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DePuy Pinnacle 2016 Trial Update: Your Attorney

Hi, this is Stuart Talley. I am the partner here responsible for the DePuy Pinnacle litigation at our firm. The reason I am doing this video is to answer a question many people have asked us over the years.

We get calls many times from people who have cases on file with other lawyers who are seeking information about the litigation, and about what is going on with their case.  It seems that a common problem is people are not getting information about the case, or about the litigation, from their lawyers. We hear people voicing their concern that they’re not able to contact their lawyer. So, I wanted to give some advice on how to deal with that kind of situation.

The first option you should consider is when you call your attorney’s office it’s important that you ask to speak with the attorney directly. Many times paralegals, assistants, or secretaries may not have the kind of in-depth knowledge that you need about your case or about the litigation; ask to speak directly to your attorney. If he or she is not available, ask for their email address. Send them an email. That’s often a very good way to get in touch with your attorney especially on that’s very busy and is often out of the office.

The other option is asking for your attorney’s cell phone number. At my firm, we give all our clients my personal cell phone number and they can reach me when I am traveling or anytime. If you ask for your attorney’s cell phone number at the beginning of the case, they should give it to you. They should be accessible.

If phone calls and emails don’t work, you should send a letter to your attorney explaining that you are not happy with the communication, with the information that’s provided, and you would like more regular updates. Letters almost always get responded to.

Now, if you’ve tried the former suggestions and you’re still not getting a response or getting adequate information, the last resort is that you are always free to fire your attorney. The law in almost every state gives clients the absolute right to change attorneys at any time. If you are not getting information from your attorney and they’re not responding to your inquiries adequately, you can send them a letter indicating you are going to retain a new attorney. Now, almost all states have laws that give clients the absolute right to change attorneys.

Typically, the way it works with fees is that, if you’re on a contingency fee agreement, the new attorney will almost always match the fee agreement of your previous attorney. So, if your previous attorney was charging 40%, the new attorney will charge 40%. This does not mean you have to pay 80%. The laws in almost every state are that if someone changes attorneys the client will not have to pay more in fees. So, the fee will remain the same. The fee will then be divided among your old attorney and new attorney. It will be divided based on the amount of work that each attorney contributed to your case.

If you change attorneys early on in the litigation, and the new attorney takes your case, and works it up and gets it ready for trial (or settlement), that attorney will usually get most of the 40% fee. Conversely, if you change attorneys at the last minute, right before you go to trial, your previous attorney will get most of the fee. It is important to know it will not cost you anything extra. As the client, you have a right to change attorneys. Even if the attorney puts something in their contract that says,  “you’re going to have to pay me a fee even if you fire me”, this is not valid to make you pay more than the agreed-upon percentage.

This is my advice to people who call me and are concerned about their attorneys not responding to them. If you have any other questions or concerns, or you want some more advice on what you can do, feel free to give us a call.

Stay tuned. Opening statements started this morning. We will have more updates  soon.

DePuy Pinnacle 2016 Trial Update 22

Hi, Stuart Talley here to do a quick update on the DePuy Pinnacle trial.  We received word from the Fifth Circuit Court of Appeals (COA)  on various petitions that  DePuy had filed  in an effort to up-end  the current trial that is set  to start opening statements on Monday, October  3rd.

The COA rejected all of DePuy’s arguments and efforts to basically  stay the litigation  pending their appeals.  DePuy made arguments that there was no jurisdiction in the Texas court for people that resided in California. They also made some arguments that consolidating the case  was unfair and the speed at which  the trial was going to commence  was  unfair; that they didn’t have enough time to  get ready. All these  arguments  were denied by the COA and opening statements will begin  as scheduled.

This is  good news for the plaintiffs.  Stay tuned. We will provide regular updates  on how the trial progresses .

DePuy Pinnacle 2016 Trial Update 21

Hi, this is Stuart Talley here to provide another update on the ongoing DePuy Pinnacle hip trial occurring in Dallas, Texas. Yesterday, a prospective jury was brought in. Today, there is jury selection.

