Law360, Dallas (December 2, 2016, 9:52 PM EST) -- Although a Texas federal jury hit Johnson & Johnson with a more than $1 billion verdict in the latest bellwether trial over the company's Pinnacle hip implants, fruitful settlement talks aren t likely to happen before the Fifth Circuit weighs in on J&J’s lengthy list of complaints about trial rulings, MDL experts say.
Pressure on J&J to find a way out of the thousands of remaining cases in the multidistrict litigation may be mounting after a jury on Thursday hit J&J and subsidiary DePuy Orthopaedics Inc. for a total of more than $1 billion in punitive damages and more than $32 million in compensatory damages to six hip implant recipients and some of their spouses. That followed a $502 million verdict in the second bellwether, later reduced to about $150 million, after a defense win in the first bellwether trial.
Yet a global settlement in the MDL is unlikely because J&J doesn t think the bellwether trials have given it a fair estimate of what each plaintiff’s case is worth, lawyers say. J&J has said the verdicts in the two latest trials provide "no guidance on the merits of the overall Pinnacle litigation" because of what it has argued are deeply flawed and unfair procedural and evidentiary rulings from the MDL judge.
"It seems like a situation where you couldn t be farther away from the parties both being in a position to have productive settlement discussions," said John Sullivan of Cozen & O Connor LLP. "I can t imagine a less likely scenario for settlement than here."
About 9,300 lawsuits involving the Pinnacle hip system’s Ultamet metal-on-metal implant have been filed in state and federal courts around the country, most of which are consolidated in an MDL presided over by U.S. District Judge Ed Kinkeade in Dallas.
Plaintiffs generally allege DePuy and J&J pushed to market a poorly designed product that injured them after friction between the device’s metal socket and metal ball head caused microscopic particles of metal to shed into their bodies. J&J has maintained it acted appropriately and responsibly in the development, testing and marketing of the Ultamet product.
The first bellwether trial, involving a single plaintiff from Montana, ended in a defense win. The second bellwether consolidated five plaintiffs from Texas, who won a $502 million verdict that was later reduced to about $150 million under a Texas law that caps punitive damages.
In the third bellwether, jurors deliberated for less than a day following a two-month trial before awarding each of six California plaintiffs between $4 million and $6 million in actual damages. The jury also found each plaintiff entitled to $84 million from DePuy and $84 million from J&J, bringing the total damages award to more than $1.04 billion.
Diane Lifton of Hughes Hubbard & Reed LLP said her immediate reaction to hearing about the $1 billion verdict or any verdict of comparable size is to look to see what evidence was in front of the jury and what the companies concerns are about that evidence.
"It suggests to me that there may be evidentiary concerns about what went before the jury," Lifton said.
In both the second and third bellwether trials, evidentiary rulings prompted multiple mistrial motions from J&J and DePuy, which have suggested to the Fifth Circuit that Judge Kinkeade allowed a virtual free-for-all in the second trial, allowing in prejudicial and inflammatory evidence. The plaintiffs have told the Fifth Circuit the verdict in the second trial was a reflection of a jury holding companies accountable for prioritizing profits above patient safety, not the result of a flood of prejudicial evidence.
In July, the Fifth Circuit rejected J&J’s request for an expedited appeal of the second bellwether and the appellate court also declined J&J’s request to stop the MDL court from holding the third trial while the appeal was pending.
"I think until the appellate issues are resolved with respect to the evidence presented to the jury, it will be difficult to reach a global resolution of the cases," Lifton said.
In the third trial, controversial evidence included the mention of an $84 million deferred prosecution agreement J&J entered to end an investigation into alleged kickbacks. That piece of evidence and a witness subsequent testimony that J&J paid the settlement to make a "headache" go away played a central role in the plaintiffs closing argument and appears to be directly reflected in the jury’s $84 million-per-plaintiff punitive damages award.
