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DePuy Pinnacle 2016 Trial Update 39

DePuy Pinnacle 2016 Trial Update: Your Attorney


Hi, this is Stuart Talley. I am the partner here responsible for the DePuy Pinnacle litigation at our firm. The reason I am doing this video is to answer a question many people have asked us over the years.

We get calls many times from people who have cases on file with other lawyers who are seeking information about the litigation, and about what is going on with their case.  It seems that a common problem is people are not getting information about the case, or about the litigation, from their lawyers. We hear people voicing their concern that they’re not able to contact their lawyer. So, I wanted to give some advice on how to deal with that kind of situation.

The first option you should consider is when you call your attorney’s office it’s important that you ask to speak with the attorney directly. Many times paralegals, assistants, or secretaries may not have the kind of in-depth knowledge that you need about your case or about the litigation; ask to speak directly to your attorney. If he or she is not available, ask for their email address. Send them an email. That’s often a very good way to get in touch with your attorney especially on that’s very busy and is often out of the office.

The other option is asking for your attorney’s cell phone number. At my firm, we give all our clients my personal cell phone number and they can reach me when I am traveling or anytime. If you ask for your attorney’s cell phone number at the beginning of the case, they should give it to you. They should be accessible.

If phone calls and emails don’t work, you should send a letter to your attorney explaining that you are not happy with the communication, with the information that’s provided, and you would like more regular updates. Letters almost always get responded to.

Now, if you’ve tried the former suggestions and you’re still not getting a response or getting adequate information, the last resort is that you are always free to fire your attorney. The law in almost every state gives clients the absolute right to change attorneys at any time. If you are not getting information from your attorney and they’re not responding to your inquiries adequately, you can send them a letter indicating you are going to retain a new attorney. Now, almost all states have laws that give clients the absolute right to change attorneys.

Typically, the way it works with fees is that, if you’re on a contingency fee agreement, the new attorney will almost always match the fee agreement of your previous attorney. So, if your previous attorney was charging 40%, the new attorney will charge 40%. This does not mean you have to pay 80%. The laws in almost every state are that if someone changes attorneys the client will not have to pay more in fees. So, the fee will remain the same. The fee will then be divided among your old attorney and new attorney. It will be divided based on the amount of work that each attorney contributed to your case.

If you change attorneys early on in the litigation, and the new attorney takes your case, and works it up and gets it ready for trial (or settlement), that attorney will usually get most of the 40% fee. Conversely, if you change attorneys at the last minute, right before you go to trial, your previous attorney will get most of the fee. It is important to know it will not cost you anything extra. As the client, you have a right to change attorneys. Even if the attorney puts something in their contract that says, “you’re going to have to pay me a fee even if you fire me”, this is not valid to make you pay more than the agreed-upon percentage.

This is my advice to people who call me and are concerned about their attorneys not responding to them. If you have any other questions or concerns, or you want some more advice on what you can do, feel free to give us a call.

Stay tuned. Opening statements started this morning. We will have more updates soon.

DePuy Pinnacle 2016 Trial Update 21

Hi, this is Stuart Talley here to provide another update on the ongoing DePuy Pinnacle hip trial occurring in Dallas, Texas. Yesterday, a prospective jury was brought in. Today, there is jury selection.

Yesterday, we were also met with complaints and filings that Johnson & Johnson (J&J) made with the Court of Appeals (COA) to try and get the trial derailed. The first motion they filed with the appellate court was one again objecting to the consolidation of six cases for trial. If you have been watching my videos, you will know that this trial is for six individual plaintiffs all of whom live in California. It will be tried in front of one jury. The defendants are complaining and asserting that this is not fair.

The second motion they filed with the appellate court was a last second motion to contest personal jurisdiction. They are arguing that the court in Texas does not have jurisdiction to even hear the trial. This is a new argument that has not been made previously. I think it is a long shot of having any chance with the appellate court.

