New Developments for the DePuy Pinnacle Trial and Unexpected Good News
Stuart Talley here to do another update on the Pinnacle metal-on-metal hip litigation. If you’ve been following our blog, you know that there has now been three trials in the Pinnacle litigation. The first one was a defense verdict, the second trial resulted in a plaintiff’s verdict for about 500 million dollars, and the third case resulted in a plane its verdict of about a billion dollars. Today, I’m doing a report on the appeal from the second verdict. We now have in the defendant’s appellate brief. This is the brief that they have filed with the Fifth Circuit Court of Appeals asking that the court overturned the verdict in that second trial. The plaintiffs have not yet responded to the brief and that is expected to occur in the short future. There will be a briefing schedule fairly soon. On what I’ve been told from the appellate specialists that are handling the case is that it is unlikely the appeal will be decided before the next trial occurs, which is in September, given the schedule and given the history of how long the Fifth Circuit takes to the side appeal. The appeal is essentially what we expected. There are several arguments that the defendants make to try and get the verdict overturned. The first argument, which is one that would actually overturn the verdict in its entirety, is based on the argument that there was no evidence presented that the DePuy metal-on-metal hip was a defective product. Under Texas law, to show that something is a defective product, you need to show that it’s defectively designed, and in order to do that you have to show that the design of the product is dangerous and that there’s an alternative design that’s safer. The plaintiffs in the case argued, justifiably, that the alternative to a metal-on-metal hip is a metal-on-plastic hip. Metal-on-plastic hips have been on the market for years before the introduction of the Pinnacle metal-on-metal hip and that’s the alternative design that was safer. In their appeal, the defendants make a what I would say is a creative argument, and the argument is that in order for the alternative design to be safer it has to be an alternative design for the same product, and their argument is that a metal-on-metal hip is a different product than a metal-on-plastic hip. That in essence they’re different things, and so you can’t compare the design of the two. And because the plaintiffs did not resent evidence that there was a safe metal-on-metal hip, and in fact the argument I think at trial was that all metal on metal hips are dangerous, that the plaintiff should lose that’s the argument that the defendants make. The analogy they come up with in their brief is there are cases involving defective cars, and so if you argue that a convertible is defective because it doesn’t have a roof, then in essence you’re arguing that all convertibles are defective, and in essence you’re saying that those cars should not be on the market. So, they take that analogy and they sort of morph it together with what we call FDA preemption. So, they argue that metal-on-metal hips… What the plaintiffs are arguing is that they’re inherently defective, but the FDA has allowed metal-on-metal hips on the market. So in essence, they’re saying that if you’re arguing that this design is defective, the metal-on-metal-ness of the hip, then in essence what you’re doing is you’re contradicting the FDA, who’s determined that it is safe. I don’t think that argument is going to fly. I think that it’s not a well-taken argument. I think it’s clear that what we’re talking about here is a prosthetic hip, and there was a design change and the design change was taking metal-on-plastic and turning it into metal-on-metal. That’s not a different product. The hip is a hip. They’re used to the same purpose, they go into the same people, and a metal-on-metal hip is not a completely different product. So, we’ll see how that goes. The other arguments that they make is with respect to two of the plaintiffs, they say the statute of limitations ran. And the argument that they make is that the plaintiffs had pain and experienced pain at a certain time, and they argue that the statute of limitation started to run from the moment they felt pain. And because they didn’t file their lawsuit within two years, the statute I run. Because what happened was these people had pain for a long period of time, and it wasn’t until the revision surgery occurred that they called a lawyer and that their case was filed. So, we’ll see how that argument goes. I don’t think that somebody who just has hip pain should know that they have a lawsuit or suspect that there’s something wrong with their hip because there’s lots of reasons somebody can have a hip pain that has nothing to do with metal wear debris. And until a doctor tells you that’s the problem, I don’t think the statute limitations will start to run. The third sort of major arguments they make on the appeal is that there was a lot of inflammatory evidence that was presented at trial. There was reference to bribes and references to guilty pleas in various issues, and I don’t think those are going to go anywhere. The judge has a lot of discretion as to what evidence he lets in. What the judge ruled was that DePuy by arguing to the jury that they were a good corporate citizen, and that they were trying to do the right thing, that they in essence, opened the door to all of this bad stuff about their conduct in the past, that they weren’t good corporate citizens. And so, a lot of the quote-unquote inflammatory evidence was brought on by the arguments that DePuy and J&J made at the trial. So, those are the primary arguments, there are some other ones they make, some minor arguments in the case as to why it should be overturned or why they should get a new trial, but that’s where we are. One significant development is on the plaintiffs’ side, Ken Star has associated into this case for the plaintiffs. He is one of the best appellate attorneys in the country. If you follow politics, you know he was involved in the whitewater matter, but he’s argued numerous numerous courts, or the numerous cases to the US Supreme Court. He was the Solicitor General for the United States for a long period of time, and he really is one of the best appellate specialists in the in the world. And he’s working on this case for the plaintiffs, so that’s a very very good development. The brief will have it up on our website if you want to download it and read it. It’s a lot of legalese but you might want to take a look at it. When the plaintiffs’ brief is presented, we’ll do another video. We haven’t… The plaintiffs haven’t finalized their brief yet, it has been filed, but that’s in the works. When that’s up we’ll put that up on the website and do another video. If you have any questions about the litigation, how its proceeding or you have a Pinnacle metal-on-metal hip and you want to know what you should do, feel free to give us call. You could reach us at the phone number on the screen, you can go to our website, fill out one of our online forms and a lawyer will get right back to you.