On November 30, a federal jury in Dallas, Texas ordered Johnson & Johnson and its DePuy Orthopaedics unit to pay more than $1 billion to six plaintiffs who said they were injured by Pinnacle hip implants.
The jury found that the metal-on-metal Pinnacle hip implants were defectively designed and that the companies failed to warn consumers about the risks. The company plans to appeal the verdict. According to an attorney for the plaintiffs, the verdict of $1.041 billion included $32 million in compensatory damages, with the remainder punitive damages, Reuters reports. Parker Waichman notes that other manufacturers including Stryker, Smith & Nephew, Zimmer, Biomet, and Wright Medical all face lawsuits over their metal hip devices.
The $1.04 billion award is the third-largest overall jury award of 2016, according to Bloomberg. Such steep damage awards are intended to dissuade the defendant from continuing the practices on trial.
Plaintiffs Allege Serious Injuries from Failed DePuy Hip Implants
The six people who were awarded more than $1 billion are California residents who were implanted with the Pinnacle hip device. They experienced tissue death, bone loss and other injuries they attributed to design flaws with the Pinnacle hip. The plaintiffs claimed DePuy and J&J promoted the Pinnacle devices as lasting longer than hip models that contain ceramic or plastic materials. The expected durability of metal-on-metal devices has been a strong selling point for all-metal hip devices. With the average hip replacement lasting about 15 years, a patient who first has hip replacement in his or her forties or fifties could need hip replacement again two or possibly three times. And more people are choosing hip replacement at younger ages in order to maintain an active, even athletic, life.
DePuy and Johnson & Johnson denied any wrongdoing in the development and marketing of the Pinnacle hip. DePuy stopped selling the metal-on-metal Pinnacle devices in 2013 after the U.S. Food and Drug Administration (FDA) strengthened its warnings and regulations for metal-on-metal hips. That year, J&J and DePuy reached a $2.5 billion agreement to settle more than 7,000 lawsuits over its ASR metal-on-metal hip devices. The ASR devices were recalled in 2010 due to high failure rates. The Pinnacle hip devices were not included in that settlement.
Size of Award Could be Reduced
The court often reduces jury awards of this size. In July, U.S. District Judge Edward Kinkeade, who is presiding over the DePuy Pinnacle litigation, reduced a $500 million verdict in an earlier Pinnacle implant case to $151 million. Judge Kinkeade cited a Texas state law that limits punitive damages awards. The plaintiffs appealed the reduction in the award and Johnson & Johnson and DePuy have appealed the jury verdict in the case. But in this case, the plaintiffs are all California residents and California has no cap on punitive damage awards, so it may be difficult for J&J and DePuy to argue that the award should be reduced under state law.
J&J and DePuy face nearly 8,400 lawsuits over the devices. These cases which have been consolidated in a multidistrict litigation (MDL) in Texas federal court. Test cases—bellwether cases—are the first cases to go to trial. The outcome of these representative cases can help the parties determine how to handle the remaining claims.
The November 30 verdict came at the end of the third bellwether case. In the first case, which went to trial in 2014, Johnson & Johnson was cleared of liability. The second case was the one that ended in the $500 million verdict that was later reduced. The company rejected a $1.8 million settlement offer from the plaintiffs before trial.
An attorney for J&J said the company would ask the appeals court to postpone any additional trials over the Pinnacle device. J&J has criticized the trial judge over certain rulings it claimed help the plaintiffs.Lawyers for J&J said Judge Kinkeade’s rulings barred J&J from providing “a fair presentation to the jury.” A company statement said DePuy acted appropriately in designing and testing the hips. The companies believe they have strong grounds for appeal and they are committed to defending against lawsuit allegations, according to the statement.
But the plaintiffs’ attorney feels the jury is sending the message to J&J that “they better settle these cases soon.” By taking more of these cases to trial, the company is “driving up their costs and driving the company’s reputation into the mud.”
Johnson & Johnson has experienced a series of losses in jury trials, Bloomberg reports. Six of the seven largest product-defect verdicts in the U.S. this year have been against J&J units, including three verdicts in lawsuits alleging J&J talcum powder products cause ovarian cancer.
The patients in the Pinnacle cases allege that the DePuy hips leached cobalt and chromium material into the bloodstream when the metal components came into contact during normal movement, leading to device failure. The failed hips need to be removed and replaced. This surgery—revision surgery—is more difficult than the original surgery because of bone and tissue damage caused by the failed hip implant.
The plaintiffs also contend DePuy officials rushed the Pinnacle hips to market with little testing and that the companies turned a blind eye to studies that showed metal-on-metal hip devices posed a deterioration risk for human tissue and bone.
Erik Gordon, a University of Michigan law professor, who teaches about drug and device development and regulation, said he thinks J&J should not wait for the outcome of an appeal but should begin settlement talks. The companies may think they have good defenses to the allegations, but these arguments “don’t seem to be working with juries,” Gordon said. In light of the billion-dollar verdict, the companies should start thinking about settling the claims “before the price goes up any more,” Bloomberg reports.
Legal Help for Those Injured by a DePuy Pinnacle Hip Implant
If you or someone you know has been injured by a Pinnacle hip or other metal-on-metal hip replacement device, you should contact the attorneys at Parker Waichman LLP for a free, no obligation evaluation of your case. To reach the firm, fill out the online form or call 1-800-YOURLAWYER (1-800-968-7529).