Johnson & Johnson Hit Third Time Over Pinnacle Metal-on-Metal Hips

A Dallas federal jury on Thursday found in favor of six plaintiffs and against Johnson & Johnson and its DePuy Orthopaedics unit. The $247 million verdict is the third loss J&J has had in four civil jury trials. The verdict includes $78 million in compensation for the plaintiffs’ injuries and more than $168 million in punitive damages.

J&J won the first Pinnacle test trial in 2014, but subsequent juries determined the companies to be liable. A jury in March 2016 awarded five Texas plaintiffs $500 million in damages. That award was later cut to $150 million. 

J&J and DePuy were also found liable at a trial in March, during which a jury awarded six California patients $1 billion - a verdict that was later reduced to $543 million. 

Six New York residents implanted with the devices said they experienced tissue death, bone erosion and other injuries they blamed on design flaws. The jury found that the metal-on-metal hip implants were defectively designed and that the companies failed to warn consumers about the risks. 

J&J faces more than 9,700 Pinnacle lawsuits in state and federal courts across the United States. It is more likely than not that J&J will appeal the verdict, as they have the other three. Three more bellwether trials have been scheduled. These gigantic losses could weaken the company’s position in any settlement talks with plaintiffs in the MDL. A previous DePuy hip-implant settlement cost the company billions. Johnson & Johnson agreed to resolve more than 9,800 lawsuits over DePuy’s ASR hip implants for $4.4 billion in 2013 and through a settlement extension in 2015.

The ASR model was recalled. The Pinnace model was never recalled, however DePuy ceased selling the metal-on-metal Pinnacle devices in 2013 after the U.S. Food and Drug Administration strengthened its artificial hip regulations.

Pittman, Dutton & Hellums is actively filing cases on behalf of individuals allegedly injured by both types of artificial metal-on-metal hip implants- ASR and Pinnacle models. If you would like a free case evaluation, please contact Booth Samuels toll free at 1-866-515-8880 or at booths@pittmandutton.com.

DePuy Hit With $1 Billion Jury Verdict

Last week, a Texas federal jury found Johnson & Johnson’s DePuy Orthopaedics Inc., unit liable for more than $1.04 billion in a six-plaintiff bellwether trial targeting metal-shedding artificial hips that are part of its Pinnacle line.

This MDL bellwether trial involved the DePuy Pinnacle implant, not to be confused with the recalled DePuy ASR implant. The Pinnacle implant was designed with a metal, rather than a safer ceramic or polyethylene, socket. The metal-on-metal design causes the socket to rub against the ball head, which can lead to corrosion and can cause bone and surrounding tissue to erode over time. All of the Plaintiffs in the trial had to undergo revision surgeries to replace the implants and repair the damage. Jurors heard testimony that Johnson & Johnson and DePuy aggressively marketed the implants and employed tactics that included paying kickbacks to surgeons for using the device although they were aware of safer alternatives.

The verdict includes more than $30 million in actual damages for the six plaintiffs and more than $1 billion in punitive damages assessed against Johnson & Johnson and DePuy.

This is the not the first loss for J&J and DePuy over the Pinnacle. In March 2016, a Dallas jury awarded more than $500 million to five individuals who suffered similar physical and medical complications caused by the controversial Pinnacle hip implant. DePuy did win the first bellwether trial.

The case is IN RE: DePuy Orthopaedics Inc., Pinnacle Hip Implant Products Liability Litigation, MDL 3:11-md-0244

Another bellwether trial, which will involve 10 patients, has been scheduled by U.S. District Judge Ed Kinkeade in Dallas for September, 2017.

Jury Finds For J&J DePuy In First Pinnacle Bellwether Case

Yesterday, a nine member panel found for the defendant Johnson & Johnson and their subsidiary DePuy Orthopaedics in the first MDL bellwether case to go to trial over the Pinnacle Metal-On-Metal hip replacement device. The jury deliberated for a little more than two days. The trial lasted eight weeks.

In what is a huge blow to the nearly 6,000 other claimants in the MDL, the jury found that the devices were safe when used and implanted properly. Lawyers for the defendants basically blamed the surgeons who implanted the plaintiff’s devices for not properly positioning them when implanted.

The plaintiff in the trial claimed that the metal-on-metal wear from the device resulted in exposure to extremely high levels of cobalt and chromium which affected poisoned her blood and caused soft tissue damage. She ultimately had to have bi-lateral hip surgeries to remove to the devices.

