The makers of Roundup just lost another big case, this time involving a couple who used the weedkiller and were later diagnosed with non-Hodgkin lymphoma. This month, a jury in California awarded Alva and Alberta Pilliod more than two billion dollars. The jury found that Monsanto and Bayer acted negligently and failed to warn the plaintiffs of the dangers of using Roundup. The key active ingredient in Roundup, glyphosate, has been shown in studies to increase the risk of developing non-Hodgkin lymphoma (NHL). The jury then awarded Mr. Pilliod $18 million in “compensatory damages,” which is a money award for actual injuries suffered. The jury awarded Ms. Pilliod $37 million in compensatory damages, for a total of $55 million in compensatory damages. Finally, the jury awarded the Pilliods $1 billion each in punitive damages. The final jury award was $2,055,000,000. A truly astonishing number, and a major rebuke to the makers of Roundup.

The Pilliods testified that they used Roundup on their property for more than thirty years, from 1975 and 2011. They were diagnosed with NHL in 2011 and 2015.

Punitive damages play an important role in consumer protection. Punitives are awarded by a jury to punish or deter a bad-acting company, and similarly situated companies, from engaging in similarly awful conduct. Punitive damages are not common, and are usually awarded when a jury decides that the defendants had prior knowledge of a serious issue or problem and ignored this knowledge to the serious injury or detriment of other people.

The idea behind the deterrent effect of punitive damages goes something like this:

CEO of Company A: “Hey look, Company B is making billions of dollars selling that glyphosate-based weedkiller. We have to get in on that dangerous-chemical weed-killing market . . .” COO of Company A: “But wait a minute. Company B is being sued by thousands of people who say glyphosate caused their non-Hodgkin lymphoma. And just last week a jury awarded $2 billion in punitive damages to a couple who used Roundup and were later diagnosed with cancer.” CEO: “That’s not good. So selling this product could harm people’s lives, plus it could end up costing our company a huge amount of money, and we would look horrible in the media? Maybe we shouldn’t sell harmful chemicals to millions of people and tell them it’s a safe product, the way Company B did.”

Anyway, that is how it is supposed to work. Unfortunately, the allure of massive profits often overcomes the fear of punishment or even the motive to do the right thing.

Even worse, in many states, including my state of North Carolina, business-friendly legislatures have placed limits on the amount of punitive damages that must be paid. In North Carolina for example, no matter what amount a jury awards in punitive damages, the trial judge is required to reduce the punitives award to three times the amount of compensatory damages awarded (or a flat $250,000, whichever is greater).

If the Pilliod case had been tried in North Carolina, Mr. Pilliod’s punitive damages award would have been reduced by $946,000,000, and $889,000,000 would be stripped from Mrs. Pilliod’s award. The jury in California decided to send a loud message to Monsanto and Bayer that their corporate behavior was reprehensible, and to punish them by awarding two billion to two cancer-stricken plaintiffs; yet in “tort reform” states the legislatures insert their own, “better” judgment and announce, “we politicians, who did not sit through this trial and know nothing about the facts of this case, will decide how much punitive damages to award these people. In this case, we’ve decided to strip $1.835 billion from the award made by this jury to this cancer-stricken couple.”

Fortunately, the Pilliods live in California, without draconian tort reform laws. Still, Monsanto and Bayer have announced they will appeal the verdict, and the money award will likely be reduced eventually. Still, it was a big win for the Pilliods and for other victims of Roundup.

Currently there are more than 13,000 lawsuits pending against Monsanto and Bayer. Just yesterday, the federal judge handling the Roundup multidistrict litigation in California appointed Kenneth Feinberg to serve as Special Master to develop a plan to resolve the thousands of Roundup lawsuits against Monsanto and Bayer. You may remember that Feinberg oversaw the compensation fund for victims of the September 11th attack. The parties will meet shortly to discuss a potential framework for resolution of the Roundup cases.

Plaintiffs in these cases allege that the defendants not only sold a dangerous and unsafe product, but also manipulated research to suggest that glyphosate was safe for human use when the actual studies showed that it could cause cancer.

Monsanto and Bayer have now lost three straight jury trials over Roundup weedkiller. The next Roundup trial is scheduled to start in August in St. Louis County, Missouri.

If you used Roundup for an extended period and were later diagnosed with non-Hodgkin lymphoma, give me a call to discuss further: (919) 830-5602.

In 2009 Mary McGinnis was implanted with the Avaulta Solo Support System and Align Trans-Obturator Yrethral Support System, two pelvic mesh products manufactured and sold by C.R. Bard, Inc. and other defendants. Ms. McGinnis was implanted with these mesh products in an attempt to treat Ms. McGinnis’ stress urinary incontinence and to provide bladder support. Shortly after implantation of the mesh, Ms. McGinnis began having severe pains from nerve damage and pain during sex. She had to undergo several surgeries to attempt to correct the problems.

