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2016 DePuy Pinnacle Trial Update 10

Hi, this is Stuart Talley here with another update on the DePuy Pinnacle hip trial currently ongoing in Dallas, Texas. We’ve almost reached the end of the road; it’s been 10 weeks of testimony, more than 30 days of actual court time, and the parties today gave closing arguments to wrap up the case. Both the plaintiffs and the defendants gave closing arguments. Now the jury has the case and we’ll see how long they deliberate and come up with a decision. The closing in this case was somewhat unique. The judge ordered tight time constraints on the closing argument. Each side had an hour and 45 minutes to tell their story after 10 weeks of trial arguments. The lawyers are quick and succinct with their arguments.

The plaintiffs’ attorney basically continued on a theme that they’ve had throughout the case which is that DePuy really rushed this product on the market; the only reason they came out with a metal-on-metal hip was because they knew their competition would release something and they wanted to beat them to the punch. There is a document the plaintiffs point to repeatedly indicating that it was important for DePuy to beat the competition to the punch with the metal-on-metal hip. So, they put it on the market without adequate testing and without even knowing what metal ions could do to the tissue. This was admitted at the trial.

The second theme that they had and that they expanded upon was that this was an experiment gone badly. Again, DePuy didn’t know the impact metal ions would have on tissue. They knew their metal-on-metal hips in the past had failed but they released it anyway and they released it, like I said, to beat the competition to the punch.

Another theme that was pushed heavily by the plaintiffs in the case was that DePuy knew there were problems with this hip and knew it was causing problems in patients. Specifically, they knew it was causing metallosis and tissue damage. But they did everything they could to hide that from the medical community. The plaintiffs’ attorney spoke about the bogus studies that were done, such as the pin study. The studies had many irregularities and were deceptive. They talked about the advertising were DePuy told doctors that the hip was successful in 99.9% of the patients that received it. I think the plaintiffs did a good job of showing that wasn’t true. They talked about the doctors who received millions of dollars in consulting and royalty agreements. They were supposedly “design” surgeons but it turned out that these doctors were really receiving money to promote and use the hip. They had agreements that required them to use the hip and they were paid millions. Some of the surgeons made over 40 million dollars “consulting” for DePuy.

With respect to damages, there are five plaintiffs in this case. The closing argument was interesting because the plaintiffs’ attorney did not ask for a specific amount of money for any plaintiff. They left it up to the jury to decide how much each plaintiff should get. The types of damages the plaintiffs can get in these cases are medical bills, and future medical bills. But the real big number is for their pain and suffering. All the plaintiffs had their lives substantially impacted as a result of these hips, and the revision surgeries and all the problems they suffered. Many are unable to enjoy activities they were able to do and cannot enjoy life the way they used to. Many are in constant pain for the rest of their lives. The only linchpin the plaintiffs’ attorney gave to the jury was an effective argument. They argued that when the jury goes back to deliberate, they need to figure out how long each one of these plaintiffs is expected to live. They have a chart to calculate. The argument was made that the jury should look at pain and suffering that people will have to experience on not just a yearly basis but a daily basis. What is fair compensation to be in pain for a day? What’s fair compensation to be in pain for an hour? The linchpin and guidance for the jury was an argument that DePuy’s experts were paid $1,000 an hour to testify, and so the plaintiffs’ attorney argued that whatever you give the plaintiffs, on a daily basis, should be more than what DePuy’s experts make in an hour.

There was also an argument made that punitive damages should be awarded. Punitive damages are the amount a jury can award against a corporate defendant to punish them. The idea behind punitive damages is that if you award a large amount the company will stop engaging in the conduct in the future. Punitive damages are only available if you can show that the company committed fraud or knowingly hurt people with a reckless disregard for their safety. With respect to Johnson and Johnson, and DePuy, the plaintiffs’ attorney explained that the company is worth 69 billion dollars. This enormous number is very difficult for people to wrap their head around. So, the jury was told to consider what would happened if you were dealing with someone who had $69,000 and you were trying to punish that person. If you awarded $100, even $200, in punitive damages against that person that really wouldn’t be much of a punishment. When you convert that into Johnson and Johnson’s realm, and their 69 billion dollars, which comes out to 200 million dollars. 200 million dollars for Johnson and Johnson is analogous to the $200 for someone who has $69,000. That’s all that was said and I think that the idea behind the argument was that there is an effort to get the jury to see that something in the hundred million dollar range is not sufficient to punish DePuy. It must be an amount in the billion dollar range. We will see whether or not the jury will award punitive damages. I think a strong case was made for it.

The defense made a closing argument as well. They argued that DePuy is a really good company, inventing medical devices that have helped many people over the years. The stated the plaintiffs went through 90 million pages of documents, and they found bad emails and incriminating evidence but that you should look at the overall context of this company. They argued they were trying to help people with the metal-on-metal hip. The real focus on the defense argument in this case is causation. The real question is, even if you assume this hip is defective and shedding metal particles, is that why each of these plaintiffs needed a revision surgery? Is that why they had problems? For each plaintiff, they went through reasons why they think the person’s problems with their hip was not related to metal particles. For one plaintiff, they said the hip was not stable, it was loose, and that is why there was metal wear debris. That’s the only plaintiff they admit that metal wear debris has anything to do with their problems. But because the hip was unstable it was the surgeon’s fault, not theirs. The second plaintiff they said had sarcoidosis, an inflammatory disease, and that is why they had problems with their hip. They said the third plaintiff had a hypersensitivity reaction to metal particles. In essence, they argued the person had an allergic reaction to metal and that’s why they had problems. They stated the last two plaintiffs probably did not need revision surgery, their problems had no relation at all to metal particles, and their surgeons performed an unnecessary revision surgery. After the defense gave their closing statement, the plaintiffs had a chance to do a rebuttal closing.

On rebuttal, the argument was effectively made that the experts hired by DePuy were Jukebox witnesses; these are witnesses where you put the money in and they play what you want to hear. In this case, it is important to note that all the treating surgeons said that the person was having a reaction to metal wear debris and that they need the revision surgery because of problems with the hip. There was also a discussion of what the defect is. During the defendant’s closing argument, they argued the hip was not defective. This was undermined by the plaintiffs’ attorney who explained that the problem with this hip was that it’s metal-on-metal. You should never have a situation where two pieces of metal are rubbing against each other inside the human body, which would seem to be common sense. The evidence that it is defective is based on the fact they no longer sell it. The Food and Drug administration (FDA) has specifically said these products cannot be sold unless you do clinical trials before it’s released.

At the end of the day, the plaintiffs came out with a good argument in closing. The documents discovered are bad for DePuy, and the amount of money paid to experts and consultants are really going to impact this jury. However, you never know what will happen regarding a trial and jury. Anything is possible. We are waiting for a jury verdict. We will see what happens, and when the verdict comes in, we will provide another update.

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