In the last three DePuy Pinnacle artificial hip bellwether trials, three juries awarded the following amounts of money: $502,000,000.00, $1,041,311,648.17, and $247,000,000.00. That’s a total of $1.79 billion dollars. The juries awarded plaintiffs compensatory damages (or actual damages) and punitive damages (to “punish” the defendant companies). Remember that these juries settled on these huge amounts of money based on their findings in three separate trials that DePuy and Johnson & Johnson were liable for design and manufacturing defects, that the defendants failed to warn plaintiffs about the risks of the defective artificial hip, and that defendants acted recklessly, intentionally, and even maliciously in marketing and selling the flawed DePuy Pinnacle hip. These last findings permitted the juries to award punitive damages.

In the bellwether trial in March 2016, a jury awarded more than $500,000,000.00 to five plaintiffs. On December 1, 2016 a jury awarded more than one billion dollars to six plaintiffs and four spouses. And finally, just two weeks ago, a jury awarded six plaintiffs (and four spouses) $247,000,000.00 in compensatory and punitive damages. Compared to the total awards, the amounts awarded to the spouses of the hip victims were modest, and appear to have totaled around $6,700,000.00.

Let’s do a little math:

Seventeen plaintiffs participating in the three bellwether trials were injured by the the DePuy Pinnacle artificial hip. Backing out out $7,000,000.00 for payments made to spouses, the total awarded specifically to the seventeen plaintiffs is $1.72 billion dollars. This averages $101,176,470.50 per plaintiff in the three bellwether trials.

I should write this a second time: for each plaintiff whose DePuy Pinnacle hip failed, the juries awarded over one hundred million dollars.

Now consider that more than 9,000 cases remain unresolved in the DePuy Pinnacle multidistrict litigation in Dallas, Texas. If each plaintiff remaining in the MDL were to win one hundred million dollars at trial, DePuy Orthopaedics and parent company Johnson & Johnson would owe more than nine hundred billion dollars.

I did a quick search, and it appears as if Johnson & Johnson is currently worth around 390 billion dollars. Obviously, nine hundred billion dollars would quickly bankrupt J&J.

Should every remaining plaintiff in the DePuy Pinnacle MDL expect to be awarded one hundred million dollars? Of course not. (And in fact, the seventeen plaintiffs who were involved in the three bellwether cases will not ultimately recover $100,000,000.00, because the judge has already reduced the punitive damages awards in two of those cases, which you can read about here and here.) My point is simply this: it is well beyond time for DePuy and J&J to come to the table and negotiate a generous settlement for the remaining plaintiffs and their spouses. These past three bellwether trials could not have gone much worse for the defendant companies, and the more bellwether trials that follow, the worse it may get for DePuy and J&J, which means the more money it will take to settle the remaining 9,000 cases.

If you have been injured by a DePuy Pinnacle artificial hip, give me a call to discuss your options (919.830.5602).

1995: Study on Metal-on-Metal Hips Released

For all metal-on-metal artificial hips, we have to start with the central question: what did the manufacturer know, and when did the manufacturer know it? In 1995, Dr. Graham Isaac released a short paper discussing the problems with metal-on-metal (MoM) artificial hips. Dr. Isaac explained that the performance of MoM hip implants was “unpredictable,” that the hips may work well for some time “before suffering catastrophic breakdown . . . accompanied by a release of a large volume of debris.” This paper and Depuy’s other internal documents suggest that Depuy Orthopaedics should have known about the metal-on-metal risk factors in 1995. In fact, one doctor noted that Depuy needed “to be cautious of the legal/litigation issues and lawyers, etc…perception of metal debris and metal-ion release.” That’s not good.

October 13, 2000: Depuy Pinnacle Gets 510(k) Approval

Despite the study above, the FDA approved the Depuy Pinnacle metal-on-metal artificial hip for sale by means of the 510(k) process in 2000. The FDA did not require the Depuy Pinnacle to undergo clinical trials. You can read the FDA’s approval letter here. By representing to the FDA that the Depuy Pinnacle hip’s design was “substantially equivalent” to other hip products on the market, Depuy was able to avoid the important safety review required for premarket approval under FDA regulation, including vital clinical trials.