Sullivan said before it considers settling the MDL, J&J will want the Fifth Circuit’s take on whether evidence like the deferred prosecution agreement can be admitted during trial. The company has a valid concern that prejudicial evidence without a tangible relationship to the injuries sustained by the plaintiffs could unduly ratchet up a jury verdict, he said.
"It’s just a concern when you see a $1 billion verdict," Sullivan said. "It’s hard not to seriously consider whether those issues did affect the verdict."
Max Kennerly of Kennerly Loutey LLC, who represents plaintiffs in product liability and medical malpractice cases, brushed off the complaints about the bellwether trials as "bluster" from J&J that won t ultimately stop the parties from settling the MDL. Even if it genuinely believes it was prejudiced at the bellwethers, the company should still act rationally, as it did when it reached a $2.5 billion global settlement related to DePuy’s ASR line of hip implants, he said.
"Johnson & Johnson always has an excuse for why they can't begin reasonable settlement discussions," Kennerly said. "They have an excuse for why they can't settle the Ethicon mesh cases, an excuse for why they can't settle the Risperdal cases and now an excuse for why they can't settle the Pinnacle cases. It's all bluster. At some point, they'll either come to their senses, or their shareholders will make management come to their senses."
Lawyers say even taking the splashy punitive award out of the picture, the jury verdict in the third bellwether still won t serve as a strong platform to launch settlement talks.
The jury awarded $4 million to plaintiffs who had one hip implant, plus their individual medical bills, and awarded $6 million plus medical bills to plaintiffs who had two implants.
Lifton said that kind of result makes it impossible to discern which aspects of the plaintiffs individual circumstances affected the jury, so it’s difficult to use them as a basis for valuing the thousands of remaining cases.
"Another concern one might consider with these verdicts all being the same size is that a case involving more challenging facts can affect the outcome of a case with less significant damages they all get taken along for the ride and it’s impossible to tease out what the jury’s reaction was to each part of the case and each scenario," Lifton said. "That’s why you ll hear arguments among the defense bar against these kinds of consolidated trials."
Yet Michael Walsh of Strasburger & Price LLP said that although the compensatory damages awards to each plaintiff were probably too high, they are not so unreasonable that they can t be the basis for the beginning of a settlement discussion so long as the punitive awards remain off the table. The MDL docket is so massive, he said, the defense has to face the question of at what point do they try to clear it out and leave trials for cases they have a better chance of winning.
"Perhaps the prudent thing to be looking at is, it’s a big monster litigation and the numbers are huge but this is not the first time we ve seen this," Walsh said. "I don t know that the compensatory damages are so completely out of whack that there’s no expectation meaningful progress can be made in getting rid of some subset of cases."
Still, the punitive damages award is part of the case, and juries in two trials have decisively found the companies liable for wrongdoing, Walsh said. With the punitive awards what they are, even if the trial judge did pare back the verdict before entering judgment, Walsh said, he "can t see that there’s any number that would lead to settling the docket."
While the gears of the appellate process grind, the parties are facing their next trial date. Judge Kinkeade set the fourth bellwether for September and has named 10 plaintiffs, each from New York, whose cases should be prepared for the trial.
J&J has said it will "continue to urge that no further trials be conducted until we receive appellate court guidance."
But because the Fifth Circuit rejected the company’s request after the second bellwether, lawyers are skeptical the $1 billion plaintiffs verdict is enough to change the appellate court’s mind about putting future trials on ice.
"If the Fifth Circuit didn't intervene before this trial, I see no reason why they would intervene after it either," Kennerly said. "This trial didn't raise any issues substantially different from the first trial. In my opinion, the size of the verdict doesn't change that analysis."
Walsh said he thinks the verdicts are sizable enough that they should have gotten the Fifth Circuit’s attention about potential problems with the bellwethers, but doesn t expect to see the court stop future trials.
"If $500 million didn t get their attention, $1 billion isn t going to get their attention," he said. "If it were $1 trillion, maybe."
