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.