How Did Closing Arguments Go in the Latest DePuy Pinnacle Trial?
Closing arguments are over. Judge Kinkeade denied two motions for mistrial. I am out of the office for the rest of the week but more to come so stay tuned.
Today we had closing arguments in the case, which has finally come to a conclusion. The plaintiffs’ attorney went first in the case, and repeated his sort of theme of the case, which is that this was an experiment gone wrong. That the DePuy was a product that was rushed to the market without adequate testing. That the documents showed that the company was trying to beat the competition to the punch, to be one of the first companies to come out with a metal-on-metal hip, and that they didn’t want to lose market share. And that’s why they released the product without adequate testing.
He also talked about the fact that in order to promote this hip the doctor… DePuy paid millions of dollars to what they call design surgeons. The plaintiffs’ attorney discussed the evidence that was presented in the case that indicated that the surgeons had very little to do with the design of the hip. That in reality, they were paid millions of dollars to sell the hip. They were giving presentations to salesmen, they were going around the country to conferences talking about the benefits of these hips, and in return they were given a royalty interest. They were given a piece of every Pinnacle hip sale that occurred.
He also talked about the advertising for the hip, and how the advertising was based on studies that were in what the plaintiffs described as bogus studies. That there was false data in those studies. That the studies were designed in a way to not really indicate how these hips would perform in real life. He also talked about the fact that this pin study, which was the sort of the most important study that DePuy had concerning these hips, was really flawed in the sense that it only measured as a failure situations where the cup was removed from the patient. So, that was a problem because with Pinnacle metal-on-metal hips, when somebody has a problem with the hip, rarely is the cup removed. Typically, a surgery is performed, and the liners removed. The metal liners replaced with the plastic one. So, the whole purpose and intent of this study was designed to mislead. At least that’s what the plaintiffs were arguing at trial.
On the issue of damages, what was interesting is the plaintiffs did not ask for a specific amount. There are six plaintiffs, they talked about medical bills, but there was nothing done with respect to how much the plaintiffs thought should be awarded for pain and suffering. What the plaintiff did do was he asked the jury to award what they believed in their judgment was a reasonable amount to compensate the plaintiffs, and in doing so, he asked them to use what he called DePuy dollars. As an example, he talked about something called the deferred prosecution agreement, and this was an agreement that DePuy entered with various governmental regulators who had accused them of paying bribes to doctors in exchange for them to implant their devices. They paid an $84 million fine for doing this. During the trial, DePuy brought in a witness to talk about that deferred prosecution agreement. And the witness said that DePuy did nothing wrong, that the allegations were false, and that the only reason they paid this fine was to quote get rid of the headache. And so, what the plaintiffs attorney said is that this is a company that pays $84 million to get rid of headaches. In other words, the cost of an aspirin to this company. Eighty-four million dollars is like buying an aspirin for them. And so, he asked them, asked the jury, to think about damages in the context of DePuy dollars and those are the few dollars.
The other thing that happen during the trial is that, or during the closing, is the plaintiff attorney asked a series of questions that he wanted the defendants to answer. And these were questions that he brought up at the very beginning of the case, during his opening, and according to the plaintiffs the defendants were unable to answer these questions satisfactorily. One of the questions was, why didn’t they test the Pinnacle metal-on-metal hip before they released it to the market? Why didn’t they test it in people? The second question is, why did DePuy use dishonest marketing? Most of the witnesses who were confronted with that marketing almost had to concede that the marketing was dishonest and there really was no valid answer given to that question. Another question is, why did DePuy make payments to doctors? And he described them as illegal payments, meaning that the doctors were bribed to use the product and to sell it rather than to actually design it. Another question was, why did they cover up the problems with the hip that occurred in England in 2004? There was lots of testimony about that during the trial. That there were problems that arose in England in 2004 by a Doctor Tony Nargol raised these problems with DePuy, but DePuy either ignored them or attempted to impugn the integrity of Doctor Nargol indicating that he just had it he was the only one having a problem with these hips. And then, the last question he asked is, why didn’t DePuy ever send an alert out to patients and doctors about the problems? If DePuy knew there were problems, why didn’t it tell doctors to send patients out for blood tests? It’s a perfectly legitimate question to ask. It’s a precautionary measure that could have been taken, it could have helped a lot of people who went years without knowing that their hip was causing a problem.