Yesterday, we were also met with complaints and filings that Johnson & Johnson (J&J) made with the Court of Appeals (COA) to try and get the trial derailed. The first motion they filed with the appellate court was one again objecting to the consolidation of six cases for trial. If you have been watching my videos, you will know that this trial is for six individual plaintiffs all of whom live in California. It will be tried in front of one jury. The defendants are complaining and asserting that this is not fair.

The second motion they filed with the appellate court was a last second motion to contest personal jurisdiction. They are arguing that the court in Texas does not have jurisdiction to even hear the trial. This is a new argument that has not been made previously. I think it is a long shot of having any chance with the appellate court.

So, those were the motions that J&J filed with the appellate court. I do not expect those to go anywhere. The judge is moving forward with the trial. He entered an order yesterday indicating that each side in this trial will only have 70 hours to put on their case. This is an effort to streamline the process to get both the plaintiffs and defendants to determine exactly what types of evidence they want to get into the case, in front of the jury, and to streamline the process so future trials go quicker.

70 hours is still a significant period of time. With 70 hours of testimony and cross examination, you are looking at about 3 weeks of trial. 3 weeks on each side is a 6 week trial. It is substantially shorter than the previous trials which lasted months. But it is still a substantial effort to put on these cases.
The judge allowed live testimony by satellite broadcast which is helpful to the plaintiffs. So, there are some witnesses who live in other states; a lot of them live in California. Their testimony will be presented by Skype, or whichever software. But there will be live video testimony in the court with direct and cross examination of the witness in some other location. This is helpful for the plaintiffs because many witnesses are out of state.

The trial is moving forward. Jury selection is today. Today, they will actually pick the jury. Stay tuned, we will keep you updated. Hopefully, we will have opening arguments tomorrow. I will provide an update on what occurs.

If you have a Pinnacle hip, and have any questions, you can always call us or fill out our online form.

DePuy Pinnacle 2016 Trial Update 20

Hi, this is Stuart Talley here to provide another update on the ongoing DePuy Pinnacle hip trial. If you have been following our videos, you know that there is an upcoming trial starting on September 26 for a group of six California plaintiffs.

Ever since the trial date was set by the trial court, the defendants have gone to extraordinary lengths to try and get the trial date pushed off. They have made arguments before the trial court that it is impossible for them to conduct the amount of discovery necessary for them to get the cases ready for trial between now and the end of September. The trial court denied those requests to get the trial date moved.

We had an order that came out on September 1 where the trial court indicated the trial date would not be moved. It was indicated that the defendants had waited too long to begin seeking medical records and discovery from the six plaintiffs selected for that trial. As a result, if there was any prejudice to them it was caused by their own delay in action.

The defendants have now gone to the Fifth Circuit Court of Appeals to request that they move the trial date. We do not yet have a decision from the Fifth Circuit. But what’s important to know regarding the scheduling of trials, coordinating discovery, the trial court has a huge amount of discretion. It would be highly unusual for an appellate court to overturn the decision of a trial court with respect to scheduling of trials, discovery and depositions.

I do not expect that this trial is going to be moved. The fact that the defendant keeps filing motion after motion to get it delay, stayed or moved, is a good sign for the plaintiffs. It shows the defendants are very concerned with the next group of plaintiffs.

If you have a DePuy Pinnacle or questions about the litigation, please feel free to give us a call.

DePuy Pinnacle 2016 Trial Update 19: July 29

The Fifth Circuit  denied the motion for an expedited appeal lodged by co-defendants Johnson & Johnson and  DePuy.   

Hi,  Stuart Talley  here and I have another update on the ongoing DePuy Pinnacle hip trial. Today, we received word  from the  Fifth Circuit Court of Appeals regarding  DePuy’s request  that the court of appeal expedite  the appellate process with  respect to their appeal of the last  verdict.  The  Fifth Circuit denied the request.  

