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2018 DePuy Pinnacle Trial Update 2

Recent Filed Motions Causes Weeks Delay in DePuy Pinnacle Hip Retrial

Video Transcript

Hi, Stuart Talley here to do another update on the ongoing pinnacle metal on metal hip litigation.

Today is Tuesday June 5th and if you’ve been following our blog you will know that there are several verdicts that are currently up on appeal. The first appeal was decided a few months ago and the appellate court ruled that the defendants were entitled to a new trial.

The second appeal, which involves the group of California plaintiffs that had a verdict of about 1.3 billion dollars, that appeal is going to be heard on Thursday June 7th. So two days from today. I expect that the focus of this appeal is going to be on something called the “lexicon waiver.” Specifically what that means is there is a Supreme Court case that’s called lexicon and in that case what the court said was that in an MDL proceeding like we have here – and an MDL proceeding is where you have cases from all over the country that are consolidated and put in front of one judge – that when cases are ready for trial they are supposed to be sent back to the home district court of where the plaintiff originally filed his case. So typically what would happen is the judge would in the MDL proceeding would maybe try a few bellwether cases for people who live in the district where the action is pending and then for everybody who doesn’t live in that district would send their cases back to their home state.

Well, what happened was at the beginning of this case DePuy indicated that they would waive lexicon and what that means is that they would allow cases that weren’t California residents to be tried to a jury in Texas where the MDL is pending and that waiver was initiated at the very beginning of the case. DePuy ended up getting a defense verdict in the very first trial which was a single plaintiff.

The next trial was versus Texas residents so the lexicon issue didn’t come up in that case. But the third trial was with California residents and when the judge said he was going to try six California residents in one trial, DePuy stood up and said, well we don’t waive lexicon. And the plaintiff said well you already waived it, it’s too late. And so that’s the issue.

Before the judge or before the appellate court the issue is was there a true lexicon waiver that would allow the court in Texas to try the claims of California plaintiffs that will probably be front and center. Because if there wasn’t a lexicon waiver then the court never should have tried the case and the appellate court will likely reverse the verdict that was entered in that case. But it doesn’t mean that those cases just go away or that they’re going to be dismissed. All it would mean is that those five plaintiffs or six plaintiffs who tried their case in Texas, they would just have to have another trial in

California. So if we don’t get a favorable ruling on this lexicon waiver issue at the end of the day it doesn’t mean that people’s cases are going to be dismissed or that those six individuals won’t eventually get their day in court. It will just mean that they have to do it all over again. So that’s what I expect to see on Thursday. I expect to hear a lot of argument.

If you’re interested in listening to the oral argument, If you go to the Fifth Circuit Court of Appeals website there is actually a location on the website where you can listen to the oral argument. So if you’re really interested in this litigation I invite you to go to the website and listen in on the oral argument to see how it goes now while that’s happening in the appellate court.

In trial court there is an issue with respect to what to do with the 9,000 cases that are sitting there and both sides the defendants and the plaintiffs have put forward proposals for what we call remanding the cases. So, as I mentioned, under lexicon the cases are supposed to be set back to the home districts of where the plaintiffs live. And the question is what’s the process that’s going to be put in place to do what the plaintiffs have proposed.

What happens is we send ten cases back to the four districts where there have been trials. So there has been trials involving the laws of Montana, New York, California and Texas. And the plaintiffs have proposed that the parties pick ten cases from each of those districts. Those cases get worked up. When I say worked up I mean the individual discovery get done. It gets done in those cases and then the judge, once everything is done, will remand those cases to the district court. Presumably the judge at the district court level will just be able to have a trial. All the pretrial rulings will be done. All the discovery will be done. And it will just be ready to go and the idea would be that you’d work up ten then you’d work up another ten and you just keep going through it over and over again until the cases are done or DePuy offers some kind of settlement proposal.

DePuy does not like that approach and instead DePuy has recommended that what the court do is look at the first hundred and fifty cases that were filed and immediately send those back to the district courts. So each district court judge, and it could be all 50 states, but each district court judge and each one of the states would be in charge of the individual discovery in those cases. They would have to make a lot of pretrial rulings. They could be made in the district court that could apply to everybody but their approach is to do it that way the judge has not ruled. I don’t expect him to rule until after we get another decision from the most recent appeal.

The most recent appeal, as far as timing goes, normally the court will issue a ruling on an appeal within 60 days after oral argument. At least that’s their internal guide and goal. In the last appeal it took much longer than 60 days so we’ll see what happens.

If you have a Pinnacle metal on metal hip and you have any questions about what’s going on with the case, 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. Also, feel free to give us a good review if you like these updates on our website and we’ll be in touch.

Stay tuned.

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