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DePuy Pinnacle 2016 Trial Update 12

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Hi, this is Stuart Talley here to do another update on DePuy Pinnacle metal-on-metal hip trial. As many of you know, there was a verdict in the case a few weeks ago in favor of the five plaintiffs that had their case tried to a single jury. From that point, DePuy and Johnson and Johnson have released statements to the media about their chances on appeal. There is a lot of discussion about the appeal, and whether DePuy and Johnson and Johnson will win. The reason I wanted to do this video was to provide an update and analysis on what the chances are that DePuy and Johnson and Johnson will win on appeal.

It’s very difficult to say what an appellate court will do. I can tell you that the 5th Circuit Court of Appeals, which is where the appeal will be heard in Texas, is notoriously a very conservative jurisdiction. It’s not a very good appellate court for plaintiff’s attorneys or plaintiffs. However, that being said, there are a couple of important things to remember. First, the trial court Judge who decided this case is a well-respected conservative Judge. He was a Judge appointed by George W. Bush and he’s been on the bench for a long time.

Second, one of the arguments Johnson and Johnson makes, and you see this repeated in the media, is  about how unfair it was that five plaintiffs got to try their cases in a single trial. There is a lot of authority where Judges have the ability to consolidate cases for trial for judicial economy; meaning if it’s quicker, cheaper and easier for the judicial system to try groups of plaintiffs together in one trial, it is permitted. If you look at the status of the litigation and what would happen if you had individual trials for all seven thousand people, it would take a hundred and thirty years to try these cases. I think the argument that DePuy and Johnson and Johnson are likely to make at the appellate court is probably not going to go very far. An appellate court that determines multi-plaintiff trials are impermissible would basically open the door for unlimited, inefficient litigation that could last years and years in cases like this.

The other information Johnson and Johnson and DePuy have disseminated into the media is the size of the punitive damage award. First of all, under Texas law, those punitive damages will be reduced. The amount and extent of reduction is unclear at the moment but it will be substantially reduced. You have to assess the relationship of the actual damages to the punitive damages. This is the standard the court will use to determine if the punitive damages were too much. In this case, you have a situation where the punitive damages were three times the amount of the compensatory damages. This is not a big number. The US Supreme Court uses “ten times” as a benchmark- where the punitive damages award that is more than ten times is considered too high. The amount of the punitive damage award is only 0.3% of Johnson and Johnson’s net worth. It’s not one of these runaway Juries with a crazy punitive damage award that will far exceed what is rational, so to speak.

Now, a question people have asked is, “Will there be a good argument that the Jury was confused or misled in the litigation?” because there were so many plaintiffs being tried and there was a lot of evidence introduced. It is important to note that this is an intelligent Jury. There were several professionals and  PhD’s,  people on this Jury that are not going to be confused, they are not going to be bamboozled. This was a Jury that the defendants probably would like before the trial started.

It is difficult to say what will happen next. There were a lot of controversial rulings that were made during the trial, and it is difficult to know how an appellate court will decide. But I think that what people are reading about Johnson and Johnson’s chances of success on appeal may be a little over stated by Johnson and Johnson.

​The next thing that will happen is Johnson and Johnson will file motions for new trial, probably another motion for mistrial (they filed seven or eight of those during trial), and they are going to be filing motions to have the Jury verdict overturned.  All of these motions go to the trial court. It is very unlikely these motions will go anywhere. The real decisions will be made at the appellate court.

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