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$8.3 Million Verdict Upheld in DePuy ASR Trial

Update on $8.3 Million Dollar Verdict Against DePuy

Thursday, July 21, 2016: The California Court of Appeal upheld a $8.3 million judgment against DePuy Orthopaedics, a subsidiary of Johnson & Johnson, in the first case to go to trial involving the recalled DePuy ASR hip implants. The case is Kransky v. DePuy Orthopedics.

Video Transcript:

Hi I’m Anthony Garilli. I’m one of the attorneys here at Kershaw, Cook and Talley. I work for Stewart Talley who is in charge of all of our hip litigation. Stew is travelling this week so I’m filling in for him on this regular video blog. We want to get some information out to everybody right away about the DePuy ASR litigation case that was tried in 2013.

It was Lauren Krantzcke vs. DePuy Pugh and that case was tried down in Los Angeles. As many of you may have remembered, Stewart was putting out daily blogs – kind of what was going on with the case and when the verdict came down. Well this past Friday the second Appellate District of the Court of Appeals rendered their opinion from that trial.  Although the verdict was in Mr. Krantzcke and his family’s favor in that case, the jury awarded approximately three hundred and thirty eight thousand dollars in economic damages for past and potentially future medical expenses. Then they also awarded eight million dollars in non-economic damages for compensation for Mr. Krantzcke’s pain, his suffering, his mental anguish, his loss of enjoyment of life, disfigurement and all of the, what we refer to as, non-economic damages. So the total verdict was about eight point three million dollars and that was back in 2013. But of course DePuy appealed the decision and the court just rendered its opinion so we just wanted to go over with you what the court’s ruling was for.

I’ll give you a little bit of detail about it. So first of all the court affirmed the eight point three million dollar verdict in the favor of Mr. Krantzcke and his family so that’s that’s the good news. The Court of Appeal looked at all of DePuy’s challenges and in every single one of them they affirmed the trial court’s rulings and what the jury did. When they appealed that case, they essentially challenged six things.

The first three things DePuy challenged basically said the judge messed up. Then the second three things DePuy said is the jury messed up. So what happened was that six challenges were the first three was that the trial judge messed up when it excluded the evidence of the FDA’s approval of the device. The second thing they said was the judge messed up by permitting testimony from Mr. Krantzcke’s treating physician. That the judge shouldn’t have done that. The third thing was they said that the judge screwed up when it permitted testimony from an orthopedic surgeon that the plaintiffs attorneys called as an expert. So on the first part, DePuy wanted to introduce evidence that the ASR was approved by the FDA, that this was approved for sale and they wanted the jury to know that. Well the plaintiffs objected to it and the reason they did is they said listen DePuy is going to mis-characterize in this evidence and they’re going to try to confuse the jury because there’s really two ways that a device can be placed on the market. One of them is called the 501k approval process and the other one is called a PMA or pre-market approval process.

In the 501k approval process, when a company puts a product on the market under that prong, all it does, is the FDA only examines whether that product is substantially similar to another product that’s out on the market. That’s the way the DePuy ASR went on the market. The FDA never examines the safety of it or anything like that it’s just is there another metal-on-metal product on the market that is substantially similar. So the whole inquiry from the FDA is about this substantially similar to another product on the market. The PMA approve process, well, that is much more rigorous. It focuses specifically on the safety and the efficacy of the product itself and that’s not how the DePuy ASR went on the market. So DePuy just wanted to introduce that hey, the FDA approves this thing and what the plaintiff said is no that’s going to confuse the jury and so the court examined it and there’s an evidence code section called 352 where the court has given broad powers to admit or exclude evidence. One of the ways it can exclude evidence is that they believe if the Court believes that the probative value the useful value of this evidence is substantially outweighed by other things. One of those other things is an undue consumption of time and that’s the one that the court focused on here. It can confuse the issues but here the court said that if I allow you to put that FDA evidence on then the plaintiffs are going to be entitled to call experts that are familiar with the FDA process. They’re going to be allowed to put on experts to educate the jury about the differences that one of them focus is on safety the other one

doesn’t. Also, the plaintiffs may be entitled to put on information as to whether or not DePuy failed to comply with their obligations to report all the known adverse events of this device to the FDA. I think if I let you guys do that we’re going to create a mini trial within the trial and maybe it has the potential to confuse the jury and it’s just going to result in an undue consumption of time compared to the probative value of that. That’s what the court said and the Court of Appeals looked at that and said, no, if the judge got it right, the judge has a lot of discretion, he made a good record, he exercised his discretion in a way that it was okay to do so. They shot down DePuy’s first challenge in that manner. The second one is permitting the testimony.

