (PDF), which calls for a staggered remand. This would result in the selection of “trial ready” cases to be sent back to individual U.S. District Courts in manageable batches, utilizing multi-plaintiff trials to move through the cases more rapidly. They also suggested that Judge Kinkeade should continue to oversee those trials in various districts, since he is most familiar with issues in the litigation.
“As more than 9,000 plaintiffs—the average age of whom is estimated at least 68 years—continue to wait for resolution of their cases, the PSC respectfully suggests now is the time for this Honorable Court to proceed with staggered remands of certain cases to transferor courts located in New York and California,” the memorandum states. “A staggered remand is clearly within the authority of this Court, has been routinely and regularly utilized in other notable MDLs, and is appropriate given the totality of circumstances regarding this MDL. Furthermore, given this Court’s vast experience over the litigation to date, this Court should preside over the remanded cases in the transferor district.”
Attorneys for Johnson & Johnson and DePuy Orthopedics filed a surreply motion (PDF) in opposition to that suggestion on August 16, calling for all of the cases to be remanded at the same time, rejecting plaintiffs’ call for multi-plaintiff trials. Rather, Defendants suggest that a better way to lower the resulting caseload on the courts is to weed out “meritless” cases among those already filed.
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. 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.