Ms. McGinnis and her husband filed suit in 2011, alleging that C.R. Bard knew the pelvic mesh was unsafe at the time the products were implanted in Ms. McGinnis, and that Bard failed to warn doctors about the dangers of the Avaulta and Align pelvic mesh. At trial lawyers for Bard argued that the Defendants met all industry standards and requirements for placing the Avaulta and Align mesh products on the markets.

Compensatory Damages

On April 12, 2018, after a four-week trial, the McGinnis family finally got some justice. The jury in New Jersey state court awarded $33 million in compensatory damages. These damages were broken down this way: Ms. McGinnis received $23 million for her specific injuries, medical costs, and pain and suffering, and her husband received $10 million for his derivative “loss of consortium” claim. (Let me add here that loss of consortium claims can be substantial in these kinds of cases, as one of the key mesh injuries is pain during sex, often leading to couples abandoning marital relations altogether. That kind of injury has real value for most couples.)

Punitive Damages

On April 13, 2018, the jury returned to court to consider whether to impose punitive damages on C.R. Bard. Plaintiffs’ lawyers argued that Bard acted “maliciously” and in “wanton and willful disregard” for the rights of Ms. McGinnis and her husband when Bard placed these flawed products in the market. Ms. McGinnis’ lawyers argued that corporate profits should never take precedence over the health of patients. Again, Bard lawyers countered that Bard complied with industry standards, that $33 million (in compensatory damages) was compensation enough, and that anyway the vast majority of of medical devices reach the market without clinical trials. Therefore, said Bard, the jury should not impose punitive damages.

The jury then awarded the Mary and Thomas McGinnis $35 million in punitive damages. The two-day verdict reached $68 million. Of course it can never repair Ms. McGinnis’ internal injuries, the pain she suffers during intercourse, or her incontinence, but the money may at least provide the best medical care going forward and some comfort as she grows older.

“Most Medical Devices Do Not Undergo Clinical Trials”

As noted above, this was one of the main arguments offered by attorneys for C.R. Bard and the other defendants. Because so many similar mesh products were already on the market, Defendants argued, clinical studies on these new products were not necessary.

This is crazy talk. Clinical testing is critically important for new medical devices. And this is a major problem in our medical device device industry. It goes like this: ‘because this new product, let’s say a metal-on-metal (MoM) artificial hip looks very similar to an older, metal on ceramic hip, we don’t need to test our MoM hip. Let’s just put it on the market now, without testing.’ (Over a decade later, ask the many thousands of people injured by MoM artificial hips whether clinical testing was unnecessary.) The same holds for pelvic mesh, IVC filters, artificial knees, and virtually all other medical devices.

This subject is too important to ignore. If a company wants to sell a product that is to be implanted in a human body, the company should do all that it can to ensure that the product is safe.

Fortunately, the Avaulta and Align mesh products implanted in Mary McGinnis have been taken off the market. But not before thousands of women were severely injured by these flawed pelvic mesh products. Thousands of cases have been filed and more trials are scheduled for 2018 and beyond. I’ll keep you posted.

Note: This post was drafted from review of several news reports on the McGinnis trial.

Victims of C.R. Bard’s IVC filters got some great news two weeks ago. An Arizona jury in the first bellwether trial awarded a woman $3.6 million for injuries she suffered after Bard’s “G2” IVC filter broke into pieces in her inferior vena cava vein, requiring open heart surgery to remove the broken pieces.

The plaintiff, Sherri Booker, was implanted with Bard G2 IVC filter to prevent blood clots from reaching the heart and lungs. The problem was, the G2 moved inside her inferior vena cava (it is not supposed to move), then it broke apart. In 2014, she had to undergo open heart surgery. The surgeon was not able to retrieve all the broken pieces.

The Jury’s Verdict

After a lengthy trial the jury found that Bard was liable for a negligent failure to warn patients about the risk factors in using the G2 IVC filter. The jury also determined that Bard was not liable to the plaintiff for strict product liability design defect, strict product liability failure to warn, or negligent design.

The jury awarded Ms. Booker $2 million in compensatory damages and $2 million in punitive damages. The court was utilizing comparative negligence law, which assigns proportional blame for the harm caused. The jury found that Bard as the device maker was 80% responsible for the injuries, and that a radiologist who failed to discover a broken piece of IVC filter in a 2009 X-ray. Under comparative negligence law, therefore, Bard became liable for 80% of the compensatory damages award, for a total of $3.6 million. Punitive damages are not affected by a comparative negligence analysis, so the $2 million punitives award will stand.

Even with the reduction, it was a good result for Ms. Booker, and the verdict was promising for the thousands of IVC filter victims still awaiting trial or resolution of their cases. A second bellwether trial is slated to begin in May.

A C.R. Bard representative said he was “disappointed” in the jury’s verdict, but still maintained that the G2 IVC filters are useful medical devices that have saved lives.

Some History on the Bard IVC Filters

Bard began selling the “Recovery” IVC filter in 2002. This after Bard received approval to sell the device under the “510(k) process.” The name comes from a section of federal regulations that allows companies to sell products that are closely related to products already on the market. The 510(k) pathway, as I’ve discussed often, can lead to disastrous results. Anyway, the Recovery started causing serious problems pretty quickly, the main two that the Recovery filter would move or “migrate” in the inferior vena cava vein, and that it had a tendency to break apart. Bard conducted a study on the Recovery, found higher incidents of injury and death, and finally pulled the Recovery IVC filter from the market around 2005.