The Pinnacle device is different than DePuy’s ASR Metal-On-Metal hips in several facets, although they appear to be extremely similar. The ASR was recalled by J&J, whereas J&J just stopped selling the metal-on-metal version of the Pinnacle hip in August 2013 after the FDA said it would require device makers to submit new versions of the artificial hips for pre-market approval. J&J settled the ASR MDL last year for an estimated $4 Billion.

Of course, this is just the first chapter in what will most likely be a long and drawn out fight. J&J and DePuy face several other Pinnacle trials in different jurisdictions that are set soon, and there were will most likely be several other bellwether trials coming out of the MDL. 

First Pinnacle Bellwether Trail To Start Today

Jury selection is set to begin today in the first bellwether case in the DePuy Pinnacle MDL. It is among more than 6,000 cases currently pending in the MDL. The cases have been consolidated before U.S. District Judge Ed Kinkeade in Dallas. Judge Kinkeade will preside over the trial.

Depuy is a subsidiary of Johnson & Johnson (“J&J”). The plaintiffs allege metal-on-metal version of the Pinnacle hip was defectively designed and caused metal debris to leech into patients’ bloodstreams. 

J&J had heavily touted the metal-on-metal implants, first sold in the U.S. in 2005, as a design that would last 20 years and offer greater range of motion. However, J&J stopped selling the metal-on-metal version of the Pinnacle hip in August 2013 after the U.S. Food and Drug Administration said it would require device makers to submit new versions of the artificial hips for pre-market approval.

The Pinnacle line of hips wasn’t covered by J&J’s $2.5 billion settlement of claims that its ASR hip devices shed chromium and cobalt debris from the metal-on-metal which caused tissue death and increased metal ions in the blood. Other complications from the ASR hip devices included dislocations, pain, and required surgical removal.

It is estimated the trial will last up to six weeks.

Jury Hits Johnson & Johnson in Mesh Case with $7.6M in Punitive Damages

A month-long jury trial against Johnson & Johnson’s Ethicon subsidiary ended badly last week for the mega-corporation (Gross v. Gynecare Inc., Superior Court of Atlantic County, New Jersey, Atl-L-6966-10). A New Jersey jury came out with a $3.35 million verdict in favor of the plaintiff and hit the company for $7.76 million in punitive damages.

The case was tried in Atlantic City over J&J’s Gynecare Prolift vaginal mesh implant. J&J is the world’s largest seller of healthcare products. The New Jersey transvaginal mesh lawsuit is one of 1,800 pending against J&J and its Ethicon division in a multicounty litigation underway in Atlantic County Superior Court. There are approximately 2,000 cases nationwide in various US district federal courts, while most are consolidated in West Virginia.

The Plaintiff, Linda Gross, recounted from the stand that her life since receiving Ethicon’s Gynecare Prolift device as being a “living hell.” Despite undergoing 18 corrective surgeries, the 47-year-old former nurse from South Dakota said she is unable to sit or stand for long periods of time without feeling pain. In urging the jury to award punitive damages, the Plaintiffs’ attorneys said Johnson & Johnson was a “big giant” and jurors must send a “loud message” to punish the company for its conduct, according to Bloomberg.

The $3.35 million compensatory damage verdict in favor of Ms. Gross includes economic loss, pain and suffering, and more. Under New Jersey state law, punitive damages are capped at five times the compensatory damages. Her allegations were that J&J knew it sold a defective device despite knowing the risk of scar and pain, organ damage and perforation.

The jury found that J&J failed to warn the plaintiff’s surgeon of the risks of its Gynecare Prolift implant and fraudulently misled her about the risks. This is the first trial involving 2,100 New Jersey lawsuits and about 2,000 cases nationwide in US District federal court, consolidated in West Virginia - all of which are over J&J’s vaginal mesh.

It is believed that J&J is worth $121 billion and has a net worth of about $65 billion. Last year it spent $21 billion on marketing and advertising alone, which translates to $57 million per day. This behemoth medical company spends $3.5 million on advertising every 45 minutes, which is the same sum that the jury awarded Linda Gross.

J&J is also in serious legal hot water over their subsidiary DePuy and their manufacturing of metal-on-metal hips such as the ASR and Pinnacle. Litigation in regards to those products have both been consolidated into MDL’s.

Transvaginal mesh devices are used to treat pelvic organ prolapse and stress urinary incontinence. They have been the subject of growing safety concerns since October 2008, when the U.S. Food & Drug Administration (FDA) issued a Public Heath Notification advising it had received more than 1,000 complaints over a three year period relating to vaginal mesh products. In July 2011, the FDA issued another alert, noting that it had received a total of 2,864 additional reports of complications. The agency concluded that serious injuries associated with surgical mesh for transvaginal repair of pelvic organ prolapse, were “not rare,” and further advised that transvaginal prolapse repair with mesh “does not improve symptomatic results or quality of life over traditional non mesh repair.”

