John Beisner, an attorney for DePuy, stated he expects the verdict to be a "pyrrhic victory for plaintiffs' counsel" .
The 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 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.