So, those were the motions that J&J filed with the appellate court. I do not expect those to go anywhere. The judge is moving forward with the trial. He entered an order yesterday indicating that each side in this trial will only have 70 hours to put on their case. This is an effort to streamline the process to get both the plaintiffs and defendants to determine exactly what types of evidence they want to get into the case, in front of the jury, and to streamline the process so future trials go quicker.

70 hours is still a significant period of time. With 70 hours of testimony and cross examination, you are looking at about 3 weeks of trial. 3 weeks on each side is a 6 week trial. It is substantially shorter than the previous trials which lasted months. But it is still a substantial effort to put on these cases.
The judge allowed live testimony by satellite broadcast which is helpful to the plaintiffs. So, there are some witnesses who live in other states; a lot of them live in California. Their testimony will be presented by Skype, or whichever software. But there will be live video testimony in the court with direct and cross examination of the witness in some other location. This is helpful for the plaintiffs because many witnesses are out of state.

The trial is moving forward. Jury selection is today. Today, they will actually pick the jury. Stay tuned, we will keep you updated. Hopefully, we will have opening arguments tomorrow. I will provide an update on what occurs.

If you have a DePuy Pinnacle hip, and have any questions, you can always call us or fill out our online form.

DePuy Pinnacle 2016 Trial Update 20

Hi, this is Stuart Talley here to provide another update on the ongoing DePuy Pinnacle hip trial. If you have been following our videos, you know that there is an upcoming trial starting on September 26 for a group of six California plaintiffs.

Ever since the trial date was set by the trial court, the defendants have gone to extraordinary lengths to try and get the trial date pushed off. They have made arguments before the trial court that it is impossible for them to conduct the amount of discovery necessary for them to get the cases ready for trial between now and the end of September. The trial court denied those requests to get the trial date moved.

We had an order that came out on September 1 where the trial court indicated the trial date would not be moved. It was indicated that the defendants had waited too long to begin seeking medical records and discovery from the six plaintiffs selected for that trial. As a result, if there was any prejudice to them it was caused by their own delay in action.

The defendants have now gone to the Fifth Circuit Court of Appeals to request that they move the trial date. We do not yet have a decision from the Fifth Circuit. But what’s important to know regarding the scheduling of trials, coordinating discovery, the trial court has a huge amount of discretion. It would be highly unusual for an appellate court to overturn the decision of a trial court with respect to scheduling of trials, discovery and depositions.

I do not expect that this trial is going to be moved. The fact that the defendant keeps filing motion after motion to get it delay, stayed or moved, is a good sign for the plaintiffs. It shows the defendants are very concerned with the next group of plaintiffs.

If you have a DePuy Pinnacle or questions about the litigation, please feel free to give us a call.

DePuy Pinnacle 2016 Trial Update 15: June 24


Hi, this is Stuart Talley. I am doing this video today to provide an update on the ongoing DePuy Pinnacle metal-on-metal hip litigation. As you may know, there was a trial that went to verdict a few months ago. The verdict was for the plaintiffs for several hundred million dollars.

The judge has ordered a new group of cases to go to trial in September this year. The new group will be seven individual plaintiffs all from California. Recently, we received word that DePuy filed a motion with the Fifth Circuit Court of Appeals asking that the next trial not move forward as scheduled. They are asking for a stay of the litigation until their appeal on the last verdict is decided by the court. The argument they are making is that if there were errors committed in that last trial they should be resolved before we go through the time and expense of the next trial.

This is a judicial economy argument. It’s very unlikely that the Fifth Circuit Court of Appeals will grant the motion. There are several thousand cases pending. If the litigation comes to a halt each time there is verdict on appeal, the cases will never resolve. It could be years and years.

At this point, we are still waiting for a decision from the Fifth Circuit Court of Appeals (we anticipate approximately two months). When we get a decision, we will provide another video giving an update on that development.

How are cases selected for DePuy Pinnacle Bellwether trials?

Hi, this is Stuart Talley. I’m the attorney responsible for the DePuy Pinnacle metal-on-metal hip cases. The reason I’m doing this video today is a result of phone calls we’ve received from people asking about the upcoming bellwether trials occurring in September this year. As you may know, there are seven cases that were selected to go to trial. Several months ago we had a verdict on five cases.