The attorneys at Pittman, Dutton & Hellums are currently investigating claims against the manufacturers of mesh products. If you or a loved one experienced injuries from a mesh product, please contact Booth Samuels at booths@pittmandutton.com or toll free at 1-866-515-8880.

DePuy Pinnacle MDL News

More than 900 federal DePuy Pinnacle hip replacement lawsuits have been filed and have been included in the multidistrict litigation, or “MDL”, In re: DePuy Orthopaedics, Inc. Pinnacle Hip Implant Products Liability Litigation (MDL No. 2244). On February 1, 2012, a Master Cast List was entered by the court, detailing the case numbers, filing dates, and transferor districts of the DePuy hip replacement lawsuits currently pending before Judge James E. Kinkeade in the U.S. District Court for the Northern District of Texas. These cases were centralized for MDL on May 23, 2011.

Judge Kinkeade recently appointed plaintiffs’ counsel to serve on various leadership committees. In addition to assigning leadership rules, Judge Kinkeade appointed James M. Stanton as Special Master to help the court with pre-trial, trial and post-trial tasks. Now that DePuy hip replacement lawyers involved in the litigation have been assigned leadership roles and a Special Master named, discovery and motion practice can move forward. The initial discovery process will likely involve the identification and noticing of certain witnesses for depositions.

Growing at a rate of roughly 100 lawsuits per month, the Pinnacle hip litigation has steadily picked up steam since its inception nearly nine months ago. The growth of the DePuy Pinnacle MDL might be due to Johnson & Johnson’s recall of another one of its hip implant products. In August 2010, Johnson & Johnson issued a worldwide recall of its ASR metal-on-metal hip implants due to their excessively high failure rates. The recall was prompted by a study from the National Joint Registry of England and Wales, which concluded that 1 out of every 8 patients who received the devices had to undergo revision surgery within five years.

The growth of the Pinnacle MDL may also be attributed to greater consumer awareness of the dangers of metal-on-metal hip replacements, which have been widely reported by the media in recent months. The New York Times in December 2011 described problems with all-metal hips—originally intended to be more durable than implants made from metal and plastic components—as “the most widespread medical implant failure in decades.”

Artificial hips are intended to last at least fifteen years, but some all-metal versions fail as early as a few years after implantation. The high failure rate is widely attributed to the release of metal particles into a patient’s body, which results from friction between the ball and socket portions of metal hips. Some recipients are reporting symptoms of Pinnacle metal toxicity.

Although the metal-on-metal Pinnacle hip replacement devices at issue in the Pinnacle MDL lawsuits were not subject to the hip replacement recall 2010, plaintiffs allege that they share similar design defects to the ASR hip devices.

Pittman, Dutton & Hellums is actively filing cases on behalf of individuals allegedly injured by both types of artificial metal-on-metal hip implants- ASR and Pinnacle models. If you would like a free case evaluation, please contact Booth Samuels toll free at 1-866-515-8880 or at booths@pittmandutton.com.

The Cost of Metal-on-Metal Hip Implants

Some are calling metal-on-metal hip implants the most widespread medical implant failure in decades. Medical and legal experts estimate the hip failures may cost taxpayers, insurers, employers and others billions of dollars in coming years, contributing to the soaring cost of health care. The financial fallout is expected to be unusually large and complex because the episode involves a class of products, not a single device or just one company. There are many companies that manufacture and market metal-on-metal hip prosthetics, but the company most in the spotlight is DePuy Orthopaedics, a division of Johnson & Johnson.

The device’s ball and joint are made of metal and are failing at high rates within a few years instead of lasting 10 to 15 years or more, as artificial joints normally do. The wear of metal parts against each other is generating debris that is damaging tissue and, in some cases, crippling patients. Often times, this leads to metallosis, which can cause pseudo-tumors.

The incidents have set off a financial scramble. The New York Times recently reported that lawsuits and complaints against makers of all-metal replacement hips passed the 5,000 mark. Insurers are alerting patients that they plan to recover their expenses from any settlement money that patients receive. Medicare is also expected to try to recover its costs. However, this occurs in almost any lawsuit where a plaintiff is injured and a third-party has paid medical expenses related to that injury. The problem here is the grand scale of that recovery.

The New York Times reported that until a recent sharp decline, all-metal implants accounted for nearly one-third of the estimated 250,000 hip replacements performed each year in the United States. Most of that decline can be attributed to the recall of the ASR hip, which some estimate to have been implanted in 40,000 patients in the United States. As of October, some 3,500 patients had filed a lawsuit involving that device.

