What Does an Appellate Court Decision Mean for the DePuy Pinnacle Trial?
Hi, this is Stuart Talley. I’m here to do another update on the ongoing metal-on-metal Pinnacle hip trial. If you’ve been following our blog, you know that we are currently in the process of getting ready to try the fourth bellwether trial to a jury, and this case involves seven plaintiffs who live in New York. The case is going to be tried in Dallas, Texas and like I said before this is the fourth bellwether trial. Now, last week we had a decision that came out of the Fifth Circuit Court of Appeals that was a very very unusual decision. Before the case could be tried DePuy filed an emergency writ with the Fifth Circuit asking that they order the judge in Dallas to not conduct the trial for the New York plaintiffs. And the argument that was made was that the court in Dallas did not have jurisdiction to try cases for New York plaintiffs. The opposition of that, the plaintiffs argued, that the court did have jurisdiction because DePuy expressly agreed to allow trials to take place with respect to non-Texas residents in the Texas Court, and that they had agreed to do that at the very beginning of the litigation and it was only after they started losing trials that they took that agreement back so to speak. What we got out of the Fifth Circuit last week was a very unusual decision. In order to have what’s called an emergency writ granted, you have to show that there is some kind of irreparable injury that will occur if the writ is not granted because what happens is most courts, appellate courts, they don’t want to hear appeals or decide issues on cases in the middle of the case. They want to wait till the very end of the case, until there’s a verdict, until there’s motions for new trial, the very very end then they consider all of the arguments on appeal. So writs are very difficult to get granted. DePuy filed the writ, and the court denied the writ because they said that there was no irreparable injury. But in the order denying the writ the Fifth Circuit did something very unusual. They said that there was no jurisdiction, that the judge in Dallas didn’t have jurisdiction to hear these trials or let these trials take place in Dallas, but nonetheless, they denied the writ because the argument was that these issues of whether there’s jurisdiction or not that can be made at the very end after there’s a verdict. Who knows? Maybe DePuy will win the trial and there will be no appeal at the end of the day. So, they denied the writ. The plaintiffs filed a motion for rehearing with the Fifth Circuit, and in the motion for rehearing they asked for all of the judges on the Fifth Circuit to hear the appeal or to redecide the writ. There are many judges on the Fifth Circuit, but there were only three who decided this writ. That is what they call the panel of judges that decided the writ and came out with this order. It was unusual because what it did was it was basically what we call an advisory opinion. It was an appellate court advising a trial judge to do something without ordering him to do it, and that is highly unusual. Appellate courts try to do everything they can to avoid issuing advisory opinions. So, the motion to have a rehearing was denied. That was denied today. So, what we have is this advisory opinion telling the trial court that he doesn’t have jurisdiction, but there’s no order telling him not to go forward with these trials. So, what Judge Kincaid has decided to do is he’s going forward with the trials. The trial started today. They had jury questionnaires that went out to the jurors, there’s gonna be jury selection I think later today and tomorrow. Opening statements should take place on Wednesday, so the trial is going forward. This issue of jurisdiction will come up again most likely at the very end of the case if there is a verdict for the plaintiff. It’s uncertain at this point whether the three judges that issued the advisory opinion will also be the same three judges who may hear an appeal down the road on an eventual verdict if there is one at the end of the day. I don’t think that the decision from the Fifth Circuit was very well taken. I think the argument that the plaintiffs made that there was a waiver of this jurisdictional argument is a good argument, but it remains to be seen how the next panel of judges will decide at the end of the day. So, I think from the standpoint of the plaintiffs there’s been a huge amount of work and effort that has gone into getting these cases ready for trial and I think it’s a good decision that the judge is letting them go forward. If there’s an appeal at the end of the day, the plaintiffs will deal with it. The arguments will be made again and maybe this time the plaintiffs will prevail on those arguments. So I think it’s good news at this point that the case is going forward. We’ll see what the jury does and stay tuned because as the case progresses we will provide updates on a regular basis as to what’s going on in the courtroom so that all of you can keep track of how the trial is going. If you have any questions or concerns, if you have a metal-on-metal Pinnacle hip and you need somebody to talk to, you can always call our office you can reach us at the phone number on the screen. You can fill out one of our online forms and a lawyer will call you right back.