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DePuy Pinnacle 2016 Trial Update 39

DePuy Pinnacle 2016 Trial Update 25

Hi, Stuart Talley here to do an update on the DePuy Pinnacle metal-on-metal hip trial that is currently ongoing in Dallas, Texas. First, I’d like to let everyone know that we try to do these updates as often as we can. I wish we could do them every day but we have lots of other stuff going on around here. We have other cases, clients and things that need to get done. So, we try to do them as often as we can and we will try to get more videos on the website. But I wanted to let everyone know.

Today, I want to talk about testimony that was received at trial from an expert witness that was put on by the plaintiffs. His name is Albert Bernstein and he is a  bio-mechanical engineer. He has 30 years of experience designing and inventing prosthetic devices and surgical tools. He spoke about the process of developing medical devices and what a prudent manufacturer is supposed to do when they develop those devices. He testified that a prudent manufacturer will test the device in human beings before they release it to the public. Before the Pinnacle was released, it was not tested in individuals.

He also indicated that when a manufacturer discovers problems with the medical device that they have an obligation to disclose those problems to doctors as soon as they become aware of them. This is sort of a common sense opinion and I think most people agree. Now, he also went through the “end game memo” that has come up repeatedly in the case. This memo was drafted by DePuy executives and engineers back in the 90s before they designed metal-on-metal hips. The “end game memo” discusses the problems with metal on metal hips back in the 70s. The person who drafted this memo thought that DePuy focus on metal-on-plastic hips and making them better instead of going back to a metal-on-metal design.  He discussed language in the memo concerning metal and plastic particles.

He states even though plastic particles can cause osteolysis (destruction of bone tissue), the problem with metal particles is different, and that metal particles can cause more problems in the soft tissue than plastic particles. He described that when you have wear on a prosthetic hip, specifically a metal-on-plastic hip, there will be a certain volume of plastic that will wear on the device and enter the hip joint. It is a very small amount but there is a volume that is measurable. However, when you take the same volume of metal that enters the hip joint you end up with 1.23×10^15 more particles with metal than plastic, an enormous number. This means that when you have plastic wear you will have a few, large particles but when you have metal wear you will have many more, smaller particles. He gave an example with two jars in the courtroom: one was filled with marbles and the other with sand. This demonstrated the difference between plastic wear and metal wear. He also indicated that metal wear is more unpredictable, that DePuy’s testing showed that it was unpredictable, and that the metal particles cause more problems in the hip joint than the plastic particles because the metal particles can enter cells and destroy them.

He also mentioned the defense’s position that back when they were developing metal-on-metal hips there was a debate in the orthopedic community regarding how to eliminate the problem of plastic wear and osteolysis. This is supposedly the reason why DePuy went with metal-on-metal. Dr. Bernstein refuted this contention. He said at the time the Pinnacle was released there was no debate in the orthopedic community. He states the plastic they were using at the time were advanced and they had essentially solved the problem of osteolysis. He pointed to various marketing brochures released by DePuy promoting their metal-on-plastic hips. In these marketing brochures, which were released in 2000, DePuy announced they solved the problem of osteolysis. Dr. Bernstein’s opinion was that the problem of plastic wear was essentially solved but DePuy decided to go with metal-on-metal.

He also discussed specific patients. Defense took the position that the reason two of the patients’ hips had failed was because the cups were put in at an extreme angle. Dr. Bernstein explained that when you are a surgeon and you are putting a prosthetic hip in that you want to put the cup in at the same angle that the natural hip socket was before the surgery. The reason you want to do this is that the muscles, tendons and tissues that surround the hip are designed to deal with a hip at a certain angle. He talked about how 45 degrees would be ideal but not everyone’s natural hip joint is at 45 degrees. There is a variance in the population and as a result hip manufacturers need to design hips that are variable and can match the patients.  If they can’t, they need to tell the doctors. He looked at two of the patients’ x-rays and the angles the cups were put in, and he said they were put in at the appropriate angles for that patient. So, it may not have been 45 degrees but if they put it in at 45 degrees it may not have worked. His opinion was that the hips were put in at the right angles, and DePuy, with respect to the metal-on-metal hips, were negligent with the design of the hip and never should have gone with metal-on-metal because that caused the patients’ problems not the angles the cup was put in.

There will be more testimony. The defense will cross examine Dr. Bernstein. We will provide another update when we get this testimony.

DePuy Pinnacle 2016 Trial Update 22


Hi, Stuart Talley here to do a quick update on the DePuy Pinnacle trial.  We received word from the Fifth Circuit Court of Appeals (COA)  on various petitions that DePuy had filed  in an effort to up-end  the current trial that is set to start opening statements on Monday, October  3rd.

The COA rejected all of DePuy’s arguments and efforts to basically  stay the litigation  pending their appeals.  DePuy made arguments that there was no jurisdiction in the Texas court for people that resided in California. They also made some arguments that consolidating the case  was unfair and the speed at which  the trial was going to commence  was  unfair; that they didn’t have enough time to  get ready. All these  arguments  were denied by the COA and opening statements will begin  as scheduled.

This is good news for the plaintiffs.  Stay tuned. We will provide regular updates  on how the trial progresses.

