Big Developments in the DePuy Pinnacle Trial Appeal
Hi, this is Stuart Talley here to do another update on the ongoing Pinnacle metal-on-metal hip trials. If you’ve been following our blog, you know that there has been oral argument in the second case that a jury entered a verdict in. That’s a case where the plaintiffs, there were five plaintiffs, Texas residents. They’ve recovered about 500 million dollars between the five plaintiffs. That verdict went up on appeal and yesterday they had the oral argument before the Fifth Circuit Court of Appeals on that case, on that appeal. The panel consisted of three judges who will make a decision as to whether the verdict should be overturned or whether the defendant should get a new trial. What was interesting is that there were a lot of arguments that were made in the briefs but the one that the court really focused in on was an issue that had to do with expert witnesses. At the trial, there was a witness who came to testify a Doctor Bernard Morey. Doctor Morey is one of the top orthopedic hip doctors in the world. He’s a very famous, very well-respected surgeon, president of something called the hip society. And what happened was there was a point at the point in time where the hip society and some publications were an issue in the case, and the plaintiffs’ attorneys approached Doctor Morey and asked if he would testify, and there was a meeting and Doctor Morey indicated that he would testify, and there was a request that was made to him by the plaintiffs’ attorney to pay him for his compensation for his time. And they asked him how much he would want and he said that he would never accept money for testifying at the case. He was very upset with what DePuy had done in the litigation, and so he said he wouldn’t accept any fees, any expert witness fees to testify. The plaintiffs’ attorney said to him, “Well, I feel bad. I want to compensate you for your time. Do you at least have a charity that we can donate some money to?” And he named a charity and that was it. There was no, after that, there was no actual payments made to the charity in the doctor’s name. At least it’s unclear that there was and he came and testified at the trial. And at the end of the case, in closing argument, there was a lot of argument made by the plaintiffs’ attorney that the experts for the plaintiffs had not been paid. That they came voluntarily and that they weren’t expecting payment. Whereas the expert for the defendant, the one who was the counter expert to Doctor Morey, actually received 900,000 dollars for his testimony. And so, that was argued a lot during the trial. So now, you have to fast forward. So, after that trial there’s a verdict a 500-million-dollar verdict, and you fast forward to the next trial. What was… what happened in the next trial is they wanted to bring the plaintiffs wanted to bring Doctor Morey again to testify, and Doctor Morey was approached and there was some concern because when he was originally supposed to testify in the first trial it was supposed to be a couple of hours he was supposed to come be in and out and because of all kinds of issues he was there for three days. He had to spend the night. And the plaintiffs’ attorneys felt bad about that, so they sent him 30,000 dollars for his time, which was ten thousand dollars-a-day, which was actually less than what the defendants experts were charging. So, as the discovery process went forward for the second trial, Doctor Morey, it was revealed that Doctor Morey had received this payment. And so, the defendants are arguing that there was some type of misrepresentation to the jury because Doctor Morey was paid for his testimony in the first trial when it was our that he was showing up voluntarily. The legal issues surrounding this situation has to do with the Federal Rules of Civil Procedure and in particular, rule 26. Rule 26 says that if you have a retained expert, somebody that you’re paying, okay, you have to provide a detailed disclosure to the other side. You have to tell everybody that you’re paying them, you have to give them a report from the expert that explains what their opinions are. That wasn’t done in that case because the position of the plaintiffs was that Doctor Morey wasn’t being paid, he wasn’t accepting payment, he was an expecting payment. On the other side of the argument, the defendant said, “Look, if you can pay somebody after the trials over, that’s what everybody’s going to do. They’re gonna say all their experts are non-retained experts, you don’t need to give them reports and then you just pay them after the case is over.” And that would be sort of a loophole in rule 26 that would not be workable. There was a lot of questioning of the plaintiffs’ attorneys in this situation that went on. It’s very difficult when you listen to the oral arguments, any oral argument an appeal, it’s very difficult to make predictions. You never know the way a court is going to rule, and often you’ll hear lots of questioning by the justices of one side and they rule the opposite way of what you were expecting, based on the question. So, I can’t make any predictions as to what occurs, but if some of the issues that were presented was that the payment to this doctor… first of all he had no expectation of payment. So, when he was testifying it wasn’t like he had a vested interest in the case or the outcome of the case, or his testimony wasn’t tainted by the expectation of payment. The second argument that was made on the plaintiffs side was that it really didn’t matter. If you look at, you know, the plaintiffs experts receiving $30,000 and the defendants experts receiving $900,000 that even if the argument was made, “Hey, our guy got 30, their guy got 900,” you still would have had the same outcome. It still would have had the same impact on the outcome of the case. The other argument that was made was that in the second trial, where Doctor Morey’s payments were disclosed to the jury, there was almost a billion-dollar verdict in that case. So, that was another example of why the disclosure of these payments really wouldn’t have made much of a difference in the outcome of the trial. So, right now we’re waiting for a decision. It could take 45 days, it could take a while before we actually get a written decision from the court. What I can tell you is that if the court rules that DePuy is entitled to a new trial, I really don’t think it will make much of an impact on the ultimate outcome of the litigation. We’ve had four bellwether trials now. There have been enormous verdicts. The evidence against DePuy is very damaging for DePuy. Every time DePuy tries one of these cases, they have to spend millions of dollars on experts. They spend a ton of money on their attorneys and it’s just not sustainable to continue trying these cases over and over and over again. There’s more than 9,000 of them sitting out there. So, I think at some point DePuy will have to come to the table and I think the purpose of these trials is to get them to come to the table, to get them to realize that they have a problem that they have to deal with. And that purpose is not thwarted if the appellate court says you need to have a new trial. The evidence that came out in these trials was very, like I said, very damaging to DePuy and a new trial is just going to result in another verdict. The same issue on the other appeals. The other appeals are going to deal with jurisdiction, whether the court in Texas had jurisdiction over the case and whether they should have been tried there. If the court rules there was no jurisdiction, it just means the cases have to be tried again. It doesn’t really change the economic incentives here for DePuy. So, win or lose, I think something should happen in the litigation going forward. Like I said, this is not a sustainable business practice for DePuy to come out and try all these cases. None of them will be just completely dismissed outright because there are no what I call sort of knockout blows that DePuy has to get rid of the cases all together. The best they can do on these appeals is get new trials, and that was pretty clear during the oral argument. So, that’s where we are. Stay tuned. When the appellate court decision comes out, we’ll do another blog update. If you have any questions or concerns, feel free to give us a call. Also, we really appreciate positive feedback or negative feedback, any feedback you want to give us, we have a section on our website where you can give us some reviews. If you like what we’re doing here, if you have anything that you want to add or suggestions as to what we can do on our blog, please let us know. Thank you very much.