The patients are represented by W. Mark Lanier of The Lanier Law Firm, Richard Arsenault of Neblett Beard & Arsenault, Jayne Conroy of Simmons Hanly Conroy LLC and Khaldoun Baghdadi of Walkup Melodia Kelly & Schoenberger, among others.
DePuy and Johnson & Johnson are represented by Steve Quattlebaum of Quattlebaum Grooms Tull & Burrow PLLC, John Anderson of Stoel Rives LLP, Dawn Estes of Estes Thorne & Carr, Michael Powell and Seth Roberts of Locke Lord LLP and Stephen J. Harburg, John H. Beisner, Jessica Davidson Miller and Geoffrey M. Wyatt of Skadden Arps Slate Meagher & Flom LLP.
The MDL is In re: DePuy Orthopaedics Inc. Pinnacle Hip Implant Products Liability Litigation, case number 3:11-md-02244, in the U.S. District Court for the Northern District of Texas.
--Editing by Mark Lebetkin and Jill Coffey.
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Formaldehyde is commonly used in the flooring industry as a binding agent, but there are strict limits on how much of the chemical can be used. The CDC report confirms a 60 Minutes investigation that found Lumber Liquidators’ laminate flooring exceeds these limits and that the Chinese factories supplying the flooring mislabeled the products as meeting stringent health standards.
Although the laminate top is meant to contain the formaldehyde typically used, the excessive amount found in the Lumber Liquidators laminate flooring escapes and puts people at risk. According to Denny Larson, the expert consulted in the 60 Minutes investigative report, the risk is made greater due to the fact that you are living with it on a daily basis. You're in a chamber so you're living with it. You're sleeping in there. And you're constantly exposed. That's the threat. The constant exposure to a potent carcinogen ...
The CDC strongly stress[es] taking steps to reduce exposures, which should alleviate respiratory and eye, nose and throat irritation. These steps should also reduce the cancer risk. The only way to reduce your exposure is to remove the risk.
If you purchased and installed Lumber Liquidators laminate wood flooring, you should contact us immediately. Together, we can determine your potential risk and we can help you recover your economic damages to rip out and replace the dangerous flooring.
Under Texas law the amount a person is entitled to recover when they are injured by another person’s negligence is reduced by the injured person’s percentage of responsibility. For example, if Susan’s damages (medical bills, pain and suffering, lost wages, etc.) total $100,000 and she was 25% at fault then her recoverable damages will be reduced by 25%. So she will be entitled to recover $75,000 from Joe’s insurance company. If she was 40% at fault then she will be entitled to $60,000. However, if she was 51% at fault or more then she will be barred from recovering anything and will receive zero.
Contributory negligence is only one defense that insurance companies may assert in denying personal injury claims or offering small amounts to settle. There are several other defenses they may try to claim. A board certified personal injury attorney is often able negotiate these issues and reach a mutually agreeable settlement with an insurance company. However, sometimes settlement is not possible and it becomes necessary to file a lawsuit. A jury then decides these issues.
The reason for the imposition of such strict liability is explained in the Third Restatement of Torts, which states:
Given the defendant’s knowledge, the reasonableness of the defendant’s conduct in retaining the animal is at least questionable, and strict liability gives the owner an incentive to consider whether the animal should be retained. Even if that retention is itself proper, an abnormally dangerous animal is by definition unusual; owning such an animal is an activity engaged in by a few that poses significant risks on others within the community. In these circumstances, strict liability is fairly imposed.
Restatement (Third) of Torts, 23 cmt. b (2010). Thus, [t]he owner of a domestic animal is not liable for injuries caused by it in a place where it has a right to be, unless the animal is of known vicious propensities or the owner should know of the vicious or unruly nature of the animal. Searcy v. Brown, 607 S.W.2d 937, 941 (Tex. App. Houston [1st Dist.] 1980, no writ). Whether a dog has a vicious nature and whether the owner is aware of that nature is a question for the finder the jury to determine. See Pate v. Yeager, 552 S.W.2d 513, 516 (Tex.Civ.App. Corpus Christi 1977, writ ref d n.r.e.). Once an owner is aware of his dog’s propensity for viciousness he need not be negligent in order to be liable for the injuries caused when his dog bites a third party. See Bly v. Swafford, 199 S.W.2d 1015, 1016 (Tex.Civ.App. Dallas 1947, no writ) (an owner, whether negligent or not, knowing [his] dog is vicious, is liable for injuries to [a] person bitten by it.).
