Cobalt Chromium Toxicity

depuy pinnacle trial update

DePuy Pinnacle 2016 Trial Update 13



Hi, this is Stuart Talley. I am here to provide an update on the ongoing DePuy Pinnacle metal-on-metal hip litigation currently pending in Dallas, Texas. If you’ve been following my updates, you know there was a recent verdict in a case on behalf of five plaintiffs who were a combined value of $500 million. Since that verdict, a couple months ago, there have been a series of post-trial motions that were filed by the defendant to have the verdict overturned and to request a new trial. I want to go over those motions and discuss them.

The first one is probably the most important in the litigation is a motion by the defendant to limit the damages that the plaintiffs shall receive. The verdict in the case and the jury awarded punitive damages. These are damages that are intended to punish the defendant for their conduct. The award was $360 million combined for the five plaintiffs. Unfortunately, Texas has a strict law that limits punitive damages. All of the plaintiffs in this case were from Texas and the Texas cap on punitive damages applies to their case. The formula for capping those punitive damages is a little complicated. It is based on what your economic damages are and the award cannot exceed two times your economic damages, and they cannot exceed general damages, pain and suffering damages. There is a cap of $750,000 on those types of damages. So, you add two times the economic damages plus the $750,000, which applies to most of these cases, and that’s what you end up with. So, the net result of all of this is that the $360 million punitive damage award will likely be reduced to $8.6 million. In the context of Johnson & Johnson, and DePuy, a punitive damage award that low will have no impact at all on their corporate behavior which is the intent of a punitive damage award, to punish a defendant. These companies combined have a net worth of more than $68 billion. So, $8 million is a very small number for them.

On the bright side, we have another round of trials coming up. The next group of trials will be for five plaintiffs and the Judge has asked for five plaintiffs from California. Those cases are currently being worked up and they are in the system. That is the next group of cases that will go to trial. California has no caps on punitive damages. So, these caps that applied in the most recent verdict will not apply in the next case.
The second motion that was filed is the defendants argued that the jury verdict should be overturned on the grounds of the statute of limitations. The statute of limitations (SOL) is the time period in which you have to bring a case. In Texas, it’s 2 years. What is galling about the argument being made by DePuy and Johnson and Johnson here is that in all of these hip litigations that have been pending, the ASR and Pinnacle litigation, they have consistently taken the position on the issue of settlement that they would never settle a case if the person did not have revision surgery. But now they are telling the court that in order for you to bring a claim, you have to bring it within two years of the date that you first started experiencing pain with your hip. So, they’re arguing that the trigger date for the SOL is not the date that you had revision surgery but the date that you first had any symptoms at all that related to your hip failing. The jury in the case found that this was not the start date for the SOL, and that the start date was the date that they had revision surgery.

Now, the law in Texas is very good for us on this issue. In order for a cause of action to accrue, you have to be aware of your injury and you have to be aware of the cause of your injury. There was lots of evidence given in the case that the fact that somebody’s hip hurts doesn’t necessarily mean that the defect with the DePuy Pinnacle hip is what’s causing your hip to hurt. There are all kinds of reasons a prosthetic hip can cause pain that have nothing to do with the shedding of cobalt and chromium. It could have been implanted incorrectly, there could be a leg length discrepancy, the person could have tendonitis; there are a whole bunch of reasons why a hip can hurt that have nothing to do with metallosis. And in most of these cases, a definitive diagnosis of a failed metal hip does not occur until the surgeon actually goes inside and looks to see what the hip is doing. I am not too worried about this second motion.

The other motion the defendants’ filed was they wanted a new trial because the jury was not instructed on a very specific statute that basically gives the defendants a presumption that their product is not defective if the product is approved by the Food and Drug Administration (FDA), and the defendant can show that the FDA was given all of the relevant information about the product before they got it approved.