That same year Bard introduced the G2 IVC filter. The G2 was engineered from the Recovery technology, and it turned out that the apple did not fall far from the tree. An internal Bard memorandum noted serious issues with safety and function of the G2. Despite these internal concerns, Bard continued to sell the G2 filter and later the G2 Express filter.

Finally in 2010 Bard stopped selling the G2 IVC filters. One report estimated that 160,000 G2 filters were implanted in patients. One of those was implanted in Plaintiff Sherri Booker.

On May 18, 2015 the MDL involving Bard IVC filters was approved for federal court in Arizona, and injured people from all over the country can place their individual lawsuits in this MDL (MDL 2641).

I have written often on the problems associated with IVC filters, which you can read about here. If you have any kind of IVC filter implanted and are having problems, give me a call to discuss your legal options (919.830.5602). Good luck.

The opioid epidemic in America is a national crisis. The U.S. Centers for Disease Control recently reported that more than 64,000 people died in 2016 from drug overdoses, with the great majority of those deaths caused by opioids. The numbers for 2017 only look worse.

Last month, I wrote about whether people affected by the opioid epidemic can sue the drug manufacturers and distributors, doctors, pharmacies, and other suppliers who contributed to the addiction that destroyed their lives. But what can victims recover in lawsuits involving dangerously addictive prescription drugs?

You know all too well what you have lost—your financial security, your health, or perhaps even a loved one’s life. Now, let’s review the legal terms we use to discuss these losses.

Defining Damages

Losses that a person seeks to recover in a lawsuit are known as damages. Damages are, in short, the financial reward that a successful litigant wins at the end of a case. Damages are generally divided into two broad categories: compensatory, or actual, damages and punitive damages.

Compensatory damages seek to restore what injured people or their survivors lost in terms of money. These damages are awarded to compensate someone for an injury. They are calculated by considering what a person lost because of someone else’s wrongdoing. Typical compensatory damages include lost income and medical expenses.

Not all compensatory damages are measurable, however. Economic damages—like hospital bills—have an exact, provable dollar amount. Noneconomic damages attempt to put a dollar value on pain and suffering or on the loss of a loved one’s companionship. They’re harder to measure and prove but often are worth more than economic damages.

Punitive damages, on the other hand, aren’t about paying back what a victim has lost—they’re about punishing the responsible party for doing something wrong and discouraging others from behaving in the same way. Punitive damages tend to be significantly greater than compensatory damages, but they aren’t available in every case.

As an example, remember the case against McDonald’s when a woman was scalded by excessively hot coffee? The jury in her case decided that she should receive $160,000 in compensatory damages, including her medical expenses, and another $2.7 million for punitive damages to prevent McDonald’s and others from serving dangerously hot beverages.

The McDonald’s case points out another critical reality about damages: just because a jury awards you damages doesn’t mean that the judge will (or can, in some cases) impose that full amount. The plaintiff in that case was ultimately awarded only $640,000 by the court and ended up settling for even less to avoid an appeal.

Damages in an Opioid Addiction Case

What do these definitions and terms mean for you? For an opioid addiction case, the actual damages suffered by addicts or their loved ones could include:

• lost income from missing work, losing a job, or losing the ability to work due to disability;
• medical costs, whether from a medical emergency (such as an overdose) or from long-term health problems caused by opioid abuse;
• drug treatment costs to overcome an addiction; and
• pain and suffering related to opiate addiction and the damage it does to relationships and lives.

Bear in mind that you will have to justify any damages you seek and explain how they are related to the addiction to opioids. This means both documenting any financial losses and connecting the responsible party’s actions—whether that’s the manufacturer who failed to properly warn about a drug’s addictive qualities or the doctor who prescribed you too many pills and enabled your addiction—to the damages you seek.

What Should You Do Now?

If you or a loved one has become addicted to opiates after receiving a prescription, there are a few things you should do today.

First, if you or your loved one is still actively addicted, get help. Nothing is likely to get better until the addiction is under control—and no amount of money will fix that.

Second, start to make notes about the losses you’ve suffered because of opiate addiction. Keep track of these and add to them as you think of additional types of damages or as more damages occur. It’s better to err on the side of including too much information or reaching too far than it is to leave something out and forget about it. While you’re making your list, consider what you would need to document those losses: collect paystubs, hospital bills, and treatment center receipts in one place.

Third, consider contacting a lawyer. This isn’t the type of case that people can handle on their own. Product liability and medical malpractice cases are complex and challenging, and your opponents have a host of lawyers to defend them.

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).

Just to recap, Androgel is a roll-on testosterone product. Jesse Mitchell began taking Androgel in 2007 after doctors ran blood tests and found that Mitchell’s testosterone levels were quite low. In 2012, at the age of 49, Jesse Mitchell had a massive heart attack. From what I’ve read, the heart attack almost killed him.