Some 500,000 patients have received an all-metal replacement hip, according to one estimate. A new study found that no new artificial hip or knee introduced during a recent five-year period — implants that included some of the all-metal hips — were more durable than older devices, and 30 percent were worse. The numbers on this are stifling. Does this mean that metal-on-metal technology, whether it involves hips or knees, is a complete failure?

Unfortunately, there is no data on the number of all-metal hips, or any prosthetic hip for that matter, that have failed prematurely in the United States because the outcomes of orthopedic procedures are not formally tracked by our government or private companies. However, by analyzing data from overseas and comparing that data to the estimated numbers in the United States, tens of thousands of patients in our country may have to undergo operations over the next decade to replace the implants. This is the conclusion of Dr. Art Sedrakyan, a researcher at Weill Cornell Medical College of Cornell University, who is studying the hip problem.

DePuy would not comment on how much it had paid in recall-related costs. But a spokeswoman, Mindy Tinsley, said in a statement that DePuy was working with patients and insurers.

Along with the ASR-related cases, DePuy also faces over 560 lawsuits in connection with the all-metal version of another hip model, called the Pinnacle. DePuy has not issued a recall of the Pinnacle because the company says that the model is performing well. Nevertheless, Pinnacles are being replaced and the costs for their replacement are being borne by Medicare, insurers or patients themselves.

If you or a loved one have had hip replacement surgery and have been implanted with a defective DePuy hip, you may be entitled to compensation for medical bills, pain and suffering, lost wages and other injuries. Our firm is currently investigating claims for those people who have been implanted with DePuy hip replacement devices, both ASR and Pinnacle. If you would like a free case evaluation, please contact Booth Samuels toll free at 1-866-515-8880 or at booths@pittmandutton.com.

Venue Selection for Multi-District Litigation

             The use of Multi-District Litigation as an efficient method for handling complex litigation has been around since 1968 and is becoming more and more popular. Everything from the BP oil spill disaster to Chinese drywall to the DePuy hip recall has found its way into a Multi-District Litigation (MDL) setting. 

           

            Congress authorized the formation of an MDL in Title 28 U.S.C. 1407. Subpart (a) states that, “When civil actions involving one or more common questions of fact are pending in different districts, such actions may be transferred to any district for coordinated or consolidated pretrial proceedings.” Typically, litigation that qualifies for an MDL involve complex disputes between many similarly situated plaintiffs located in various districts across the country and common defendants. One of the advantages of an MDL is lower costs for litigation due to the streamlining of discovery and the cutting down of duplicative discovery. Another is that an MDL creates a forum where all parties are under one roof which helps to facilitate settlement. If settlement is not reached by a certain point, the cases filed in the MDL are transferred back to their respective venues for trial.

            An MDL setting is also beneficial to those plaintiffs who have filed similar claims in state court which are not acceptable for transfer to the MDL. Recently, an emphasis has been placed on coordination between the two jurisdictions, allowing for discovery coordination and settlement negotiations. An August 23, 2010 article on www.law.com emphasized this importance by reporting on In re Total Body Formula, an MDL assigned to Judge David Proctor in the Northern District. Judge Wong of DeKalb County Georgia presided over several similar lawsuits which were filed in Georgia state court. Judge Wong noted that District Judge Proctor actively promoted cross-jurisdictional cooperation and invited him to participate in the mass mediation that resulted in a settlement of the cases consolidated in the MDL and some of the cases pending in various state courts. The article noted that the lawyers appreciated the electronic document repository that the federal court created for all pending cases, whether filed in federal court or state court.

            As authorized under Title 28 U.S.C. 1407(d), the MDL panel consists of seven circuit and district judges throughout the country who are appointed by the Chief Justice of the United States Supreme Court. No two judges can be from the same circuit and a concurrence of four members of the panel shall be necessary for any action. Once civil actions are docketed with the MDL panel, the panel is tasked with making the decision of which venue to transfer the MDL. The MDL panel also decides the particular judge who will preside over the MDL in the chosen venue.

            Parties file memorandum briefs with the panel advocating for the transfer of the MDL to certain venues and even certain judges within those venues. Each filing party is also permitted to file a separate statement limited to one page setting forth reasons why oral argument should, or need not, be heard. Requests for hearings are typically granted, but oral argument is brief. A party is generally given no more than two to three minutes to present their oral argument in front of the panel.

