Cobalt Chromium Toxicity Resource Center

DePuy Pinnacle Trial Update One (Week 1 9/2-9/7)





Hi, I’m Stuart Talley with Kershaw, Cook & Talley LLP. Bill Kershaw and I are the partners responsible for providing a status update on the DePuy Pinnacle litigation.

We are providing an update on the recent DePuy Pinnacle trial that started in federal court in Dallas, Texas on September 2, 2014. The trial involves Kathleen Herlihy-Paoli’s case. This is the first case of more than 6,000 cases on file involving DePuy Pinnacle tried in front of a jury.

The outcome of Herlihy-Paoli’s case is an important precedent for the other cases. Generally, in mass tort litigation, the first few cases going to trial are “bellwether” or test cases. A bellwether trial is a selection of representative sample of cases tried in front of a jury. Bellwether cases are normally demonstrative of matters which may arise in every injured party’s case. The idea of bellwethers is providing an indication of the outcome of future trials, and gaining enough information to determine whether or not cases should be settled and the approximate monetary compensation of those settlements.

Ms. Herlihy-Paoli suffered from a condition known as congenital hip dysplasia. Hip dysplasia is a deformity of the hip joints. It is a common condition requiring hip replacements. She was in her forties when implanted bilaterally (in both hips) with DePuy Pinnacles. She had pain and heard of the issues concerning metal on metal hips. She had blood tests which revealed her cobalt levels were over 400 parts per billion. Normal cobalt levels are less than one part per billion.

In respect to Herlihy-Paoli, her case is unique. The manufacturer provides minimal guidance on the appropriate angle of the cup. It is important the surgeon implants the cup at an angle that will ensure the hip is stable so that it doesn’t fracture or dislocate in the future. Due to Ms. Paoli’s hip dysplasia, her hips were implanted at an unusual angle, steeper than most people, during her index (initial) surgery. Subsequently, she required bilateral revision of her DePuy Pinnacle hip implants. In her first revision, the surgeon replaced the metal liner with a plastic liner but left the hip at an extreme angle. In the second revision, the surgeon replaced the cup entirely and changed the angle of the cup. After both revisions, both hips had plastic liners but one hip was at an extreme angle and the other at a more neutral angle. Ms. Paoli suddenly had a catastrophic failure of the hip remaining at an extreme angle. The plastic liner in that hip shattered and she required another surgery. She has undergone five hip surgeries since developing hip problems.

On September 3rd, we had opening arguments. Opening arguments consist of the plaintiff’s attorney, and defense attorney, telling their story to the jury and providing a summary of the evidence. Mark Lanier, the plaintiff’s attorney, is one of the best trial attorneys in the country. Mr. Lanier did an unbelievable job in his opening statement. He focused the case on the marketing for the DePuy Pinnacle. He discussed how surgeons were informed that the DePuy Pinnacle was indestructible. In DePuy’s advertising, they told surgeons 99.9% of the hips were still implanted. Essentially, they were telling surgeons the failure rate of the hip was 0.1%. According to Mr. Lanier, the failure rates were closer to 15% not 0.1%.  Mr. Lanier talked about numerous documents and witnesses that he will present. He is establishing DePuy knew the Pinnacle had a very high failure rate and knew it was not as good as the metal-on-plastic hips but hid this from the medical community; they did everything they could to prevent this information from getting out. This is the heart of the plaintiff’s case; the idea surgeons were misled regarding this hip and information about its dangers were kept hidden from the public.

The defense attorney told the jury to ignore all the marketing issues and failure rates, and focus on the fact these hips were implanted at an extreme angle. From the defense standpoint, no matter what kind of liner Herlihy-Paoli had in the cup, she was going to have problems anyway. Their supporting evidence is the fact that the hip with the plastic liner, the one which failed recently, was at an extreme angle. In the defendant’s mind, the proof is regardless of the liner type, she was going to have these problems and surgeries anyway. The defense is blaming the surgeon. He stated all surgeons know about the “safe zone” or range of angles to implant these hips without any problems. He argued the surgeon who implanted Ms. Paoli with her hip violated the safe zone.

Later, the plaintiffs will call their first witness, Andrew Ekdahl, ex-CEO of DePuy and defendant in the case, to the stand. He was heavily involved with the development and marketing of the hips. As the trial progresses, visit our website for further updates.

 


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