What began as a $500 million verdict in five plaintiffs’ favors in 2016 and was later cut to $151 million has now been reduced to nothing. At the same time, Johnson & Johnson – once on the losing side of a significant decision in a bellwether trial over its DePuy division’s Pinnacle hip implants – can take a case out of the “loss” column for now.
The verdict came as the result of one of several bellwether trials regarding the Pinnacle hip implant tried before U.S. District Judge Edward Kinkeade in recent years. And, while Judge Kinkeade had previously cut amounts awarded by juries in these trials based on provisions in Texas law, he largely left the verdicts themselves untouched. This is to say that while the dollar amounts awarded to victims may have run afoul of what could be allowed, the blame itself still stood with DePuy. Juries found that Johnson & Johnson Pinnacle hip implants are defective in their design and the judge did not make any rulings disputing that as fact.
A three-judge appellate panel of the 5th U.S. Circuit Court of Appeals has, however, overturned the $151 million ruling and called for an entirely new trial based on “deceptions” perpetrated by the plaintiffs’ lawyer and Judge Kinkeade’s evidentiary rulings.
Writing on behalf of the panel, U.S. Circuit Judge Jerry Smith primarily cited “inflammatory character evidence” that Judge Kinkeade allowed the plaintiffs’ lawyer to present. Among the “most problematic” of these, the judge wrote, was the inclusion of the company’s 2011 settlement agreement paid to resolve allegations of foreign bribery – particularly payments Johnson & Johnson allegedly made to “henchmen” of former Iraqi dictator Saddam Hussein.
In addition, Judge Smith asserted that two of the five plaintiffs never presented evidence that their treating physicians ever actually saw DePuy’s warnings about the implants, and therefore could not possibly have come to a judgement over the adequacy or inadequacy of those warnings.
The plaintiffs will not seek an appeal of the appellate court’s decision and are instead preparing for a retrial – a decision that Johnson & Johnson’s attorneys appear to be welcoming. After all, when some 10,000 hip implant lawsuits are lined up and all of them claim that one of your products introduced significant pain and suffering into their lives, what’s one more?
While the inclusion of Johnson & Johnson’s payoffs to foreign governments was deemed to be inappropriate in the case, the behavior does not appear to be out of character for the corporation or those with whom it associates itself. The FBI has become involved in the DePuy matter over claims of witness tampering. Judge Kinkeade requested FBI and U.S. Attorney’s Office involvement after a doctor serving as an expert witness in the case submitted a sworn affidavit claiming that his medical practice had been threatened by a DePuy sales representative while he was scrubbing in for surgery. It is not the first time such behavior has been observed, as the plaintiffs’ lawyer claims to have personally “seen DePuy work to destroy the practices of witnesses who dare testify against them.”