Now on the other side of the coin, the defense attorney gave his closing, immediately after the plaintiff gave his, and essentially what was unique about his closing is, the closing did not really attack the individual plaintiffs or their doctors. In the past trial, there was an effort made by the defense, a big effort, just to argue that the plaintiffs injuries were not caused by the hip, that it was something else, that the person really didn’t have metallosis, or that the problem with the patient was that the doctor put the hip in at a bad angle, or that the patient had some immune disorder or was allergic to the hips. During the closing the defendant… the defense attorney did not make any of those arguments. What he did argue was that the development of the metal-on-metal hip the Pinnacle was reasonable, that it was the right thing to do, it was progress, that the company didn’t rush the hip to the market, that it took seven years to develop and design the hip before it was released. He also talked about clinical testing and said that testing the hips and people may not have revealed the problems with these hips because a lot of the problems happen over many years and that progress would be stymied and medical device development if manufacturers were required to test the devices in people for 10, 20 years before they could release it to the market.
He also talked about the advertisements. The fact that the plaintiffs were focusing so much on the ads really didn’t matter because none of the defendants actually—I’m sorry—none of the plaintiffs doctors actually saw those ads. None of them relied on those ads. There was testimony at the trial that many of the doctors wouldn’t admit that the ads made any difference to them, that what they relied on was clinical evidence and studies and published literature. He also talked about the fact that this hip was something that doctors wanted, that there was a problem with metal-on-plastic hips, and that doctors wanted some alternative, and this was just an alternative that they gave, and that doctors knew the risks, the doctors knew that these hips could shed metal ions.
And that was really the focus. The focus of the defense closing was that the company acted reasonably. In other words, this is just the cost of progress, that sometimes these things happen when you’re developing new medical devices that help people.
On reply, the plaintiffs get the last word, so plaintiffs’ attorney got to respond to the defense attorneys arguments. And what he talked about were two things, on reply. The first was he said, “look we’re not trying to stymie progress. What we’re trying to do is make sure that products are developed in a reasonable way. They should be tested, risks should be dealt with and examined, and if there are risks they should be fully disclosed to the doctors.” And the argument that the plaintiffs’ attorney made was that that was not done.
He also talked about the amount it would take to really punish DePuy. So, the question was in the context of punitive damages in a case like this. How much will it take to alter DePuy’s conduct going forward? How much money would it take to get their attention, so that they do not do this again? And so, during the trial and during closing, there was evidence admitted that DePuy, or—I’m sorry— Johnson and Johnson as a company, DePuy is a wholly owned subsidiary of Johnson & Johnson, but that Johnson and Johnson as a company is worth $72 billion. And to put that in terms that’s sort of easier to understand, $72 billion is actually seventy-two thousand-million dollars. It’s a lot of money. And so, what he did was, he said look let’s think about somebody who did something wrong that needs to be punished, and let’s say they have $72,000 in the bank, and what would happen if you fine them $500? That would be sort of a slap on the wrist. Most people would, if you had seventy two thousand in the bank, you did something wrong, you’d pay the 500 and move on. You’d be pretty happy that that’s all you had to pay. Now in the context of Johnson & Johnson, $500 would be $500 million, and so that sort of puts into context the kinds of dollars that we’re dealing with here. It’s a lot of money.
So, that’s how the closings went. They were… both attorneys, I thought, did a very very good job of laying out their case. The jury will now begin deliberations and hopefully we’ll have some kind of decision fairly soon. The questionnaire in the jury instructions for the jury is quite lengthy, so it may take time. There are six individual plaintiffs, so each person has to be looked at individually, and a decision rendered for each plaintiff. And it’s possible some plaintiffs may win and some may lose, but each plaintiff is considered individually. So, it could take a while before we do have a verdict.
If you have any questions about the ongoing trial, or what’s going on, feel free to give me a call. You can reach me at the phone number on the screen. We also have an online website you can go to where we have a questionnaire, and if you fill out the questionnaire, a lawyer will call you right back and answer any questions that you might have.