Depuy began selling the Pinnacle metal-on-metal hip shortly thereafter.

2000-2013: Depuy Pinnacle Hips Sold

Between October 2000 and August 2013, thousands of Depuy Pinnacle metal-on-metal artificial hips were implanted into unsuspecting patients. Depuy and Johnson & Johnson earned many millions of dollars on the sale of these Pinnacle hips. Many of these Pinnacle hips later failed, requiring painful and expensive revision surgeries. The lawsuits followed.

March 28, 2011: Depuy Pinnacle MDL Created

The Judicial Panel on Multidistrict Litigation (JPML) approved a multidistrict litigation site for injury claims involving the Depuy Pinnacle in 2011. The MDL is situated in the North District of Texas (3:11-md-02244) and presided over by federal judge Ed Kinkeade.

August 31, 2013: Depuy Stops Selling the Pinnacle

Depuy voluntarily stops manufacturing and selling the Depuy Pinnacle metal-on-metal artificial hip in August 2013. Importantly, however, Depuy never issued a recall. If you had hip replacement surgery in 2013 or before, you may possibly have the Depuy Pinnacle hip implanted.

October 23, 2014: First Depuy Pinnacle Bellwether Trial Ends with Defense Verdict

Kathleen Herlihy-Paoli sued Depuy Orthopaedics as part of the Depuy Pinnacle MDL in Texas for injuries she suffered after her Depuy Pinnacle metal-on-metal hip implant failed. Ms. Herlihy-Paoli said she felt severe pain shortly after the Depuy Pinnacle hip was implanted in 2009. She also alleged that she suffered from extremely high levels of cobalt and chromium in her blood stream. At trial, DePuy argued that Ms. Herlihy-Paoli’s injuries were not caused by product defects but instead were caused by improper surgical technique. The jury eventually found that the device was not defectively designed and that Depuy’s warnings about the risks of the device were not inadequate. So Depuy won round one.

March 17, 2016: The $502 Million Dollar Verdict in Second Bellwether

In the second Depuy Pinnacle bellwether trial, a Texas jury awarded five plaintiffs $502 million dollars, including a stunning $360 million in punitive damages, for the injuries the plaintiffs sustained after the Depuy Pinnacle failed. The jury based this award in part on findings that Depuy hid critical defects in the design of the Depuy Pinnacle artificial hip system and hid these risks from doctors and patients. The jury concluded that the Pinnacle hip sold by Depuy was defective and that Depuy knew about the flaws but did not warn patients and their doctors of the risks. The jury awarded $142,000,000.00 in actual damages and $360,000,000.00 in punitive damages. In all five cases the artificial hips failed, requiring revision surgeries and causing pain and suffering. In each case, the plaintiffs alleged that cobalt and chromium from the metal hip components were released into their bloodstreams, causing toxic metal levels in the blood.

December 1, 2016: The Day of the Billion Dollar Verdict

In the third bellwether case in the Depuy Pinnacle MDL, a Texas jury awarded six plaintiffs over one billion dollars for injuries they suffered following the failure of the Depuy Pinnacle artificial hip. Opening arguments began on October 3, 2016. Both sides argued their cases aggressively, and spent many days cross-examining the opponent’s expert witnesses. There were 21 expert witnesses who testified in this trial. After closing arguments, the jury “received” case on November 30, which means it was finally time for the jurors to sit in a conference room and decide whether the plaintiffs had proven their cases, and if so, how much money they were entitled to receive.

After just one day of deliberation, the jury delivered its staggering verdict. The jury award totaled $1,041,311,648.17, and included $28,311,648.17 total in personal injury (“compensatory”) damages for the six plaintiffs, and $4,000,000.00 in loss of consortium damages to the four spouses of four of the plaintiffs. Finally, the jury awarded $1,008,000,000.00 in punitive damages total for the plaintiffs, and $1,000,000.00 in punitive damages for four spouses of the plaintiffs.

