What J&J Is Doing After Its $502 Million Hip Implant Loss

The medical device giant is complaining that a federal judge abused the bellwether process, setting the company up for future court losses.

Nancy Crotti

J&J is asking a Johnson & Johnson has asked a federal court to delay a trial over a hip implant made by its DePuy Orthopaedics subsidiary. They delay would give the companies more time to prepare their appeal of a $502 million award in a similar case in March.

The writ of mandamus, filed in the U.S. Court of Appeals for the Fifth Circuit, asks U.S. District Court Judge Ed Kinkeade in the Northern District of Texas to postpone the third trial in the multidistrict litigation surrounding the DePuy Pinnacle Ultamet metal-on-metal hip, which is scheduled to begin September 6.

In the mandamus petition, DePuy and J&J accuse Kinkeade of abusing the bellwether process by failing to enter a judgment in the first two of these MDL cases. The companies avoided a Pinnacle-related award in the first case when a federal jury in Dallas sided with them in an October 2014 verdict. They lost the second case, brought by five Texans who claimed severe pain and inflammation, bone erosion, tissue loss, and other problems related to the Pinnacle's high failure rates. They also claimed that the design was defective, and that J&J failed to give adequate warnings, and engaged in fraud by misrepresenting problems involving Pinnacle.

They also complain that the court rejected their "dispositive motions wholesale, allowing plaintiffs to proceed with novel and far-flung theories, unsupported in law, that will likely recur in most if not all cases in the MDL proceeding--including that parent companies can be held liable for the acts of their subsidiaries on an 'aiding and abetting' theory and that a design defect can be proven not by singling out a specific flaw in a specific device but instead by arguing that an entire line of products should not have been sold by any of a range of manufacturers."

J&J and DePuy also argued that court allowed "all manner of irrelevant and highly inflammatory evidence--including, for example, plaintiffs' counsel's gratuitous assertions that nonparty subsidiaries of J&J had made payments to 'Saddam's henchmen'; hearsay assertions from a book about supposedly improper scientific articles planted in the literature by 'Big Tobacco' and other 'industr[ies]'; allegations that the Pinnacle Ultamet poses a risk of cancer, even though no plaintiff alleged such an injury and no science supports it; references to an employee's unproven allegations of racist treatment at DePuy; and a suggestion that the failure of a metal-on-metal implant in another, nonparty individual led him to commit suicide.

It's no wonder the jury gave the plaintiffs such a large award in March, including $360 million in punitive damages, the companies said.

"Pressing forward with another trial now--before this Court has had an opportunity to review several critical legal and evidentiary rulings in the last trial that have broad implications for the remaining cases in the MDL proceeding - would corrupt the bellwether process," they wrote in the petition. "It stands to generate as many as twelve suspect verdicts against petitioners and thereby create significant pressure to settle this litigation before the parties have had a fair opportunity to evaluate the strengths and weaknesses of the relevant claims and defenses after an appeal to this Court."

J&J already had a nearly $3 billion settlement of more than 10,000 cases related to another metal-on-metal product, the ASR artificial hips. Now DePuy is concerned that the trial court's decision to move ahead with additional trials "will undermine the efficiency and fairness of the MDL proceeding," company spokesperson Mindy Tinsley wrote in an email.

The petition, which requests an oral argument, will likely be futile, according to the MDL plaintiffs' co-lead counsel, Mark Lanier of Houston.

"I see this as just an effort to intimidate the court, and frankly, they should know better," Lanier said. "This judge is not open to intimidation."

When it does begin, the trial will involve five to seven plaintiffs, probably from California, Lanier said.

Nancy Crotti is a contributor to Qmed.

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