DePuy Watch: $247 million award against DePuy and Johnson & Johnson in Texas – November 2017

On the 16 November 2017, a Federal jury in Texas found DePuy liable for a number of design and manufacturing defects, fraud and deceptive business practices, and found that both companies, Johnson & Johnson and DePuy Orthopaedics Inc. had behaved recklessly in the carrying on of their business practices.

Delivering a third straight win to patients, the jury found that the metal-on-metal hip implants, namely the ‘Pinnacle’ hip implants, were defectively designed and that the companies failed to warn consumers about the risks.
Six New York residents implanted with the metal on metal implants told the Court that they experienced tissue death, bone erosion and other injuries they attributable to design flaws with the implant.

Johnson & Johnson, which faces more than 9,700 Pinnacle related lawsuits in state and federal courts across the United States, said in a statement it would immediately begin the appeal process.

For the six individual plaintiffs, each of whom is from New York, the jury awarded more than $77 million in past and future medical expenses and pain and suffering, including each plaintiffs’ actual past medical expenses, the amounts of which were stipulated to by the parties. Four of the plaintiffs’ spouses were awarded loss of consortium damages totalling $1.7 million.

The jury specifically found Johnson & Johnson and DePuy liable for:-

• design defect
• negligent design
• inadequate warning
• manufacturing defect
• negligent manufacture
• negligent misrepresentation
• intentional misrepresentation to the surgeons who performed the initial hip implant surgeries on the plaintiffs
• fraudulent concealment from the plaintiffs and from the surgeons
• deceptive business practices as to the plaintiffs and the surgeons.
• negligent undertaking of a duty to provide services to DePuy and for aiding and abetting DePuy in its tortious conduct.

Injuries sustained by the Plaintiffs included severe tissue damage that caused permanent muscle loss, intense pain, loss of hip movement and walking with a permanent limp. Their medical witnesses told the Court how the Pinnacle product shed microscopic metal ions into their bodies, causing a dangerous increase in the blood metal ion levels – side effects that Johnson & Johnson and DePuy didn’t warn surgeons about and that could have been avoided with a safer design.

The plaintiffs alleged that Johnson & Jonson and DePuy valued marketing above research and development and rushed the Pinnacle product into production without adequate testing.

In his closing statement, plaintiffs’ counsel Mark Lanier of The Lanier Law Firm asked the jury to punish Johnson & Johnson “for being indifferent to our health” through a large punitive damages award that would capture the attention of company executives who didn’t attend the trial.
Johnson & Johnson and DePuy argued during the trial that metal-on-metal was a viable, reasonable option for hip implants and that its ‘Pinnacle Ultamet’ product was offered to help doctors choose the device that best fit their patients.

In a closing statement, defense counsel Steve Quattlebaum of Quattlebaum Grooms & Tull PLLC said the plaintiffs had made an emotional appeal and told a good story but that their allegations were not backed up by evidence or science. Quattlebaum said there’s no evidence the surgeons who treated the six plaintiffs relied on or even saw the 99 percent statistic when choosing which kind of implant to use and said there’s no evidence the plaintiffs’ injuries were caused by the product specifications the plaintiffs had complained about during the trial.

DePuy ceased selling the metal-on-metal Pinnacle devices in 2013 after the U.S. Food and Drug Administration strengthened its artificial hip regulations.

The Plaintiffs are represented by Mark Lanier of The Lanier Law Firm, Jayne Conroy of Simmons Hanly Conroy, Richard Arsenault of Neblett Beard & Arsenault and Wayne Fisher of Fisher Boyd Johnson & Huguenard LLP

The Defendants are represented by John H. Beisner, Stephen J. Harburg and Jessica Davidson Miller of Skadden Arps Slate Meagher & Flom LLP, Steven W. Quattlebaum of Quattlebaum Grooms & Tull PLLC and Tracie J. Renfroe of King & Spalding LLP.

The consolidated cases are Alicea et al. v. DePuy Orthopaedics Inc. et al., case number 3:15-cv-03489; Barzel v. DePuy et al., case number 3:16-cv-01245; Kirschner v. DePuy et al., case number 3:16-cv-01526; Miura v. DePuy et al., case number 3:13-cv-04119; Stevens v. DePuy et al., case number 3:14-cv-01776; and Stevens v. DePuy et al., case number 3:14-cv-02341, in the U.S. District Court for the Northern District of Texas]

At Coleman Legal Partners we continue to represent a multitude of Irish patients who had the DePuy ‘ASR’ and ‘ASR XL’ products implanted. The ASR hip implant was subject of a world-wide recall in August 2010 and all patients who had it installed in Ireland were contacted by their local health centres and hospitals. Patients were then given appointments to be reviewed by Consultant Orthopaedic Surgeons, have MRI’s, x-rays and their bloods taken – the results of which were analysed and if necessary for their health, revision surgery to remove the product were scheduled. Many patients underwent great trauma and anguish during this time and depending on the particulars of their injuries and the root of causation, litigation was then commenced against DePuy and Johnson & Johnson on an individual case by case basis as there is no provision for multiparty litigation in Irish Courts.