The jury found that DePuy and J&J were negligent in designing the Pinnacle Ultamet artificial hip. The jury also found against the defendants on the plaintiffs’ strict liability claim (failure to warn), negligence (failure to warn), negligence (failure to recall), negligent misrepresentation, negligent misrepresentation to the plaintiffs’ physicians, intentional misrepresentation, intentional misrepresentation to the plaintiffs’ physicians, fraudulent concealment, and fraudulent concealment to the plaintiffs’ physicians.

January 3, 2017: Judge Reduces Billion Dollar Verdict by $500,000,000.00

The billion dollar award did not last long. Judge Kinkeade issued his post-trial court order reducing the amount of punitive damages awarded to the six families, writing that “constitutional considerations limit the amount a plaintiff may recover in punitive damages.” The relevant portion of the Order states:

“Although the jury awarded $84,000,000 in punitive damages from Defendant DePuy Orthopaedics, Inc. and $84,000,000 in punitive damages from Defendant Johnson & Johnson, constitutional considerations limit the amount a plaintiff may recover in punitive damages. See State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 425 (2003) (“[F]ew awards exceeding a single-digit ratio between punitive and compensatory damages, to a significant degree, will satisfy due process. . . . Single-digit multipliers are more likely to comport with due process, while still achieving the State’s goals of deterrence and retribution . . . .”). The Court has reduced the punitive damages accordingly.” See Depuy Pinnacle Order.

The U.S. Supreme Court has limited punitive damages in certain situations, but there is no explicit federal law requiring strict limits on punitive damages, and all reductions such as the current one intrude aggressively on the power of the jury to make its own findings and awards. In any evident, Judge Kinkeade held that the punitive damages award by the jury was “excessive.”

Fortunately, Judge Kinkeade upheld the jury’s conclusions that the Depuy Pinnacle hip implants were defectively designed and that Depuy and Johnson & Johnson failed to warn consumers adequately about the risks involved.

September 18, 2017

The fourth Depuy Pinnacle trial began on September 18, 2017. Unlike with the Depuy ASR cases, Depuy and Johnson & Johnson have made no attempt (yet) to reach a global settlement with the thousands of remaining cases. There is pressure on DePuy to settle the remaining Pinnacle cases, especially in light of the last two bellwether verdicts. Another big jury verdict will cost multiples of that amount for Depuy, as the eventual settlement would most likely increase.

As always, I will keep you posted on developments.

A “bellwether” is someone or something that leads others or shows what will happen in the future or is an indicator of trends. In the legal world a bellwether case is very important because it leads the way in how a large number of lawsuits may be litigated or settled.

Too Many Cases, Not Enough Resources

If there are many plaintiffs suing the same defendant for the same reason with similar facts there are different ways all these cases could be handled. They could,

• Go their own separate ways with their own trials,
• Become a class action in which the interests of all the plaintiffs are represented by one plaintiff, or a group or them, or
• Establish a multi-district litigation (MDL) which has advantages of the options above. Cases from all over the country are transferred to a designated court and grouped together. Instead of just one trial in a class action there could be multiple, independent trials with the first ones called bellwether cases.

MDL bellwether cases allow attorneys for the plaintiffs and defendants to work together on preliminary litigation issues and prepare for representative cases that have similarities to many other (untried) cases. Bellwether cases also lessen the chance of inconsistent rulings and verdicts across the country.

The vast majority of civil cases settle before a trial takes place. What should a case settle for? Bellwether trials help the parties understand what value the cases have that are part of the MDL.

• If juries reject the plaintiffs’ claims and find no negligence, they’re not worth much.
• If the plaintiffs are successful and receive verdicts with large money awards, they’re worth a lot.

With the bellwether cases under their belts attorneys and their clients remaining in MDL get a better idea of the challenges they face and have more realistic expectations for settling cases. In an MDL, case after case could go to trial until they all receive verdicts (which could take years or even decades) or they could settle.

Cook IVC MDL

Currently there is an MDL for about 650 plaintiffs from all over the country injured by Cook IVC filters in the federal court for the Southern District of Indiana. In July 2016, U.S. District Judge Richard Young issued an order selecting three bellwether cases for trial. He also identified the specific type of Cook IVC filter that caused the plaintiffs’ injuries,

• Brand v. Cook Medical, Inc. et al., Case No. 1:14-cv-6018 (Celect)
• Gage v. Cook Medical, Inc. et al., 1:14-cv-1875 (Günther Tulip)
• Hill v. Cook Medical, Inc., et al, 1:14-cv-6016 (Celect)

The first bellwether trial will involve Elizabeth Jane Hill, a woman from Florida who was implanted with a Cook Celect IVC filter. The bellwether trials are supposed to start in the spring of 2017.