People are asking, “How are these cases selected for trial?” It is a complicated process. Typically, what will happen is that the judge will tell the parties to sit down and come up with a group of cases for trial. Normally, the plaintiffs group will select cases and the defendants will select cases. As a strategy, the defense will try and pick complicated cases that are difficult to prove. The plaintiffs want cases that are easy to prove, where there are not a lot of complications or difficulty proving that the hip caused damage. The court wants “representative cases”, run-of-the-mill cases. The idea is that if you get verdicts in several run-of-the-mill cases then the parties should be able to sit down and figure out what all of the other cases should settle for.  So, that’s how the process works.

The cases selected by the plaintiffs were vetted extensively. You want plaintiffs that are likeable, that have doctors who are not on DePuy’s payroll, and you want plaintiffs with damages that are similar (representative) to the damages other plaintiffs are experiencing. This is how cases are generally picked. Many of our clients have asked, “How do I get my case set for trial?” It is very difficult to find one case and say I’m going to push this one to the front of the line because there are about 7,000-8,000 people in that line. It’s not an easy process.

We need to get verdicts in these bellwether cases. Hopefully after we get enough verdicts, the defendants will eventually come around and agree to a global settlement program for everyone.

If you have a DePuy Pinnacle, and have any questions, feel free to call us or submit an online form. We are happy to answer questions about the litigation and upcoming trial.

DePuy Pinnacle 2016 Trial Update 14

Hi, Stuart Talley here to provide an update on the DePuy Pinnacle metal-on-metal hip litigation. We had a significant development yesterday. The Judge issued an order setting a trial date for the next round of trials. Specifically, he entered an order that the next group of trials is going to occur on September 6, 2016. It’s going to be seven individual plaintiffs and their claims are going to be decided in one trial.

All of these plaintiffs reside in California. So, California law is going to apply in the case. The last case that went to trial, where we had a verdict a few months ago, all of those individuals were Texas residents. So, Texas law applied. The big difference between California law and Texas law has to do with punitive damages, intended to punish the defendant to deter bad conduct. In Texas, punitive damages are capped at a certain amount and there is a formula to cap them. The $380 million punitive damages are probably going to be substantially reduced from the Texas trial. California law has no caps and there is an unlimited amount of punitive damages that a jury could award. The only limit would be the Due Process Clause of the Constitution.

This is going to be a different case. The law is going to be slightly different but the big matter is that there are not going to be any caps in this case. The fact that this trial is going forward on September 6 came as a surprise to a lot of us. Many times judges will say that they want a trial date but then for various reasons it gets pushed off, sometimes for over a year or more. I don’t get the impression this judge is going to push the trial date off. It is going to happen on September 6 and there will be seven plaintiffs.

Of other significance, the Judge has not ruled on the post-trial motions that were filed by DePuy. After the last trial, DePuy filed motions to overturn the verdict to reduce the award of the jurors. They also filed motions for new trial. This judge has not ruled on any of these motions yet he still set a date for the next trial. This is a good indication that he will not undo anything that happened in the previous trial.

Stay tuned. There will be a lot of pre-trial motions that will be filed, no doubt by DePuy to try and get various claims dismissed. We will provide an update when we get the motions and we expect that this trial will go forward on September 6 as planned. We will continue providing updates once this new trial begins.

If you have any questions or concerns, feel free to give us a call. You can reach us at the phone number on the screen, or fill out one of our online forms, and an attorney will call you right back.

DePuy Pinnacle 2016 Trial Update 12

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.

J&J Defense and DePuy Pinnacle Trial Verdict

John Beisner, an attorney for Johnson & Johnson’s DePuy, stated he expects the DePuy Pinnacle trial verdict to be a “pyrrhic victory for plaintiffs’ counsel” .

