The Fifth Circuit Court of Appeals recently overturned a $151 million verdict against Appellant, Johnson & Johnson (“J&J”), through its subsidiary DePuy Orthopedics, initially awarded to five plaintiffs who claimed to have suffered damages resulting from J&J’s Pinnacle hip implants (Chistopher v. DePuy Orthopedics, No. 16-11051). The Court of Appeals found that United States District Court Judge Ed Kinkeade erred in allowing the plaintiffs’ lawyer, Mark Lanier (“Lanier”), to present “inflammatory character evidence” about J&J to such an extent as to permit the jury to infer guilt based solely on prior bad acts. This victory is encouraging as it could affect the outcome for thousands of other lawsuits filed against J&J over its Pinnacle devices.
J&J’s Pinnacle hip implant devices depart from traditional prosthetic hips by creating a metal-on-metal connection instead of the typical plastic socket liner, which commonly wears down causing pain and limiting a patient’s mobility. Conversely, the all-metal design is intended to avoid the wearing issue exhibited with the plastic design, especially for younger patients who wanted to resume high levels of physical activity after surgery. However, opponents claim that the Pinnacle device releases dangerous levels of chromium and cobalt in a patient’s blood from metal debris that wears off and migrates through the body.
In this case, Lanier represented five plaintiffs who were purportedly injured from the Pinnacle hip implants. The jury initially awarded plaintiffs $502 million, which was subsequently reduced by Judge Kinkeade to $151 million, based on a Texas law capping punitive damages.
J&J appealed, challenging Judge Kinkeade’s decision to allow Lanier to misdirect the jury with reference to a litany of J&J bad acts which had nothing to do with artificial hips. Further, J&J protested Lanier’s exclamation to the jury that J&J paid kickbacks to “henchman” of former Iraqi dictator Saddam Hussein. By allowing Lanier to take such extreme liberties, J&J argued that the trial judge “failed the critical gate-keeping function” which succeeded only in inflaming the jury’s passions.
The Court of Appeals agreed with J&J and ordered a new trial. The decision was rendered by Judge Jerry Smith, who wrote that “Lanier tainted the result by inviting the jury to infer guilt based on no more than prior bad acts” and “that alone provides grounds for a new trial.”
The Court of Appeals also took issue with Lanier’s representations to the jury that his expert witnesses were unpaid and thus unbiased. After the trial concluded, Lanier paid his experts $65,000.00 and donated $10,000.00 to a charity on behalf of one of the witnesses. The Court of Appeals reasoned that “[l]awyers cannot engage with a favorable expert, pay him ‘for his time,’ then invite him to testify as a purportedly ‘non-retained’ neutral party … that’s deception, plain and simple.”
This case is now headed for a retrial inexplicably with Lanier returning to represent plaintiffs and Judge Kinkaide to once again preside over the proceeding.
The Court of Appeals decision is significant as it could show a shift in the direction favoring J&J in these bellwether trials. Bellwether trials serve as test cases to determine the parties’ legal merits in an attempt to evaluate outcomes in future similarly situated cases. Importantly, bellwether outcomes can have dramatic impact on potential settlement values of future cases. The initial trial verdict in this case is one of four “bellwether” trials already concluded in the massive multidistrict litigation (“MDL”) over purportedly defective Pinnacle devices. Prior to this decision, J&J won only one of four bellwether trials.