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2016 DePuy Pinnacle Trial Update 40

Update 500 Million Dollar Texas Verdict in DePuy Pinnacle Hip Case

Video Transcript:

Hi, Stuart Talley here to do another update on the ongoing Pinnacle metal on metal hip litigation. If you’ve been following our updates you know that there has been three bellwether trials that have taken place in the litigation.

On the first verdict in the first bellwether trial was a defense verdict and the second the second and the third trials resulted in very large plaintiff’s verdicts. The most recent development in the case is we have an appeal of that second verdict. It was in the Aoki case. It was a five hundred million dollar verdict for five Texas plaintiffs. The verdict was eventually reduced to about three hundred million dollars and that case is currently on appeal before the Fifth Circuit Court of Appeals.

We have now reached the point where the briefing in the case is complete. The defendants have filed a brief, Johnson & Johnson and DePuy, and the plaintiffs have filed an opposition brief and there has been a reply brief on file. All of those briefs you can view on our website we’ll have them posted. The opposition brief I wanted to talk briefly about, that 100 page brief, lots of legal arguments lots of information about the trials in there. But really it focused in on three primary arguments that were made by the defendants.

On the first argument that the defendants made was that the plaintiffs had failed to prove that the metal-on-metal pinnacle hips were defectively designed because they had not demonstrated that there was a safer alternative design. At trial the plaintiffs argued that metal on metal hips in general were defective, that it was a bad design and that they should have stuck with their metal on plastics, which has been on the market for years and had a very good success rate. The defendants argued that comparing metal on metal hips to metal on plastic hits was not because they were different products, in other words, the defendants argued that the plaintiffs had to prove that there was a safer alternative to metal-on-metal hip. Well on in the appellate brief there is a very good discussion the plaintiffs had. A very good discussion of what the law is in Texas with respect to what a product is. Is the product a hip in general. And you look at various designs of a prosthetic hip. Is the product in metal on metal hip or metal and plastic hip.

The law is pretty clear that the word product is not interpreted as narrowly as deep you would like the court to believe. You look at what is the customer, what is the problem that the product is trying to solve and the problem that prosthetic hips are trying to solve is pain usually from arthritis. So a metal on plastic hip and a metal on metal hip, those are the same products. Therefore the same customers. They are trying to solve the same problem and there are two designs. One has metal on metal. One is metal on plastic. I think the plaintiffs did a very good job in the brief arguing that point and demonstrating that the argument that the defensive or are making just really went too far in their appeal.

The second major discussion in this brief relates to what the defendants argued. With respect to the FDA’s approval of metal on metal hips, in their brief the defendants had a very large discussion about how the FDA has refused to ban metal on metal hips and they made this argument, this implication, that the FDA had evaluated these hips and determined they were safe and was allowing them to be sold. That is not really what the FDA did and the plaintiffs made a very good point of explaining why the

FDA didn’t do that. What happened was the FDA convened a panel and after that panel considered metal on metal hips. What they did was they said that more study was needed. They ordered some of the manufacturers to do more studies on metal on metal hips and also they said that in the future any metal on metal hip that was coming to the market had to go through a more rigorous review process.

Before this panel convened, metal on metal hips could be approved through something called the 510 K process. It’s also called the fast-track process. It’s a very easy way to get devices approved. The FDA does not do any analysis of the safety of the product when they do a 510 K analysis and so what this panel did was they made it more difficult to get these hips approved. The defendants argued that this panel essentially gave its blessing the metal on metal hips because they didn’t ban them, they didn’t order them to be recalled. But that’s not really what the FDA did and it’s also important to know that at the time that the FDA had this panel meeting, metal on metal hips were almost obsolete at that point. No one was was putting them in anymore. Almost all the manufacturers that had metal on metal hips on the market had stopped selling them. So that was a major discussion in the brief.

The last discussion that, I think was, was critical, was discussion about the evidentiary rulings. There was a lot of evidentiary rulings and evidence that was admitted at trial that the defendants had problems with. Specifically, they did not like what’s called the deferred prosecution agreement that was admitted and discussed. The deferred prosecution agreement was an agreement that DePuy entered with the federal government because it was determined that DePuy was paying what the plaintiffs called kickbacks. The surgeons to use their products. In this deferred prosecution agreement, DePuy agreed to pay eighty five million dollars to the government and agreed that they were not going to engage in this practice of paying money to surgeons anymore. The defendant did not like that evidence coming into trial. It’s what we call character evidence.

You see this lots of times and you see this a lot in criminal trials. You’ll have somebody, maybe he’s accused of robbing a bank and the plaintiffs or the prosecution will try to admit evidence that this person has lied in the past, they’ve committed other crimes, they have a long history of committing different kinds of crimes. That type of character evidence is almost never admissible. The only time it is admissible is if the defendant or the defendants in the stand or someone in the case makes an argument that the defendant has a good character. That he’s a good person and he never would have committed a crime like this. That’s called opening the door. When a defendant opens the door to their

character then all of the past crimes can come in to impeach their character. In this case, that is what the judge ruled what happened was DePuy, at the very beginning of this case, with their CEO, took the position that Johnson & Johnson and DePuy were great companies. That their number one goal was to help people. That they had this credo that they lived by where the patient was always first and so all this evidence about the deferred prosecution agreement and all the things that that DePuy and Johnson & Johnson have done in the past, all of that became admissible because DePuy opened the door. That’s what the judge ruled and I think it’s a correct ruling and that’s what the plaintiffs in this appellate brief explained to the court. So right now we have been fully briefed, the next step is a panel will be appointed to hear the case and right now we have no idea who the panel is. It will be a prejudge panel.

There’s lots of judges on the Fifth Circuit Court of Appeals and you never know which three you’re going to get. They randomly assigned to these cases. What happens is they’ll be assigned to the case and then probably within a week there will be oral argument where the lawyers will stand in front of the three

Judges. Typically, during oral argument, the judges will ask lots lots of questions. What’s nice about the oral argument is that in many districts you can get videotape or audio recordings of the oral argument so when that argument occurs we will definitely provide some updates on how it happened during those oral arguments. Hopefully, we will have links to the actual arguments so you can listen to them.

So if you have a pinnacle metal-on-metal, if you have any questions at all, feel free to give us a call. You can reach us at the phone number on the screen. You can go to our website, fill out one of our online forms and either I or one of my associates will get back to you right away.

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