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The multidistrict litigation (MDL) regarding allegedly defective Pinnacle metal-on-metal hip implants made by Johnson & Johnson’s DePuy Orthopaedics, Inc. unit is being overseen by Texas U.S. District Judge Ed Kinkeade.  The first bellwether trial in the Pinnacle hip implant MDL ended in October 2014 in a defense verdict.

In the second bellwether DePuy Pinnacle hip trial, a Dallas jury on March 17 rendered a verdict in the sum of  $497.6 million.  The verdict was in favor of five plaintiffs whose cases had been consolidated, and included $360 million in punitive damages.  The punitive damages are expected to be reduced to $10 million based on a statutory cap in Texas.  J&J and DePuy appealed the verdict to the Fifth Circuit Court of Appeals arguing, inter alia, that they were unfairly prejudiced by the introduction at trial of references to Sadam Hussein’s henchmen and by unsupported speculation that plaintiffs might develop cancer as a result of their Pinnacle implants.

J&J and DePuy also moved to stay further Pinnacle bellwether trials in the multidistrict litigation (MDL), arguing that “moving ahead with further trials without appellate review of [the above-referenced] issues will undermine the efficiency and fairness of the MDL proceeding.”  Last Friday, Judge Kinkeade rejected this argument and entered an order (Doc. 660) selecting seven bellwether cases for trial starting September 6.  The rest of the cases in the Pinnacle MDL will be on hold until after these trials.

J&J and DePuy obviously hoped to delay the proceedings.  Judge Kinkeade elected to continue the process, which was designed to help the parties evaluate cases.  Hopefully, the additional bellwether trials will allow the parties to efficiently evaluate and resolve the remaining cases.  DePuy stopped selling the metal-on-metal version of the Pinnacle device in 2013, the year it paid $2.5 billion to settle more than 7,000 lawsuits over its ASR metal-on-metal hip device.  The ASR was recalled in 2010.  Following the March Pinnacle bellwether verdict, shares of J&J fell 0.6 percent on the NYSE.  The ASR and Pinnacle metal-on-metal devices are substantially similar.  J&J’s shares rose following the ASR settlement.  It doesn’t make much sense for J&J to continue to risk its share value over a product it no longer sells.

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