            Multiple factors are considered by the panel in deciding which district court to assign an MDL. A list of what appears to be the most important current factors include: (a) significant pretrial progress of an action pending in the transferee district; (b) the docket conditions or resources of the transferee judge or district; (c) the geographic centrality or proximity of the transferee district to the filed actions; (d) the proximity of the transferee forum to relevant documents or potential witnesses; (e) the general experience of the transferee judge; (f) the familiarity of the transferee judge with the factual or legal issues in the MDL due to presiding over a previous action involving similar issues; (g) the accessibility of the transferee district court; and (h) the proximity of the transferee district to the conduct or event at issue.

            The panel has broad discretion in determining the district to which an MDL is transferred. The weight given to each factor depends on the issues and facts of the MDL. However, one of the most important factors appears to be the experience of the transferee judge. In In re Silicone Gel Breast Implants Prods. Liab. Litig., Docket No. MDL-926, the panel transferred pending breast-implant litigation to the Northern District of Alabama and assigned the litigation to Judge Samuel Pointer, a former member of the MDL panel, even though no action was currently pending in that district. The panel stated that they assigned the MDL to Judge Pointer because of his experience and ability to handle such an important and challenging assignment. Another important factor is the docket conditions of the transferee judge and district. In practice, the panel evenly spreads MDL’s throughout the country, thus ensuring that a single district is not strapped unnecessarily with a heavier load of multi-district cases.

            MDL’s can be a great avenue for your client’s case. They can potentially cut down on costs, expenses and time. Although determining where an MDL will be transferred is not an exact science, it is important to understand the factors that go into that decision.

            (portions of this post appeared in an article written by Booth Samuels

             for the Alabama Association for Justice Journal)

DePuy Pinnacle MDL News

Our firm has four of the first Pinnacle cases filed in the DePuy Pinnacle MDL and anticipates filing more in the coming months. We are seeing rapid failures of the device due to high cobalt levels in blood tests. Excessive levels of cobalt in the blood stream is a sign of metallosis, which can cause rashes, soft-tissue damage, peripheral neuropathy and pseudo-tumors.

The DePuy Pinnacle cases have been consolidated in the U.S. District Court for the Northern District of Texas under Judge James E. Kinkeade. Judge Kinkeade is currently presiding over at least one of the cases, and the Panel determined his current caseload will accommodate the litigation. There are approximately 57 DePuy Pinnacle hip lawsuits currently pending in federal courts nationwide and that number is expected to rise over the next few months. 

DePuy is a subsidiary of Johnson & Johnson, one of the largest corporations in the world. DePuy recalled the ASR XL Acetabular hip system last August, after researchers found 13 percent of patients needed a repeat operation to fix problems with the implant. The company took a $280 million charge in the fourth quarter to pay for the recall. The company faces more than 500 lawsuits by patients who had the hip implants, most of which are consolidated in a separate MDL dealing only with ASR hips. There has been no recall of the DePuy Pinnacle hip.

Johnson & Johnson’s DePuy Orthopaedics division, a maker of artificial prosthetics such as hips and knees, has struggled with product recalls and lawsuits over faulty implants lately. It was announced earlier this year that the worldwide president would leave the company in March. The executive, David Floyd, has been president of the unit since 2007. He is leaving to pursue interests outside the company, a spokesman on behalf of the company, Lorie Gawreluk, said, declining to be more specific.

Our firm is currently investigating claims for those people who have been implanted with the DePuy hip replacement devices, both ASR and Pinnacles. If you would like a free case evaluation, please contact Booth Samuels at toll free 1-866-515-8880 or at booths@pittmandutton.com.

DePuy Pinnacle MDL Venue Set

On May 16, the Multi-District Litigation Panel heard oral arguments regarding venue placement for the DePuy Pinnacle MDL in Louisville, KY. All claims filed in federal court against DePuy and its parent company, Johnson & Johnson, are going to be consolidated under one Judge in one venue for purposes of discovery and pre-trial motions.

Both Plaintiffs’ and Defendants’ attorneys were present at the DePuy Pinnacle MDL venue hearing. Although Defense counsel in their filing argued for venue to be placed in the Northern District of Texas (Dallas), they orally argued for the Southern District of Texas (Houston). Of the nine Plaintiffs’ counsel arguing, eight either outright argued for or deferred for the MDL to be placed in Houston. Chris Hellums, of Pittman, Dutton & Hellums, P.C., argued for placement in the Northern District of Alabama (Birmingham). Mr. Hellums cited the District Judiciary’s expertise and familiarity with complex products liability cases and the convenience of the location to all parties as reasons to award the MDL to Birmingham.

Interestingly, the MDL Panel did not send the MDL to either of the two Districts that were orally argued for, but instead sent the DePuy Pinnacle MDL to the Northern District of Texas. The MDL venue Order was filed yesterday.