This means  that  the appeal will most likely take several years  to resolve.  In the meantime,  trials will continue to occur  in the trial court.  We have a trial date set  in September  for the  next round  which is now  six  plaintiffs who all reside in California.   This trial will move  forward  as scheduled.  

This is good news for the plaintiffs.  We did not want an expedited appeal.  There  are an  enormous  number  of legal issues  and those issues need to be fully briefed  before the appellate court  can  decide.  An expedited  procedure would put us at a  disadvantage in that process especially  considering  we are having a  trial  coming up  in just a few months.

As we get more orders from the Fifth Circuit,   we will provide updates as well as updates on the upcoming  trial.

DePuy Pinnacle 2016 Trial Update 18

Hi, this is Stuart Talley. I am here to provide another update on the ongoing DePuy Pinnacle metal-on-metal hip litigation. Recently, we received a scheduling order from the trial court setting a schedule for events that need to take place before the upcoming trial.

The trial involves seven individual plaintiffs who reside in California. The trial date was originally set for early September but the judge moved it out to September 26, 2016; this will be the first day of trial. Jury selection is going to start on September 19 the week before.

The schedule the judge put in place is strict. The defendants are not pleased and filed another petition to the Fifth Circuit Court of Appeals asking them to halt the entire process. Under the schedule, the plaintiffs need to disclose all of their experts by July 29, about a week from now. After they disclose their experts, the defendants will have only ten days to take depositions of those experts. Then, they will have to submit their reports which are due approximately 22 days from now.

The defendants claim in their brief to the Fifth Circuit Court of Appeals that they still don’t have all the medical records from the selected plaintiffs. They are complaining that they have not taken the depositions of the doctors or the plaintiffs at this point. It is unclear why the defendants did not go through these steps earlier. They have had the names of these plaintiffs for quite some time. They could have gotten the records, they could have taken depositions, and they could have done a lot more up to this point.

The court is taking a firm stance in pushing this case forward. The judge has appointed a magistrate to have telephone calls with the parties every single week to talk about where we are in discovery, where we are in expert reports, and how things are progressing.

I don’t think the trial court is going to put any brakes on this process. It’s possible the appellate court might and we are waiting to hear from them. So, stay tuned. When the Fifth Circuit Court of Appeals rules, we will provide another update.

$8.3 Million Verdict Upheld in DePuy ASR Trial

Thursday, July 21, 2016: The California Court of Appeal upheld a $8.3 million judgment against DePuy Orthopaedics, a subsidiary  of Johnson & Johnson, in the first case to go to trial involving the recalled DePuy ASR hip implants.  The case is Kransky v. DePuy  Orthopaedics.

DePuy Pinnacle 2016 Trial Update 17: July 07

Hi, I am Stuart Talley doing another video on the DePuy Pinnacle metal-on-metal hip trials that are currently ongoing. Today, we received a final judgement on the five cases recently tried to a jury that resulted in a $500 million verdict.

If you’ve been watching our videos, you know that the $500 million verdict was made up of two elements. The first: $140 million are compensatory damages (damages that are designed to compensate the individual plaintiffs for their injuries). This includes pain and suffering, economic losses, medical bills, etc. The second: $360 million in punitive damages (damages designed to punish the defendants for intentional conduct. In this case, the jury found that what DePuy and Johnson & Johnson did with these hips was intentional or reckless, and that is why they awarded punitive damages. It is to try and deter these companies from engaging in similar conduct in the future.

Unfortunately, the judgments today reflected the fact that under Texas law punitive damages are capped. There is a complicated formula that caps them. But at the end of the day, the total punitive damage award was reduced from $360 million to only $10 million. In the context of a company like Johnson & Johnson and DePuy, a $10 million punitive damage award is not much.

Johnson & Johnson and DePuy have $68 billion in assets. This is testimony that came out during trial. If you think about how much money you need to award a plaintiff to punish someone who has $68 billion that is difficult to assess. However, if you think about it in the sense for someone who is walking around on the street that has $68,000 in the bank, how much money do you think it would take to punish that person to get them to realize they had done something wrong and alter their behavior? If you think about somebody with $68,000, the punitive damage would be just $100. This is the equivalent of a $10 million punitive damage verdict against Johnson & Johnson.

