Why the Fourth Bellwether Pinnacle Trial Has Been Delayed
Hi, this is Stuart Talley here to do an update on the ongoing Pinnacle metal-on-metal hip trials. Last Friday we received an order from the Fifth Circuit Court of Appeals that has dramatically impacted the status of the litigation. The order relates to whether the court in Texas has jurisdiction to hear trials of plaintiffs who don’t live in Texas. And it’s somewhat complicated, but the way the system is set up is all of these cases from all over the country are consolidated before judge Kincaid in Texas, and the way the law is written is judge Kincaid is supposed to manage these cases for pretrial purposes. There’s 9,000. He’s in charge of the discovery, what experts can testify, he does everything that’s what we consider pretrial before the case goes to trial. And the way the law is written is the judge in Texas is supposed to send cases back to the home state of where the plaintiffs reside for purposes of trial, and there’s a very famous case that came down several years ago, it’s called lexicon, and under lexicon the appellate court said that the court that is overseeing the litigation doesn’t have jurisdiction to hear or conduct trials of cases for people who don’t live in that jurisdiction. So, the defendants made the argument that the trial with the New York plaintiffs could not take place in Texas. This is the trial that’s supposed to take place on September 5th. The plaintiffs argued that the defendants DePuy had waived lexicon for purposes of the bellwether trial process, and there is lots of statements that were made in court, there were orders, there was a lot of evidence that DePuy was willing to waive lexicon in connection with this bellwether trial process because it can be incredibly expensive and unwieldy to have to defend cases in trial all over the country. DePuy changed heart with respect to their wavers after the second trial. That was the trial where there was a big verdict for five Texas plaintiffs. They changed heart and claimed that they never did waive lexicon. So, what they did was they filed what’s called an emergency writ with the appellate court in the Fifth Circuit trying to get them to tell the trial judge, Judge Kincaid, that he could not go forward with the trial of the New York plaintiffs that was supposed to take place on September 5th and the order that came out of the Fifth Circuit last Friday is a very very unusual order. I have not seen one like this before. In order to get a writ granted, you have to show that you’re gonna win, first of all, or that you have a probability of winning on the merits of your appeal, but the other thing you have to show is that there is no other adequate remedy that jumping in before the case is over that the appellate court has to jump in otherwise there’s going to be some kind of terrible damage that’s going to occur to one of the parties, and there are certain circumstances where that can occur, but this is not one of them. There are many many cases out there that say if the damage you’re claiming is that you have to go through a trial, that’s not the sufficient kind of damage to warrant the appellate court jumping in and stopping the proceedings entirely. It’s an extraordinary remedy. So what the appellate court did, which was unusual, is normally when you get to that no adequate remedy element of the claim, if they find that there is an adequate remedy you can go to trial and then appeal all of this after the fact they just deny the writ, and it’s usually a one-pager. What we got from the appellate court is unusual because they addressed in detail the merits of DePuy’s argument. They found at least two of the three judges found that DePuy had demonstrated that they had not waived lexicon in connection with the upcoming trial, and that the judge made a mistake in finding that they did. And there’s pretty strong language in this order related to the merits of the appeal, but then they denied the writ, which is unusual, and they denied it because they said you can just go forward with the trial and bring this up after the fact. But it would be unusual for a judge Kincaid to do that when he has an appellate court telling him he’s made a mistake. So, right now it’s unclear what’s going to happen. The plaintiffs have filed a request for what’s called an en Banc review, and what that means is right now there are three judges who considered this writ and they denied the writ, but they included all of this language in their order that will make it difficult for the judge to go forward with the trial in September. So, what we’ve done is we’ve appealed to the entire Fifth Circuit, there are multiple judges in the Fifth Circuit, and often if you ask for an en Banc review if the entire group of judges feels it’s warranted they will reconsider the writ. As in is a much larger group of judges. So, that en Banc review or the request for the en Banc review is pending. We don’t know if we’re going to get it. Hopefully, we will. In the meantime, Judge Kincaid has continued the trial date from September 5th to September 18th to sort of give the appellate review process time to develop. So, that’s where we are. The trial, whether it will go forward or not, it’s unclear. The writ was denied, so theoretically, Judge Kincaid could go forward with the trial, take the position that the defendant waived lexicon, like he had before. Go forward the trial, if it’s a plaintiff’s verdict, it will go up on appeal and the appellate court will decide whether there was jurisdiction or not, whether there was a lexicon waiver. I don’t expect the judge to do that just because if he’s wrong that there wasn’t a lexicon waiver, then the entire trial could be thrown out, the results can be thrown out, based on those grounds alone. So, we’re sort of in a holding pattern right now. Hopefully, this will all work out and the Fifth Circuit will undo what this three-judge panel has done and the trials will start. In any of that, this isn’t even if we’re not successful, this doesn’t mean that this is the end of the road. What it means is that the judge is going to have to start sending cases out to the home courts of where plaintiffs live for trial. It’ll mean that the bellwether trial process will end, and now we’re just going to have individual trials all over the country. So, like I said this is not the end of the world even if the plaintiffs don’t prevail, but it is sort of a setback because you know the plaintiffs were ready to start trying the case later this week. So, if you have a metal-on-metal hip you have any you have a case pending or you have any questions about any of this, I know it’s a little complicated, feel free to give us a call. You can reach us at the phone number on the screen, or you can fill out one of our online forms and a lawyer we’ll get right back to you.