One means of imposing liability on the owners of dogs for attacks which result in injuries is the imposition of strict liability against such dog owner. To recover on a claim of strict liability for injury by a dangerous domesticated animal, such as a dog, it must be shown that: (1) the defendant was the owner or possessor of the animal; (2) the animal had dangerous propensities abnormal to its class; (3) the defendant knew or had reason to know the animal had dangerous propensities; and (4) those propensities were a producing cause of the plaintiff's injury. See Thompson v. Curtis, 127 S.W.3d 446, 451 (Tex.App.--Dallas 2004, no pet.); Villarreal v. Elizondo, 831 S.W.2d 474, 477 (Tex.App.--Corpus Christi 1992, no writ). The need for establishing knowledge of some vicious propensity on the part of the animal in question has given rise to strict liability being referenced as the so-called one-bite rule. 
As our courts have explained, "in a dog bite case the controlling issue to be determined is whether the party complained against has knowingly kept or harbored a vicious dog." Arrington Funeral Home v. Taylor, 474 S.W.2d 299, 300 (Tex.Civ.App.--Eastland 1971, writ ref'd n.r.e.). Stated differently, the one-bite rule provides that an "owner, whether negligent or not, knowing [his] dog is vicious, is liable for injuries to [a] person bitten by it." Bly v. Swafford, 199 S.W.2d 1015, 1016 (Tex.Civ.App.--Dallas 1947, no writ). As our courts have noted, this rule does not purport to focus in any way on the particular breed of the dog which engages in the attack. See Allen ex rel. B.A. v. Albin, 97 S.W.3d 655, 664, n. 6 (Tex.App.--Waco 2002, no pet.). Thus, the fact that the attacking dog might be a pit bull, or similar breed with a public perception of increased hostility, will not give rise to any presumption of hostility for purposes of establishing liability.
 Other means of imposing liability against the owner of an attacking dog include negligence (e.g. negligent handling of an animal), and negligence per se (e.g. violation of ordinances).
 Although referred to as the one bite rule, it should be noted that a bite is not the only aggressive action which will give rise to a presumption of knowledge of vicious propensities.
As a kid, I used to absolutely love going to the local five and dime store with my Mom. Perry s, a local store in Dayton, Texas, was a huge store and had everything you could imagine. To a young child, the store was full of wonder and opportunity. Even though I was very young, my mother would allow me to wander the store by myself while she shopped. I spent countless hours in the toy aisle, but I also explored every other part of the store just dreaming about what I could do with a new pair of rubber boots or a new pocket knife. I loved that store and I was always so excited to be there.
But, I was also terrified. I was terrified of this one sweet old lady. She was a store employee and a spy. She was an elderly woman in horn rim glasses and she followed me wherever I went. She tried to hide, but I always knew that she was there. Her presence was a dark cloud that hung over me as I wandered the store and was constantly reminded that if you break it, you buy it. Even though my mother trusted me, that sweet old lady was always around to hold me accountable if I were to actually break something.
Because I was so scared of her, I never bought a broken item. I actually never broke anything. But, I always knew that I would be held accountable if I were careless and something did break. Although I had a healthy fear of that sweet old lady, her mere presence served as a deterrent and a constant reminder that I should be careful not to break anything.
Personal responsibility is a good value. If you break it, you buy it is a good rule. No one should have to bear the financial burden of someone else’s careless or negligent act.