This case illustrates how caps on any type of damages, and especially punitive damages, really can result in an injustice and allow corporations and large businesses to get away with conduct that normal people would never get away with. This situation is a good example of when those laws go wrong.  The upcoming case is in September with seven individual plaintiffs. All these plaintiffs reside in California. Therefore, California law will apply and there will be no caps on punitive damages.

Stay tuned. When this trial starts, we will provide current updates. We will also be providing updates on the appeal of the current judgments that came out today. DePuy has appealed these judgments.

DePuy Pinnacle 2016 Trial Update 16: July 5

Hi, this is Stuart Talley providing another update on the DePuy Pinnacle metal-on-metal hip cases that are currently being tried in Dallas, Texas. Today, we received an order from the trial court judge indicating that he was denying all of the post-trial motions that had been filed by DePuy to overturn the verdict that occurred in the second bellwether trial.

In the same order, he also addressed DePuy’s request that the litigation be stayed while they appeal the verdict in that second bellwether trial. The judge denied the request to stay the litigation pending their appeal. Specifically, the defendants asked for a stay of the cases that are supposed to go to trial in September. In September, there will be seven cases tried to a jury; a single jury and seven individual plaintiffs, all of whom are California residents.

In the order, the judge was very adamant that he was not going to stay the litigation. He indicated that there are approximately 8,000 cases pending; cases pending more than five years. And if the judge stayed the case every time the defendant lost a trial, the litigation would take an eternity to resolve. In his order, he also noted that the average age of individuals who have a DePuy Pinnacle hip case is 68 years old. The judge was very mindful of the fact that he needed to move the cases forward.

With respect to the numerous evidentiary objections that DePuy raised in the underlying trial, the judge was very dismissive of those objections. In other words, in the order he indicated he did not believe that DePuy really had any chance to win their appeal, which you would expect from a trial court judge whose decisions are being appealed to a higher court. In the order, he referenced the fact of DePuy’s effort to introduce testimony that their product performed well in Europe, that there was good published literature, and that they’re a good corporate citizen. The fact that DePuy attempted to introduce that evidence opened the door to much of the evidence they objected to at trial.

So, the judge was good in explaining his decisions and why he was not going to stay the litigation. As I mentioned, the next trial is coming up in September with seven individual California plaintiffs. This next trial is significant because there are no caps on punitive damages. We could see a big verdict if the plaintiffs do well at trial.

Stay tuned. We still have a decision from the fifth circuit court of appeals who is considering the decision. We will provide another update once we hear from the appellate court to determine if the case will move forward in September or if it will stay the litigation.

DePuy Pinnacle 2016 Trial Update 15: June 24

Hi, this is Stuart Talley. I am doing this video today to provide an update on the ongoing DePuy Pinnacle metal-on-metal hip litigation. As you may know, there was a trial that went to verdict a few months ago. The verdict was for the plaintiffs for several hundred million dollars.

The judge has ordered a new group of cases to go to trial in September this year. The new group will be seven individual plaintiffs all from California. Recently, we received word that DePuy filed a motion with the Fifth Circuit Court of Appeals asking that the next trial not move forward as scheduled. They are asking for a stay of the litigation until their appeal on the last verdict is decided by the court. The argument they are making is that if there were errors committed in that last trial they should be resolved before we go through the time and expense of the next trial.

This is a judicial economy argument. It’s very unlikely that the Fifth Circuit Court of Appeals will grant the motion. There are several thousand cases pending. If the litigation comes to a halt each time there is verdict on appeal, the cases will never resolve. It could be years and years.

At this point, we are still waiting for a decision from the Fifth Circuit Court of Appeals (we anticipate approximately two months). When we get a decision, we will provide another video giving an update on that development.

If you have a DePuy Pinnacle, or underwent revision surgery, contact us for a free case consultation or with any questions regarding the trial.

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