The J&J DePuy attorney’s position that this is a “pyrrhic victory” and that there are strong grounds for appeal is simply his opinion.  We know from DePuy’s prior history that they were going to appeal any verdict in the plaintiffs’ favor.  Whether or not they have strong grounds to have this verdict reversed or the judgment reduced will be a matter for the plaintiffs’ appellate team to work through.

As for the statutory cap, yes the punitive damage award will be reduced pursuant to a Texas law that limits the amount of punitive damages that can be recovered against a defendant.  The law in Texas is:
 
LIMITATION ON AMOUNT OF RECOVERY. (a) In an action in which a claimant seeks recovery of damages, the trier of fact shall determine the amount of economic damages separately from the amount of other compensatory damages. (b) Exemplary damages awarded against a defendant may not exceed an amount equal to the greater of: (1)(A) two times the amount of economic damages; plus (B) an amount equal to any noneconomic damages found by the jury, not to exceed $750,000; or (2) $200,000. (Texas Civil Practice & Remedies Code 41.008)

So, for example, in the DePuy Pinnacle trial, most plaintiffs received a compensatory damage award of about $27 million.  If the economic damages were $1 million and the non-economic damages were $26 million, the punitive damages should be capped at $2.75 million (i.e. two times economic damages plus non-economic damages up to $750,000).

On the other extreme, if the economic damages were $26 million and the non-economic damages were only $1 million, the punitive damages should be capped at $52,750,000.

This is similar to the medical malpractice MICRA cap in California – i.e., even where a California jury awards a plaintiff many millions of dollars in pain and suffering damages against a negligent doctor (because the jury is not told about the cap), the pain and suffering award gets reduced to a mere $250,000.

Since we don’t have the information yet as to how much the Texas jury awarded each of the 5 plaintiffs in economic damages, we don’t know by how much the $360 million punitive damage award will be reduced.

DePuy Pinnacle 2016 Trial Update 11


Hi, I’m Stuart Talley. I am a partner here at Kershaw, Cook & Talley responsible for the DePuy Pinnacle metal on metal hip cases at our firm. I wanted to provide an update on the current status of the litigation. We just had a big verdict in the second DePuy Pinnacle hip trial. Many people have been calling us with lots of questions about how this verdict will impact their personal case.

There are a couple of matters that need to be addressed. First, the verdict in this case does not mean DePuy will automatically settle these cases, or propose a settlement to everybody who has a case. However, the verdict puts pressure on DePuy to settle. Unfortunately, by no means is DePuy required to settle. It is entirely DePuy’s decision whether or not they want to settle. Until they offer a global settlement, we are stuck in this phase where the plaintiffs will keep trying cases.

The Judge asked for another group of 5 new cases that will go to trial before the end of this year. Many people asked, “Will the new jury be aware of the verdict from this latest trial?” The answer is no, they will not know about the latest verdict. They will not even know there were 5 other cases that went to trial. Each case has to be independently evaluated by the jury. Many people have also asked, “How do I get my case set for trial?” This is very difficult. There are 8,000 cases that are currently on file. The plaintiffs want very good, easy, simple, and straightforward cases to go to trial first. The defendants are looking for cases with lots of weaknesses. The Judge wants run of the mill cases. That is why they are called bellwether cases; they set potential values on other cases.

There is a lot of jockeying that goes on with respect to what cases go to trial and in what order. It is very difficult for one person to say, “I’d like my case to go to trial next” because there are 8,000 other people who also have that same desire. Unfortunately, people have to be patient. It is tough because many individuals are older, experiencing intense pain and a diminished quality of life. People cannot afford to wait another 5 to 10 years for some kind of resolution. Yet we cannot force DePuy to settle anyone’s case. All we can do is keep hitting them with verdicts, and hopefully they will come around at some point.

If you have a DePuy Pinnacle, and you have not filed a lawsuit, or you have any questions about the process and how it works, feel free to give us a call. You can reach us at the phone number on the screen, or visit our website and fill out one of the online forms, and we will get back to you right away. If you have a lawyer, I would highly recommend following up with them. Your attorney should answer your questions. But if you still have any questions, you can always call us.

We hope you are doing well.

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