Mitchell and his wife sued AbbVie in 2014, claiming the company marketed and sold Androgel without properly warning men about the increased risk for heart attacks. During the trial an expert for the Mitchells testified that in his opinion there was a connection between Mitchell’s 2012 heart attack and his extended use of Androgel.

AbbVie’s defense was that the FDA did not see a serious problem with Androgel and did not require further testing, so the drug maker should not be to blame. In addition, the defense argued that Mitchell’s team simply did not establish “legal causation” between Mitchell’s use of Androgel and his heart attack. Among other things, AbbVie noted that Mitchell was obese, suffered from high blood pressure and bad cholesterol levels, and was a smoker. If this health description is accurate, these “bad facts” can derail an otherwise strong plaintiffs’ case.

The Verdict

The jury did not accept the argument that plaintiffs had proven the connection between Jesse Mitchell’s use of testosterone and his heart attack. Thus, the drug maker “won” on the claims of negligence. After the verdict an AbbVie spokesperson stated that the “jury found that Androgel did not cause any damage.” Let me stop here and note that this is not what the jury found. Finding, for example, that someone is “not guilty” is not the same thing as finding them “innocent.” Similarly, in a civil case against AbbVie, the verdict can be read only as indicating that the plaintiffs did not meet their burden of proof of establishing causation between the use of Androgel and Mitchell’s heart attack. It does not mean that the jury believed Androgel caused no damage. In any event, many observers of the trial believe that Mitchell’s poor health played a large part in preventing the jury from finding the connection between use of testosterone and the heart attack. It’s quite possible that a plaintiff with fewer health issues would have been able to establish the legal causation for the heart attack. We will certainly see in future bellwether trials.

Nevertheless, the jury did find that AbbVie was liable for fraudulent misrepresentation. Mitchell argued in this separate claim that AbbVie intentionally targeted middle-aged men with misleading marketing that claimed AndroGel could successfully treat a condition called “Low T” or low testosterone. Many medical experts agree that the symptoms of Low T are simply normal signs of the male aging process. It is undisputed that a healthy nineteen year old man will produce more testosterone than a healthy fifty year old man. Lower testosterone levels among middle-aged men–most doctors will say–do not require testosterone replacement therapy (TRT) with products like Androgel. Jesse Mitchell further argued that the FDA had never approved AndroGel for treatment of Low T.

The jury found that AbbVie had fraudulently misrepresented the use of the drug Androgel, then awarded the plaintiffs $150,000,000.00 in punitive damages. That is a really big number. Particularly coming as it does after the jury found that plaintiffs had not proven the connection between Androgel and the heart attack. Clearly, the jury did not like AbbVie’s aggressive marketing of Androgel for off-label uses.

The glaring problem with this verdict is that the punitive damages were awarded without any award of compensatory damages. In most states, there must be some compensatory damage award to permit an additional award of punitive damages. It goes like this: “we (the jury) find that you hurt the plaintiff–at least a little–and we also find that you should be punished for your really bad acts.” Sometimes when a jury decides that the defendant was a bad actor but they cannot agree on actual damages to the plaintiff, the jury will award nominal compensatory damages, such as a single dollar, to pave the way for a much larger punitive damages award. Even a damages award of $1.00 can shield a large punitive damages award post-trial attack. A punitive damages award alone, however, often will not stand.

So the chance that this punitive damages award is upheld in post-trial motions or on appeal is not great. It may well be that Jesse Mitchell and his family walk away with nothing.

Testosterone Multidistrict Litigation

The lawsuits against testosterone drug companies have grown in the past few years. Currently more than 6,000 men and families have filed suit. On June 6, 2014, the Judicial Panel on Multidistrict Litigation (JPML) created a multidistrict litigation (MDL) site to consolidate cases against testosterone manufacturers. The MDL is situated in the U.S. District Court for the Northern District of Illinois, with Judge Matthew Kennelly presiding. The MDL has been expanded to include suits against AbbVie, Inc. (Androgel), Eli Lilly & Co. (Axiron), and Endo Pharmaceuticals, Inc. (Fortesta, Delatestryl).

What is Testosterone?

Testosterone is a naturally occurring hormone which is important to the development of masculine characteristics and male growth. It is mainly produced in the testicles. Testosterone production increases during male puberty, and the hormone works to deepen the male voice and increase muscle mass; it also functions to increase facial and body hair, and to spark the sex drive. It’s the thing that helps the boy become the “man.” Testosterone can also be produced in laboratories. FDA-approved testosterone replacement therapy (TRT) products include a gel applied to the skin like Androgel, an injection, a patch (also applied to the skin), and another method of delivering testosterone through application to the upper gum or inner cheek. The FDA has approved these products for men who “who lack or have low testosterone levels in conjunction with an associated medical condition.” The problem is, several studies have shown an increased risk in heart attacks in men who use testosterone products.

On March 3, 2015, the FDA required testosterone label revisions to warn of the “possible increased risk of heart attacks and strokes associated with testosterone use.”