The same principle applies to injuries caused by someone other than you. Injuries caused by others lead to financial harms and losses. Sometimes, these financial harms and losses can be overwhelming. The same rule of you break it, you buy it should apply in this situation. The one who injured, or broke you, should be held responsible and accountable to pay for your financial harms and losses.
Conservatives stand firm on the constitution rightfully so I must add - and most Texans are strong believers in the Constitution. Just dare to take away their gun and you will see what I mean. But, while they strongly and again, rightfully - defend the 2nd Amendment, they allow their own conservative politicians to trample all over their constitutional rights to freely access the courts.
The 7th Amendment to the U.S. Constitution states in suits at common law, where the value in controversy shall exceed $20, the right of trial by jury shall be preserved.
Juries exist to hold wrongdoers accountable for their actions. Juries are the sweet old lady in horn rim glasses who actively serve as a deterrent and a strong reminder to be careful, to act appropriately, to consider the safety of others, to make safe products, and to treat patients with the proper level of care.
Even though she terrifies us at times, the jury system is a necessary and vital tool that our forefathers were right to preserve. Personal responsibility is a good conservative value. But, when people fail to accept responsibility for their actions, the jury system is there to hold them accountable. She’s a sweet old lady.
Few things are as synonymous with Texas culture and heritage as horseback riding. Yet it is an activity which offers numerous risks of injury. In recognition of these known risks, and the importance of livestock to the state, the Texas Legislature enacted the Texas Equine Act in 1995. The Equine Act, as amended¹, provides:
- [A]ny person, including a farm animal activity sponsor, farm animal professional, livestock producer, livestock show participant, or livestock show sponsor, is not liable for property damage or damages arising from the personal injury or death of a participant in a farm animal activity or livestock show if the property damage, injury, or death results from the dangers or conditions that are an inherent risk of a farm animal activity or the showing of an animal on a competitive basis in a livestock show
TEX. CIV. PRAC. & REM. CODE 87.003. The Act therefore shields those who provide or otherwise offer horses and other livestock for recreational use from liability for injuries sustained form so-called inherent risks of these activities. Among such inherent risks identified in the statute are:
- the propensity of a farm animal or livestock animal to behave in ways that may result in personal injury or death to a person on or around it;
- the unpredictability of a farm animal's or livestock animal's reaction to sound, a sudden movement, or an unfamiliar object, person, or other animal;
- with respect to farm animal activities involving equine animals, certain land conditions and hazards, including surface and subsurface conditions;
- a collision with another animal or an object; or
- the potential of a participant to act in a negligent manner that may contribute to injury to the participant or another, including failing to maintain control over a farm animal or livestock animal or not acting within the participant's ability.
TEX. CIV. PRAC. & REM. CODE 87.003. This list of inherent risks is not, however, exclusive. See Loftin v. Lee, 341 S.W.3d 352, 356 (Tex. 2011). Surprisingly, among the unlisted inherent risks recognized by our courts is the risk that your activity’s sponsor will be negligent. See Loftin v. Lee, 341 S.W.3d at 357. The Act does, however, provide exceptions to its protections. These exceptions are for equipment provided by a defendant and known to be faulty; known latent conditions of the land; and willful, wanton, or intentional conduct. See generally TEX. CIV. PRAC. & REM. CODE 87.004. Additionally, the Act does not protect a defendant who provided the animal, but did not make a reasonable and prudent effort to determine the ability of the participant to engage safely in the farm animal activity or livestock show and determine the ability of the participant to safely manage the farm animal or livestock animal, taking into account the participant's representations of ability. TEX. CIV. PRAC. & REM. CODE 87.004(2).
At the law offices of Bailey & Galyen, we provide a free initial consultation to every client. To set up an appointment with an experienced Texas personal injury attorney, contact us by e-mail or call our offices at one of our convenient locations. We will take your call 24 hours a day, seven days a week.
¹The Act was amended in 2011 to provide the same limitations of liability described herein to most livestock activities in general, as opposed to just equine activities.