Texas Jury Orders Johnson & Johnson to Pay More than $1 Billion

Texas Jury Orders Johnson & Johnson to Pay More than $1 Billion

Pinnacle Hip Implants Found to Be Defective

On December 1, 2016, a federal jury in Dallas returned a verdict against pharmaceutical giant Johnson & Johnson and its subsidiary, DePuy Orthopaedics, holding that the company’s Pinnacle hip implant was negligently designed, that the company knew of risks associated with the product, and that the company failed to adequately warn consumers of those risks. The jury awarded six plaintiffs damages in excess of $1 billion-$32 million in compensatory damages and $1 billion in punitive damages. Johnson & Johnson had rejected a $1.8 million dollar settlement offer before trial.

The plaintiffs, who are California residents, say they suffered serious injury after receiving the DePuy product, including bone erosion and tissue death. They allege that Johnson & Johnson and DePuy falsely advertised that the Pinnacle hip implant, with its metal-on-metal design, was more durable and had a greater life than competing products that use plastic or ceramic parts.

Though plaintiff’s attorneys laud the verdict as a “loud and clear” message that Johnson & Johnson needs to address the legal issues related to the Pinnacle implant, most legal experts don’t see any movement any time soon. Attorneys for both companies say they will appeal the verdict and will ask the appeals court to suspend any further trials related to the hip implant.

The company faces more than 8,000 lawsuits tied to the device, all of which have been consolidated in the federal court in Texas. Last week’s verdict was the third “test case” regarding liability for the Pinnacle. Johnson & Johnson were found not liable in the first case, but were hit with a $500 million jury award in the second trial. That verdict was subsequently reduced to $151 million, based on Texas law.

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Huge Verdicts Won’t Spur Settlement Talks In J&J Hip MDL

By Jess Krochtengel

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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Rights of the unborn

I had a phone call today from a lady who recently suffered a miscarriage. She had been prescribed medication during her pregnancy which she believed caused the miscarriage. Without getting into the issue of whether the medication was the cause, I had to inform the mom of the very sad state of Texas law. Simply put, Texas medical malpractice laws do not protect the unborn. Since the Texas Supreme Court’s 1971 ruling in Yandell v. Delgado, a fetus is barred from asserting a claim for medical malpractice unless it is born alive. I know this seems to run contrary to much of what we hear and read about the rights of the unborn, but the Supreme Court has reaffirmed its position in Krishnan v. Sepulveda (1995), Edinburg Hosp. Auth. v. Trevino (1997) and Fort Worth Osteopathic Hosp. v. Reese (2004). The Supreme Court has held that the mother (but not the father) can recover for the loss of the fetus as a part of her body, but cannot recover mental anguish damages for the loss of the fetus as a separate individual. The Texas legislature in 2007 enacted Tex. Civ. Prac. & Rem. Code 71.003, creating a right to sue for the wrongful death of an unborn child. The catch is that the law does not apply to claims brought against doctors and hospitals. So parents can sue for the wrongful death of a fetus arising from a car crash, but not for egregious errors committed during delivery or prenatal care.

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When Are They Going to Learn?

From Texas Watch ”November 29th, 2011

Just because special interest lobbyists keep repeating the same thing over and over (and over) again, doesn’t make it true. In a recent op-ed piece, Thomas Wilder from the astro-turf lobby outfit known as the Citizens Against Lawsuit Abuse once again makes the argument that patients should be gleeful that the insurance and medical industries stripped patients of our legal right to hold an unscrupulous physician, dangerous hospital, or careless nursing home legally accountable.

Wilder drags out the same tired arguments that proponents have been clinging to for years. The problem is that each of their arguments have been debunked by independent, non-partisan, media sources.

For instance, Wilder claims that increases in physician supply in Texas are the result of limiting the rights of patients. The highly-respected, independent fact-checking organization PolitiFact rated a similar assertion by Governor Perry false. Additionally, a comprehensive review of the impact of the 2003 law by the Associated Press concludes that the growth in physicians tracks population increases. The AP also found that most new doctors have opted to practice in urban areas that weren’t facing a doctor shortage rather than under-served communities that most need those new physicians.

Wilder goes on to suggest that restricting the rights of patients will accrue significant savings to the health care system and taxpayers. This is simply untrue. Health care costs at both the family level and the overall system level are up dramatically since 2003. Health insurance premiums for Texas families have risen 13% faster than the national average. Similarly, costs incurred by Texas’s taxpayer backed Medicare program have also outpaced the rest of the nation.

Finally, the spate of recent headlines from cities all across Texas about dangerous doctors who continue to see patients despite track records of abuse, needless injury, and even death cannot be ignored. The fact is that so-called tort reform has done nothing to improve patient safety.

While special interest groups like the one that Dr. Wilder speaks for and the insurance industry crow, Texas patients continue to struggle under a broken health care system. No matter how many times they claim otherwise.

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THE OUTRAGEOUS AND SAD FACTS ABOUT EMERGENCY ROOM MEDICAL ERRORS


FACT #1: BAILEY & GALYEN receives 30 40 calls each month from potential new clients wanting to sue an emergency room doctor and hospital for their negligence.

FACT #2: Most of those potential new cases do actually involve clear negligence by the emergency room doctor and hospital.

FACT #3: Even with clear negligence by the emergency room doctor and hospital, you cannot pursue or file that case because the emergency room doctor and hospital are protected by Texas law.

The Texas legislature in 2007 amended the laws that deal with medical malpractice cases. Texas Civil Practice and Remedies Code Sec. 74.151, entitled Liability For Emergency Care, now states that a person who in good faith administers emergency care is not liable in civil damages for an act performed during the emergency unless the act is wilfully or wantonly negligent. The legislature has raised the level of proof required to file a lawsuit to the highest possible degree of negligence: Wilfull or wanton negligence, which means the medical error must have been intentional. That’s right. To hold the emergency room doctor and/or the emergency room staff accountable for any serious injury or death, you must be able to show that the treatment or lack of treatment by emergency room doctor and/or the emergency room staff totally disregarded or was totally indifferent to the known consequences which the patient suffered. It requires proof of actual or deliberate intention to harm the patient, or at a minimum an absolute and complete indifference to or conscious disregard for the patient’s safety. That standard is insurmountable, and it slams shut the courthouse door on the innocent victims.

Not being able to file a civil suit when a loved one has suffered serious complications, injuries or death from emergency room errors is a hard pill to swallow. How did this happen, you might ask? It is the result of the collision between political agenda of tort reform and patient safety where political agenda won.

The problem is that tort reform advocates never believe that they will be the innocent victim of emergency room medical malpractice. Further, they all believe that if they are, their claim will be meritorious and different from all those frivolous medical malpractice claims they heard so much about from tort reform advocates. The fact is that emergency room medical malpractice happens very frequently, and those who thought they would never find themselves in the innocent victim’s shoes and who supported the popular political agenda of tort reform do not like not being unable to hold accountable those responsible for these serious injuries and deaths. Put another way, Texas law gives emergency room physicians and hospitals absolute and complete immunity.