If you have been using prescription testosterone and have had heart issues or other health problems, I would advise that you see your doctor promptly, and if you think you may have a civil case against the drug maker, give me a call ((919) 830-5602) and we will figure it out.

The information in this post was gathered from the FDA and other media and news sources.

Now it’s the plaintiffs’ turn. The five victims of the Depuy Pinnacle artificial hip have answered the appeal of Depuy Orthopaedics and Johnson & Johnson in the Fifth Circuit Court of Appeals. And as they did at trial, the plaintiffs have come out fighting.

Recap of Depuy’s Appeal

A few weeks ago I wrote about the appeal brought by Depuy and Johnson & Johnson after a Texas jury awarded $502 million dollars to five plaintiffs. You can read about the Defendants’ appeal here. But to recap, Depuy and J&J argue that they were unfairly prejudiced by the plaintiffs’ team aggressive tactics at trial. They argue that Defendants are entitled to a new trial because the plaintiffs’ team had “a strategy” to “inflame the jury through highly prejudicial evidence and wholly inappropriate argument.”

A focus of Depuy’s appeal is that the companies were deeply prejudiced in the eyes of the jury based on “highly inflammatory, irrelevant, and prejudicial evidence” presented by the plaintiffs. Depuy contends that plaintiffs’ reference to payments made by Depuy to “henchmen of Saddam Hussein” was unfairly prejudicial (and thus violated Rule of Evidence 403). Turns out affiliates of Defendants had made improper payments to the Iraqi government. Judge Kinkeade, who presides over the Depuy Pinnacle litigation, allowed the improper payment evidence because Depuy made “character” an issue in the trial by repeatedly characterizing itself as a wholesome company with small town values.

Plaintiffs’ Appeal Brief

On Friday (March 31, 2017), the plaintiffs’ team filed its legal brief in response to Depuy’s appeal. It is a spirited document, and sets out the long (unhappy) history of the Depuy Pinnacle metal-on-metal hip and the injuries it has caused. The plaintiffs refute every issue Depuy raises in its appeal. Further, the plaintiffs asks the Fifth Circuit to restore the $360,000,000.00 in punitive damages awarded by the jury. I wrote about that jury verdict here and Judge Kinkeade’s reduction of the punitive damages award here.

Ultamet Metal Liner

The focus in the Depuy Pinnacle litigation has been on the company’s (aggressive) marketing and sale of the Ultamet metal insert liner in the Pinnacle artificial hip system. Plaintiffs have argued that this metal liner has created the conditions for the metal-on-metal grinding that has caused so many injuries. The plaintiffs do not argue that the polyethylene or plastic liners have negligently caused injury. Rather, it is the metal insert liner that has caused the thousands of premature artificial hip failures and the thousands of lawsuits against Depuy and Johnson & Johnson. The plaintiffs’ brief sets out this history of Depuy’s pushing this metal-on-metal hip system onto the market, despite evidence that the metal-on-metal hips caused too many problems.

Reference to Saddam Hussein

The plaintiffs also argue aggressively that their use of the term “henchmen of Saddam Hussein” was not unfairly prejudicial to Depuy. First, despite Depuy’s argument that plaintiffs used the term repeatedly, the plaintiffs point out in their response brief that the phrase was used just once in a nine-week trial. Further, the reference to unlawful payments to Iraq was presented as character evidence against the company, evidence the judge allowed because Depuy characterized itself as a “virtuous” company whose “sole goal” was to”produce products that help people get better.” Plaintiffs’ Brief. As it turns out, corporate affiliates of J&J had been sanctioned for making unlawful payments to the Iraqi government when Saddam Hussein was alive and well and the leader of Iraq. Judge Kinkeade noted at trial that Depuy had opened the door for the jury to hear this character evidence against Depuy when the defense team introduced evidence of Depuy’s wholesome reputation. Finally, the plaintiffs on appeal argue that the one reference to “henchmen” could not have been “unfairly prejudicial” because Judge Kinkeade gave the proper jury instruction that required the jury to consider only admitted evidence and explaining that a lawyer’s comments are not evidence.

Plaintiffs Ask Appeals Court to Restore $360 Million in Punitive Damages

The jury in this case originally awarded the five plaintiffs $360,000,000.00 in punitive damages (over and above actual, compensatory damages). Punitive damages are money damages, separate from compensatory damages, which are awarded by a jury and which are intended to punish or deter a bad-acting defendant and others from engaging in similar conduct. After the trial, Judge Kinkeade reduced the $360,000,000.00 punitive damages award to $9,646,256.00. Judge Kinkeade wrote that he was bound by a Texas statute which puts a “cap” on the amount of punitive damages a jury can award. In Texas, the limit on the amount of punitive damages that can be awarded “may not exceed an amount of two times the amount of economic damages; plus an amount equal to any noneconomic damages found by the jury, not to exceed $750,000; or $200,000, whichever is greater.” So the statute benchmarks punitive damages on the amount of other money damages awarded to the injured person.