With hundreds of cases involved and potentially hundreds of millions of dollars at stake, nothing is simple or easy, including selecting the first Cook IVC filter bellwether cases. Attorneys from both sides did what they normally do: argue with each other. Given the obligation to zealously defend their clients’ interests, it’s an occupational hazard.

Both sides want every advantage they can get and that includes which cases will be the bellwether cases because they literally set the example or set the tone for the cases that follow. Each side gave the judge seven cases they thought should be the bellwether cases because they represent the types of claims and legal arguments involved in the MDL.

The plaintiffs’ attorneys didn’t like the cases proposed by the defendants and the defendants didn’t like the cases proposed by the plaintiffs. There were disagreements about:

• The types of filters involved in the cases,
• The fact that in some cases filters broke apart, and
• How many cases should involve claims over filter removal.

In the end Judge Young did what judges do. He used his best judgment to come up with list of the first three bellwether cases which, if all goes well, will show that plaintiffs suffered serious injuries through no fault of their own and that they deserve substantial compensation for what they had to endure because of the defective Cook IVC filters.

As always, I will keep you posted.

Depuy Orthopaedics and its parent company Johnson & Johnson filed their “motion to stay” on May 24, 2016. They asked the court to delay all further trials in the Depuy Pinnacle MDL until an appellate court rules on their appellate issues. (It is very common for a company in any case to appeal a trial verdict when the jury awards significant damages to the plaintiffs.) Depuy claimed there were significant errors made at the trial. Depuy also argued that the decision in the appeal could have “far-reaching implications” on how future Pinnacle cases are tried. Defendants claimed the “grounds for appeal are strong” and that they “acted appropriately and responsibly in the design and testing” of the devices.

Judge Kinkeade, who presides over the Depuy Pinnacle MDL in Dallas, Texas, denied the motion to stay the trials. In his order Judge Kinkeade selected seven bellwether cases to be tried beginning September 6, 2016. You can read that Order here.

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A “stay” would have created a long delay in resolving the remaining cases that are ready for trial. A complex appeal in a federal circuit court can take over a year to conclude. Judge Kinkeade apparently did not see any reason to delay other cases that are ready for trial.

Defense: The Pinnacle Ain’t the ASR

Depuy Orthopaedics has so far refused to negotiate a global settlement arrangement with lawyers for injured plaintiffs. Depuy has argued that the Depuy Pinnacle is not defective and is different from the Depuy ASR hip, which was a metal-on-metal hip that resulted in two large settlement agreements. One defense seems to be: “the Pinnacle ain’t the ASR.” Depuy has argued that the Pinnacle is not flawed in the manner the ASR was flawed.

Plaintiffs disagree, and thousands with the Pinnacle implant have filed suit for many of the same injuries that the ASR inflicted on individuals. Plaintiffs have argued that if Depuy refuses to negotiate a global settlement of the Pinnacle cases, then the court should fast track all remaining cases, as there are more than 8,000 cases remaining to be resolved.

Punitive Damages Award Sends Message

It appears the $500 million dollar verdict will be reduced in part. Texas law places a $10 million dollar limit on punitive damages, so the $360,000,000.00 in punitive damages awarded by the jury will likely be severely reduced. Still, the large punitive damages award serves a value for plaintiffs as it sends a strong signal that the jury was sufficiently offended by the actions of Depuy that it awarded a huge amount of punitives, whether or not Texas law permitted such an award.

Depuy and Johnson & Johnson are accused of covering up defects which caused the hips to fail. The hip component manufacturers still face more than 8,000 lawsuits concerning the alleged failure of the Depuy Pinnacle artificial hips. Judge Kinkeade’s Order was a victory for injured people and a rejection of unnecessary delays in the Depuy Pinnacle MDL.