Cobalt Chromium Toxicity Resource Center

DePuy Pinnacle Trial Update Four (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.

Today at trial, there was continued testimony from Andrew Ekdahl, ex-CEO of DePuy. The plaintiff’s attorney is unraveling the defense’s argument stating the risks of metal on metal hips were well known to the medical community. During opening statements, the defense attorney claimed everyone knew of the issues associated with metal on metal hips and they were well studied for 75 years. The plaintiff’s attorney presented Mr. Ekdahl with multiple internal DePuy documents indicating DePuy engineers and scientists repeatedly acknowledging the risks of metal ions, particularly cobalt and chromium, and the biological impact they have on the body is not well known, well studied, and more research is necessary. There are a myriad of documents demonstrating DePuy did not know the impact of metal ions before they launched the Pinnacle. There are other documents revealing people proposed performing studies and undergoing research regarding these issues, months and years the DePuy Pinnacle is released on the market. Mark Lanier, the plaintiff’s attorney, did a powerful job of presenting this testimony and evidence to the jury.

Mr. Lanier also discussed advertising for the DePuy Pinnacle. The Pinnacle was highly advertised. It was advertised directly to consumers, doctors, and even magazines. Mr. Lanier addressed numerous claims in the advertising as bogus. Mr. Ekdahl, the defense, did not concede they were bogus. But it was obvious from testimony, witnesses, and documents the claims were bogus. The claim that 99.9% of the hips survive for 5 years after implantation was considered the most bogus; statistics presented in the trial show this is false. There was also a document presented to the jury from the early 2000s. The document confirmed scientists, who studied problems with metal on metal hips, recommended to DePuy it was vital surgeons and patients were warned of the risks associated with metal debris, and the unknown nature of how it impacts the body. Mr. Lanier presented ads, brochures, and other marketing material provided to doctors and patients. He pointed out that none of the materials contained the “vital warning” from DePuy’s internal memos.

The other picture painted during testimony illustrated DePuy’s position in the industry during the time the Pinnacle was launched. DePuy did not have much market share when the Pinnacle was launched. Their market share position was low ranking and they struggled.  The documents show the metal on metal version of the Pinnacle was DePuy’s ticket; their foothold into the industry. At the time, their competition did not have metal on metal hips. Over time, this greatly increased their market share, and revenue, since they sold over a billion dollars’ worth of hips per year. The documents also showed the metal on metal hips comprised 50% of their revenue during this time period. DePuy had the big incentive to rush this product on the market with no concern for testing or anything which would hurt their sales.


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