The plaintiffs now ask the Fifth Circuit Court of Appeals to reverse this reduction in punitive damages and to find that the Texas statute capping punitive damages is unconstitutional. The plaintiffs make a compelling argument, because the statutory cap potentially harms certain injured plaintiffs more than others. Because the Texas statute calculates punitive damages based the individual plaintiff’s actual damages, wealthy or young plaintiffs would ultimately recover more punitive damages than those plaintiffs who do not earn a lot of money or who received fewer compensatory damages for other reasons, such as old age.

In their brief, plaintiffs argue: “A plaintiff with a large income who is injured or killed by another’s wrongdoing will likely have far more “economic damages” than a plaintiff with a modest income. Further, retirees, persons with disabilities, or spouses not working outside the home will likewise have minimal “economic damages” under Texas law.” Plaintiffs’ Brief. What this means is that in Texas punitive damages will be awarded differently if the injured person is unemployed, retired, or disabled; and that the plaintiff who is young or who earns a lot of money may end up with more punitive damages than the low earning person, even though the jury intended to punish the defendants equally for the companies’ very bad behavior. This does not seem fair. The statute could well be ruled unconstitutional.

The Fifth Circuit will take several months to decide this appeal. I will keep you posted, as always. And if you have a Depuy Pinnacle hip with a metal liner that is giving you problems, give me a call to discuss further.

Imagine going to sleep the night after making the decision to strip five hundred million dollars from six families. I imagine it would be unsettling. On Tuesday, Judge Ed Kinkeade, a federal judge in Texas overseeing the Depuy Pinnacle MDL, made the decision to cut $500,000,000.00 from a jury award presented to six families after a grueling ten-week trial last fall. You can read about the trial and the jury’s verdict here. In that post I wrote that the jury’s verdict was “staggering,” and it was. It may be more staggering that a judge, less than a month later, would wipe out half a billion dollars of the jury’s award.

“Single-Digit Multipliers”

On January 3, 2017, 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.

I have to say this is a powerfully thin explanation for stripping half a billion dollars from a jury award: “single-digit multipliers”? Really? The U.S. Supreme Court has limited punitive damages in the past, but there is no overarching federal law limiting 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. Further, as I discuss below, the controlling law in this case came from California, which does not have a punitive damages “cap.” In any evident, Judge Kinkeade held that the punitive damages award by the jury was “excessive.” Media reports calculate that the judge reduced the punitive damages award to nine-times the plaintiffs’ actual or compensatory damages.

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.

The Third Depuy Pinnacle Bellwether Trial

The first Pinnacle bellwether trial ended in a defense verdict, which means the plaintiffs lost and received no award. The second bellwether trial ended with a $502 million dollar verdict for five plaintiffs. It seemed unlikely that the third bellwether trial could yield a result similar to the second bellwether trial verdict. Turns out, the third bellwether trial was the biggest one of all.

Each of the plaintiffs in this case lived in California and received the Depuy Pinnacle artificial hip in surgeries in California. Because of this California citizenship, the laws of the state of California governed the case, even though the case was being tried in federal court in Texas. In each case that reaches trial, the substantive law of the state where the plaintiff resides controls. This was important (I thought!) because California, unlike many states (including Texas and North Carolina), does not have a cap on punitive damages awarded by juries.

The Jury’s Punitive Damages Award

The jury awarded $1,008,000,000.00 in punitive damages total for the plaintiffs, and $1,000,000.00 for the four spouses of the plaintiffs. The odd thing about Judge Kinkeade’s court order is that California has no statutory cap on punitive damages. In the second bellwether trial, Judge Kinkeade, utilizing Texas law, reduced the total jury award by $350 million, which you can read about here. But the judge should not have been able to disturb this latest award. I believed that the one billion dollar punitive damages award in this case should stand. Either I got it wrong, or Judge Kinkeade did. Of course we will see on appeal.

Were You Implanted with the Depuy Pinnacle Hip?

The Depuy Pinnacle Hip was first sold in 2000. Soon thereafter, complaints arose that the metal components of the Pinnacle hip would grind together and release metal particles into the body, often leading to extremely high blood metal levels. Depuy stopped manufacturing and selling the device in 2013. But it can take years for serious trouble to occur with a failed Pinnacle hip, which means many people are likely still out there with failing devices that don’t yet know the device is failing.

Quick example: let’s say you have the Pinnacle hip implanted in 2012, before it stopped being marketed and sold. You feel little pain in the first few years, but in 2016 you begin to feel a new discomfort. The pain gets worse over time. Then after a routine blood test, your doctor tells you that your metals levels are 17 parts per billion, which is high and not healthy. Your doctor recommends revision surgery in 2017. In that case, you should qualify for participation in the Depuy Pinnacle MDL.

The Depuy Pinnacle hip bypassed the normal premarket testing for a new medical device through the 510(k) process. This process allows a manufacturer to notify the Food and Drug Administration under section 510(k) of the Medical Device Amendments Act of 1976 of its intent to market a device (like an artificial hip) and to explain the medical device’s “equivalence” to a device already approved and marketed. The FDA may then approve the new device for sale in the United States, which it did for the Depuy ASR and Pinnacle, and which I believe is a significant reason for all the injuries and suffering related to failed medical devices.