The case is In re: DePuy Orthopaedics Incorporated; DePuy Products Incorporated; DePuy International Limited; Johnson & Johnson Services Incorporated; Johnson & Johnson, Incorporated, case number 16-10845 in the United States Court of Appeals For The Fifth Circuit.

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 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.

DePuy Pinnacle Trial Verdict and Your Case


Hi, I  am Stuart Talley.  I am  the partner responsible for the DePuy Pinnacle hip litigation.  I am doing this video today to provide an update  after receiving  lots of calls from people asking, “What does the verdict  in the DePuy Pinnacle Trial impact our claim?”

This  verdict puts  a lot of pressure on DePuy  and Johnson & Johnson to settle the pending cases  in the MDL.  There are approximately  8,000 people who have lawsuits on file. Some of these individuals have undergone revision surgery, and others have not.

In the past,  DePuy  took the position of  settling cases for people who have had revision surgery such as with the DePuy ASR.   DePuy’s mindset with the  Pinnacle is that they would never settle a case.  But this verdict  really puts pressure on them to take action.

I assume this verdict will  renew  settlement discussions.  I don’t think there have been  settlement  discussions at this point. Hopefully, this will bring DePuy to the table  to discuss possible resolutions  for these cases.  One thing to consider,  even if DePuy thinks they can win  95%  of these cases,  5 out  of 100  cases with  a $500  million dollar  verdict  could bankrupt this company.  So,  the  problem with this situation from DePuy’s standpoint is there are many cases they need to deal with.

If you have a  Pinnacle hip, I would  suggest you  give us a call especially if you do not have a case on file. It’s important to have a case on file to protect your legal rights  and to ensure you can participate in a settlement, should one occur down the road.

Breaking News: Jury Awards Plaintiffs $500 Million in DePuy Pinnacle Trial


Hi, this is Stuart Talley.  We have some  breaking news about the DePuy Pinnacle metal-on-metal hip trial currently pending in Dallas, Texas.  We received word the jury has come back with  probably the biggest verdict  in any hip case to date.

The verdict came back at $498  million dollars against Johnson & Johnson and DePuy.  This case was brought on behalf of  five individuals . If you look at the verdict, it was $498 million and approximately $360 million of that was punitive damages, and the rest was compensatory damages for each of the five plaintiffs.  The average compensatory verdict for these five plaintiffs was about $27 million dollars.

With respect to similar cases, that have gone to trial, this is by far the largest  compensatory verdict.  It’s also the largest punitive damage award to date.  Many attorneys, including myself, who have been watching this trial  are not really surprised by this outcome. The trial went very well for the plaintiffs.

The evidence that came out  was shocking  in regards to  what DePuy did with the Pinnacle hip. There were lots of emails and internal documents showing DePuy actively tried to conceal problems  with these hips from doctors . They engaged in nefarious  conduct  in terms of the marketing of  this product. There were allegations that clinical trials  were falsified, and advertising was based on these falsified clinical trials.  A  lot of doctors were bribed and given money to  use this hip and tell other doctors it was a great  deal.  Some doctors received millions of dollars. One of the main witnesses received  for the defense received over $7.5 million dollars in royalties from DePuy.

We have a verdict which is a positive development in the case  for plaintiffs.  Many have asked us, “What happens next?” I can tell you that DePuy has said they would never settle  these cases. This was the position they took  at the very beginning. They took the position that this hip was different than  their other metal-on-metal hip, the DePuy ASR.  The problem with not wanting to settle cases is that if you keeping getting hit with a $500 million dollar verdict, you cannot keep that up.  Johnson & Johnson has to  face that not only was there a $500 million dollar verdict in this case,  but also that there are  8,000 more cases. If DePuy keeps trying cases, and even if they win  90%  of those cases,  if they get hit with a $500 million dollar verdict  (every  one  of a  hundred  cases), that’s a large problem for the company.

So, this verdict puts a lot of pressure on DePuy : shareholders will  start to ask questions and they are under pressure to  resolve this.  The one concern I have is that Johnson & Johnson may have some hope in appealing this verdict and they will certainly appeal it. There were some controversial rulings by Judge Kinkeade, and they are thinking they can get this verdict overturned.  However, the issue for DePuy is that this  is a two year deal. It takes at least  two years for an appeals process of this  magnitude.  In the meantime, there are  upcoming trials.  Judge Kinkeade has indicated  that he wants  another five cases lined up for the Fall.  This puts a lot of pressure on DePuy to come up with a reasonable solution to this problem.

The other problem  is the defense costs.  When you defend one of these cases,  even if  Johnson & Johnson wins one of these  trials,  they are spending millions of dollars on each trial.  They spent millions of dollars on experts for this first trial. They have a team  of lawyers who are billing them $600-$1000 an hour  in the courtroom  everyday for  10 weeks. Those costs add up.

This verdict is very good for the plaintiffs .  It definitely is encouraging and hopefully will bring DePuy and Johnson & Johnson  to the table  to compensate people with  legitimate  claims. If you have a DePuy Pinnacle hip, and have questions about the trial and verdict, feel free to give us a call toll free at 888-997-5170 and we will get back to you immediately.  Thank you.

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