Mr. Krantzcke’s treating physician testified to his high cobalt and chromium levels. He testified that he believed they were toxic and that they were killing him. Now, based on what he knew, he didn’t believe any of Mr. Krantzcke’s other numerous health problems were the cause of his pain and suffering. Though he concluded that those toxic levels of chromium cobalt were the cause of his pain and his suffering. Now the plaintiffs also did call a toxicologist as well as a biomedical engineer to testify about Mr. Krantzcke’s metal levels and the ions to explain to the jury that these were in fact toxic and would cause him harm. However, DePuy just didn’t believe that Mr. Krantzcke’s doctor, his treating doctor, should be allowed to testify to those things because he wasn’t a toxicologist. The court ultimately ruled that Mr. Krantzcke, and what I’m saying is, the Court of Appeals agreed with the trial court that Mr. Krantzcke’s treating doctor had sufficient qualifications to testify about those issues and that it’s generally permissible for a treating physician to testify not just about personal observations but also to his opinions and conclusions and that DePuy’s remedy, in that respect, was to cross-examine him. If they felt he wasn’t qualified enough to testify to these things, well then they could cross-examine him in front of the jury and try to show the jury that he really doesn’t know what he’s talking about when it comes to those things. But the Court of Appeal affirmed the trial court in that respect and it also it should be noted that before revision his doctor testified that Mr. Krantzcke basically on the verge of death. That after the removal and revision surgery he again did develop signs of improved health. So the court of the Court of Appeals did note that in their opinion.

The third way that DePuy in this appeal said that the judge had messed up was to say that they shouldn’t have allowed testimony from the orthopedic surgeon expert that the plaintiffs called. So DePuy objected to this testimony because this orthopedic doctor used five case examples that he believed were representative to illustrate how this device fails and two things:

Number one is when he was deposed. When that doctor’s deposition was taken, he did mention that they would be providing photographs of some of these other patients to show during the trial. Well, the plaintiffs produce those photos just days before the trial. So DePuy’s objections were based on two Things: number one that this doctors opinions were just merely anecdotal and couldn’t be compared to Krantzcke’s problems, which were quite different. Two: we weren’t giving these photos of these other surgeries until a few days ago and we weren’t ever able to question this doctor on those other five patients. So the court ruled in that respect was that you know this doctor his opinions weren’t just merely based on those five patients alone. This doctor had testified that he had performed 207 implant surgeries with the DePuy ASR and he had performed 70 revision surgeries. These five were just merely illustrative of the way this device fails. In addition, the court noted that this doctor overall had performed between five and six thousand hip implants and had performed somewhere between eight hundred and a thousand revision surgeries in all with all types of hips. So the court said that you know he was simply using these five cases permissibly to illustrate how the device failed and he was qualified to do so. As for deep use argument that, hey, this was unfair, what the court did is it fashioned the solution whereby it halted the trial and it allowed DePuy to go back and take this doctors deposition on those five particular patients and then they resumed the trial. The court of appeals, in a ruling on that, actually praised the trial judge regarding how quickly he was able to come up with a fair remedy mid-trial to kind of preserve the case. The court of appeals actually stated that his solution was a well-crafted and appropriate remedy. So that was it as far as the three main ways that DePuy tried to say the judge messed up.