The Takeaway

Punitive damages awards play a vital role in consumer protection. If companies like Johnson & Johnson do not fear large punitive damages awards, or even the freedom and power of juries, they will be less likely to take adequate precautions to protect the public. In my view, the jury’s punitive damages award should stand.

In March 2016 five people injured by the Depuy Pinnacle metal-on-metal artificial hip scored a huge courtroom victory. In that case a Texas jury awarded five plaintiffs $502,043,908.00 for injuries suffered by the failure of the Depuy Pinnacle hip. That figure was divided in different ways to the five injured people. Of that amount, $360,000,000.00 was awarded by the jury for punitive damages. The jury concluded that the Pinnacle hip sold by Depuy was defective and that Depuy knew about the flaws but did not adequately warn patients and their doctors of the risks. Like I said, this was a huge win. Unfortunately, the punitive damages award did not last long.

Judge Forced to Reduce Punitive Damages Award

Punitive damages are money damages, separate from compensatory damages, which are awarded by a jury and which are intended to punish or deter a bad-acting defendant and others from engaging in similar conduct. Judge Kinkeade, who is the federal judge presiding over the Depuy Pinnacle multi-district litigation (MDL), stated that he was bound by a Texas statute which puts a limit or “cap” on the amount of punitive damages a jury can award. Thus, Judge Kinkeade was required by law to reduce the punitive damages award, which a jury of twelve individuals, after a 42 day trial, thought was appropriate.

Thank You, Tort Reform! more

This Texas statute, like many across the country, was enacted in the great tort reform push of the last few decades. Legislators, often pressed by the insurance and big business lobbies, wrote statutes that put caps on the amount of punitive damages that a court could award, no matter what the jury thought was proper and necessary. In Texas, the limit on the amount of punitive damages that can be awarded “may not exceed an amount of two times the amount of economic damages; plus an amount equal to any noneconomic damages found by the jury, not to exceed $750,000; or $200,000, whichever is greater.” So the statute benchmarks punitive damages on the amount of other money damages awarded by the to the injured person. Never mind the fact that the intent of punitive damages is not to compensate the injured person but to send a loud message to the bad acting defendant. Legislatures have essentially said to juries: “we’ll let you know how loud your message can be to a defendant who injures one of our citizens.”

In North Carolina, where I live, there is a similar cap on punitive damage awards. N.C. Gen. Stat. § 1D-25(b) states that punitive damages “shall not exceed three times the amount of compensatory damages or two hundred fifty thousand dollars ($250,000.00), whichever is greater.” I can tell you that this statute has had a chilling effect on injury cases in North Carolina.

So What’s Next in Texas?

Judge Kinkeade reduced the $360,000,000.00 punitive damages award to $9,646,256.00. The five injured persons now have a verdict, after the operation of the Texas statute, of $151,646,256.00, down from the original jury verdict of $502,043,908.00. As astonishing as the original jury verdict was when it was announced in March, this reduction is almost equally stunning. Admittedly this jury verdict still represents a very large award and a big success for the plaintiffs. But the attack on the jury’s verdict is not over. Despite winning a $350,000,000.00 reduction in the jury award, Depuy and Johnson & Johnson immediately filed an appeal in the case, arguing that mistakes were made at the trial level and that the entire award should be voided and a new trial granted. Appeals like this one will take many months to resolve.

Thousands of Depuy Pinnacle Cases Remain

Depuy stopped selling the Pinnacle in 2013. Remember that—unlike the Depuy ASR hip—the Depuy Pinnacle was never officially recalled by Depuy Orthopaedics. Depuy still takes the position that the Pinnacle is different and safer than the ASR hip components. But this latest jury verdict makes it harder for J&J to advance that narrative.

The Depuy Pinnacle system was allegedly designed to provide better range of motion for a more active group of patients undergoing hip replacement surgery. One of the major complaints from injured patients is that the metal components grind and release metal particles into the body and blood of the patient. Like the Depuy ASR hip, the Depuy Pinnacle hip bypassed the normal pre-market testing for a new medical product through a process known as “510(k).”

The next “bellwether” Depuy Pinnacle case is scheduled to go to trial in September 2016.

The Takeaway

Punitive damages awards play a vital role in consumer protection. If companies do not fear large punitive damages awards, or even the freedom and power of juries, they will be less likely to take adequate precautions to protect the public. And as we’ve seen again and again, companies often rush products to market which they believe will make them great profits. The 510(k) process is one of these shortcuts that have caused unnecessary injuries from many flawed consumer products. Tort reform advocates speak of the protections of business and the money these statutes will save companies and insurance companies. But these legislative limitations come at a cost, and in my view will lead to more careless behavior from profit-first corporations.

In re: DePuy Orthopaedics Inc. Pinnacle Hip Implant Products Liability Litigation, 11-md-02244, U.S. District Court, Northern District of Texas (Dallas).

