The Pinnacle hip implant, last sold by Johnson & Johnson in 2013, still appears to have the full faith of the healthcare giant behind it. After going to trial and losing on multiple occasions, J&J is now questioning the fairness of the latest verdict given by a jury; a verdict that called for $1 billion in punitive damages to be levied against the company.
Company lawyers are arguing that the consolidated nature of the multi-plaintiff litigation may have predisposed the jury to ruling against it. In such a trial, multiple cases are consolidated into a single trial that is then brought before a judge and jury. The same rules apply, however. Both sides are allowed to bring witnesses and give testimony. The jury’s decision applies to all plaintiffs involved in the trial group.
J&J is arguing that the multi-plaintiff approach led to a parade of victims before the jury; something not exactly unexpected when multiple plaintiffs are involved. It also argues that this may have led to an exaggerated notion of the number and extent of the injuries brought about by the Pinnacle system. According to a J&J lawyer, the size of the recent verdicts against the company “perfectly illustrate the distortions and confusion inherent in multi-plaintiff trials and underscore the extent of the legal errors that have been repeated.”
Other experts argue that the multi-plaintiff trial is a long-used and well established tool of the legal system that can simplify the process of clearing out a docket.
The most recent case, as well as a previous Texas case in which a $500 million verdict was reached against J&J were bellwether cases; or cases that are used to determine the likelihood of the success or failure of future cases. With $1.5 billion awarded against it in just two verdicts, it’s easy to see why Johnson & Johnson would be concerned.
J&J plans a vigorous appeal of the billion dollar verdict and will start by asking the judge in the case, U.S. District Court Judge Edward Kinkeade, to either reduce or throw out the jury’s verdict. Should that fail, the company is already planning an appeal to the Fifth U.S. Circuit Court of Appeals in New Orleans, Louisiana.
Kinkeade is the same judge who reduced the previous $500 million verdict to $151 million citing Texas law, so Johnson & Johnson’s hopes for relief may not be completely meritless. The next Pinnacle multi-plaintiff trial is scheduled for September of 2017 and will include a handful of plaintiffs from New York. You can be certain that other plaintiffs with cases pending are watching this trial very closely.