The court of appeals disagreed with them and said the trial judge did just fine. Now the next three things, was that the jury messed up. The first was that they said there was no substantial evidence of a design defect to show that it was the cause of Mr. Krantzcke’s injuries. So DePuy basically said there were other causes of Mr. Krantzcke’s injuries, namely an infection and a pour implant angle, that the surgeon had put in. Now we know the plaintiff’s attorneys. The plaintiffs put up a slide showing that this design was defective at any angle and they showed an angle of 38 degrees, 40 degrees, 44 degrees, 45 degrees and 48 degrees. They showed photos of each one of those and every single one of them had failed and necessitated a revision surgery. Now to this whether or not there was substantial evidence to show that it was a defective design that was the cause of this injuries and not something else, to this the court simply really deferred to the jury’s findings. If a reasonable juror could have found for the plaintiff based on the entire record then the court kind of leaves it alone. It doesn’t reward credibility of the witnesses. That’s for the jury to decide. Since the jury came out in DePuy’s favor in this regard, the court left it alone. And to the Court of Appeals stated that Montana law, which the California Court was applying Montana law in this case because that’s where Mr. Krantzcke was from, Montana law simply doesn’t require the plaintiff to eliminate all other causes of his injuries. When there’s conflicting evidence on causation Montana law says it’s for the jury to decide. So the Court of Appeal dispensed with that argument the second way that DePuy said that the jury messed up in this case was that its verdict was internally inconsistent and therefore it cannot stand and this is what DePuy argued.

First they said the jury could not have found that the implant was defectively designed which required finding that the device was dangerous beyond what physicians had anticipated. But still find that DePuy had adequately warned the physicians with respect to failure. So to that the Court of Appeal said that when Krantzcke got his initial implant, information was still flowing in to DePuy from the medical community about these devices. And he got his implant in 2007. So the jury could find that at that time surgeons were adequately warned while still finding that the design itself was defective based upon it failing to later perform as the physicians would have expected beyond the physicians expectations.  So thus, with that there was no inconsistency in the jury’s findings.

The second way that DePuy said the jury’s findings were flawed was that DePuy argued the jury could not find that the ASRs design defects caused Krantzcke’s injuries on the strict liability claim but did not cause his injuries on the negligence claim. DePuy said that is internally inconsistent and that can’t stand well to this. Again the Court of Appeal said no the jury’s finding is not inconsistent and here’s why. The court stated that the jury could have found that DePuy, for instance, was negligent when it designed the implant. A defect in the implant caused an injury to  but the particular defect that caused Krantzcke’s injury was not the result of negligence. The example that the Court of Appeals gave was that the jury could have found that DePuy was negligent in designing the implant because they failed to have a toxicologist on the design team. But Krantzcke didn’t prove that had there been a toxicologist on the design team the product would not have come on to the market in a defective state. So there’s an instance where DePuy could have been negligent but still it’s not inconsistent with finding that it was a defective design.

Finally, the last thing that DePuy appealed in this case was that the damage award was excessive and that the court pretty quickly dispensed with the arguments. Montana law requires that the amount that the jury awarded was to be so grossly out of proportion as to shock the conscience. That’s the the term that’s really used is this shocked the conscience and to that DePuy wanted the court to look at other cases, other similar cases. But our Court of Appeal noted that Montana law already forbids using damage awards in one case as a measuring rod in another case because they’re unique. So because the court found that the $8.3 million dollars and they listed the evidence that was given, Mr. Krantzcke ‘s testimony, the testimony by his family, the pain and the suffering that he had went through, the fact that a lot of his other health ailments that he had would come and go but the pain was always there every single day. He had testified even though his doctors told him that there was a high probability that he would not survive his revision surgery. He went ahead with it anyway and even made funeral plans prior to it because he was in such pain and he thought I’m either gonna die right now then doing the surgery or I’m just going to die slowly in pain so he chose to go ahead with it. Thankfully, after the revision surgery, his health did improve. Unfortunately, he did not live to see this opinion be rendered.  Mr. Krantzcke passed away while this was pending on appeal.

The good news is that the Court of Appeal agreed with Mr. Krantzcke. You know, he took up this fight against a big company like Johnson & Johnson and DePuy and he was vindicated by the Court of Appeal. Our hearts go out to his family and we hope this gives them some semblance of comfort or having been vindicated in this fight. As for everyone else, what does this opinion mean? What does this appellate opinion mean?

It simply means that in the ASR litigation, which everyone else is separate from the Pinnacle litigation, this was a case that went to trial. It was a tough case because Mr. Krantzcke did have other health ailments but a jury found against DePuy and in favor of Mr. Krantzcke. So, again, you know perhaps with other ASR cases that are out there that still could be pending trial, maybe this this makes DePuy think twice and work a little harder to settle that case.

We just want to give you the news of for those of you that had been following the Krantzcke case that happened in 2013. The Court of Appeal came down with their decision on Friday. If they do appeal it to the California Supreme Court it’s not likely that the court will take up this case. So it is pretty much the end of that.

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