A lawsuit can be a minefield. For one, it can go on for years. And in that time opposing counsel can (and will) challenge a person’s lawsuit in large and small ways. By large I mean bringing “dispositive motions,” which are motions that “dispose” of a case, like a motion to dismiss and a motion for summary judgment. These motions are defensive attempts to kick a lawsuit out of court before it reaches a jury. By small I mean opposing counsel may refuse to produce certain documents or information in the “discovery” process, or may simply use motions or other tools to slow down and delay the plaintiff’s opportunity to have her case reach a jury.

But the fight is not over when the jury reaches a verdict in a product liability case. If a plaintiff wins her lawsuit, the defense will typically file “post-trial motions,” and after those motions are heard will likely appeal to a higher court. Merely getting a good jury verdict is by no means the end of the story.

Two weeks ago, a federal judge in Georgia stepped in after a jury verdict and stripped almost nine million dollars of punitive damages from the amount of money the jury awarded to the injured plaintiff.

But I need to back up.

In Re: Wright Medical Technology Inc. Conserve Hip Implant Products Liability Litigation (MDL No. 2329); Christiansen, No. 13-00297 (N.D. Ga.) more

Robyn Christiansen is a Utah woman who received a Wright Medical Technology “Conserve” artificial hip in 2006. In 2012, while doing yoga, she heard a “crunching sound” and felt sudden pain in her right hip. Ms. Christiansen was eventually diagnosed with having a loose acetabular cup which required revision surgery and removal of the cup.

In 2013 Ms. Christiansen sued Wright Medical Technology, Inc., and Wright Medical Group, Inc. in federal court for design defects, negligence, fraudulent misrepresentation, punitive damages, and other claims. The case was later moved to the multidistrict litigation site created for Wright Conserve Hip Implant System cases in Atlanta, Georgia (MDL No. 2329). Ms. Christiansen’s case was eventually selected as one of the bellwether cases for the Wright Conserve MDL.

After two weeks of trial, an Atlanta jury found in favor of Ms. Christiansen and awarded her $1,000,000.00 in compensatory damages (damages for actual injury and actual loss) and $10,000,000.00 in punitive damages. This was a big win.

Not surprisingly, the defense team filed post-trial motions, one for “judgment as a matter of law,” and another motion for a new trial, both based on the defense’s post-trial theories that the jury verdict was inconsistent with law and flawed based on juror confusion or bias. Wright Medical also moved to strike the punitive damages award.

Well-Meaning Reprehensible Conduct

Judge William S. Duffey, Jr., federal district judge in Atlanta, Georgia, presides over the Wright Conserve MDL. He denied all but one of Wright’s post-trial motions, but granted (in part) Wright’s motion to strike the punitive damages award. In his Order (which ran 100 pages), Judge Duffey held that the evidence supported a finding that Wright Medical engaged in reprehensible conduct, which in turn supported an award of punitive damages. See Order. Nevertheless, the judge then reached a curious conclusion, holding that Wright’s actions “did not display an extremely high degree of malice” or an “actual intent to harm.” Order, p. 92. Judge Duffey wrote that although the evidence presented at trial was “sufficient to support a finding of reprehensibility, Defendant’s conduct was motivated by a patient-centered objective to introduce a device to improve life quality for people like Plaintiff.” Order. p. 93.

I don’t know about you, but it seems odd to me that a medical device manufacturer’s actions could be viewed as “reprehensible,” and then conclude that the Defendant’s motivation was to improve the quality of life for hip replacement patients like Robyn Christiansen. Either the Defendant’s actions are reprehensible or they are not.

In any event, the judge then reduced the punitive damages award from $10,000,000.00 to $1,100,000.00, a figure which he claimed is “’reasonable and proportionate to the amount of harm to the plaintiff and to the general damages recovered.’” Order, p. 93. And the judge gets to make this call.

This is a reduction of $8,900,000.00, an astonishing result from a post-trial Order.

Judges Have Enormous Power

As you can see, judges have enormous power over the journey of every lawsuit assigned to them. A judge’s simple decision on the scope of discovery at the start of litigation can change the outcome of a case. And, when a jury trial is complete, a judge can change the results, as was the situation in the Christiansen case.

With this post-trial decision, the plaintiff’s team will undoubtedly file an appeal of Judge Duffey’s Order reducing the punitive damages award. The plaintiff’s appeal, if she brings one, will likely take a year or longer to move through the Eleventh Circuit Court of Appeals. In that time, the parties could come together and “settle” the matter pending the appeal. But make no mistake, after this post-trial decision, Wright Medical will not pay Ms. Christiansen the $11,000,000.00 the jury decided she should be paid. To get that amount of money, Christiansen will have to win her appeal and have the post-trial order reversed.

The Takeaway

As Yogi Berra said, “it ain’t over till it’s over.” And for a lawsuit it may often seem that the case is never over. In Ms. Christiansen’s case, even after three years of litigation, two weeks of trial, and a jury verdict, the results can change, either through post-trial motions or later on appeal to a higher court. It reminds me of the funny line from a comedian about the randomness of dreams, “you’re falling down a mineshaft now you’re in a parade.” Things can change abruptly in lawsuits too. Be vigilant, be prepared for uncertainty, and do not underestimate the immense power of your presiding judge.