The opposition to that motion was that, first of all, these hips were never “approved” by the FDA. The word approved has a specific legal meaning. There are some products that are approved by the FDA. The FDA requires clinical testing in a long process called the pre-market approval (PMA) process. The FDA will look at these tests, look at the design, and decide that the product is not defective and allow its release to the public. The Pinnacle metal-on-metal hips were not approved through the PMA process. They were approved through a “fast track” process in which the manufacturer essentially tells the FDA that the product is substantially similar to something else they already approved, and that’s how this product got on the market. In the past, the Judge has indicated in other motions that the fast track process of getting a medical device on the market is not FDA approval. So, the presumption does not apply. I think this is a sound judgement that is well supported by the case law that has specifically looked at this issue.

The last motion they brought was a motion for new trial that had different grounds in it. The first one was that the jury verdict was too high. The argument was that it was a runaway jury; there’s no way that the damages that these plaintiffs suffered support a verdict that is as high as they received. The standard for overturning a jury verdict, or reducing the jury verdict, in Texas is very high. You have to show that the jury was biased, that they were motivated by passion. It has to be a situation that shocks the conscience. I don’t think that the judge is going to reduce the verdicts in this case other than the punitive damage verdicts.
On the second argument that was made in this motion, the defendants were unhappy with the fact that five cases were able to be tried in one trial. They thought it caused jury confusion and that it influenced the jury because there were five people who suffered similar injuries. So, the standard on that issue is also good for the plaintiffs. The Judge has a lot of discretion especially in a case like this where there are thousands of lawsuits pending and involving the same product. The Judge has discretion to implement mechanisms to make the process go faster. He has the discretion to implement processes so that there’s judicial economy. Trying thousands of these cases could clog the courthouses in this country for years and years. So, by trying five cases at a time it saves everybody money; saves the plaintiffs money, saves the defendants money and saves the court system time and money. So, I don’t think that argument is very well taken.

There were numerous pieces of evidence that were admitted during the trial that DePuy thought should not have been admitted and they want a new trial as a result. Specifically, there were references to the deferred prosecution agreement. This was an agreement that DePuy entered because they were paying bribes to doctors. That was admitted into evidence. There was a reference to cobalt and chromium potentially increasing the risk of cancer. That was brought up during trial as a reason why someone would want to have their hip revised, if they had high cobalt or chromium. The argument was that if someone had high cobalt and chromium it would be reasonable for them to want their hip removed because of the fear it could increase your risk of cancer. There are no studies linking cobalt and cancer but that doesn’t mean there is no increased risk of cancer.

There was argument at trial, or evidence presented, concerning the fact that there were thousands of lawsuits that have been filed against DePuy. There was reference to the DePuy ASR hip which is a hip that’s very similar to the Pinnacle that was recalled. So, all of these small evidentiary issues the defendants had a problem with and they asked the Judge for a new trial. The argument they made is that these pieces of evidence being admitted and presented to the jury bias the jury against them. The Judge in prior motions during the middle of the trial has already ruled that none of these pieces of evidence that were admitted were done so improperly and denied the defendants motions already on numerous occasions concerning these items. So, I don’t expect the Judge to change his mind on these issues.

The defendant has filed a motion to stay the overall litigation. So, they’re asking the Judge not to let any more cases go to trial until the appeal of this verdict works its way through the appellate court system. If that motion is granted, it would put thousands of cases on hold for probably three to four years. Nothing would happen, settlement would be very unlikely to occur during that time period. It is highly unlikely the Judge is going to grant that motion because it would put a screeching halt to the litigation. In fact, the signals we are getting from the Judge is that he is moving the other direction. He wants another round of five cases to go to trial.

So, that’s where we are in the cases. When we get orders from the Judge on these motions, we will do another video. We will try to keep you updated on the appellate process and how that’s progressing. But things are moving along. We all wish things would move quicker but the process takes time.

DePuy Pinnacle 2016 Trial Update 12



Hi, this is Stuart Talley here to do another update on DePuy Pinnacle metal-on-metal hip trial. As many of you know, there was a verdict in the case a few weeks ago in favor of the five plaintiffs that had their case tried to a single jury. From that point, DePuy and Johnson and Johnson have released statements to the media about their chances on appeal. There is a lot of discussion about the appeal, and whether DePuy and Johnson and Johnson will win. The reason I wanted to do this video was to provide an update and analysis on what the chances are that DePuy and Johnson and Johnson will win on appeal.

It’s very difficult to say what an appellate court will do. I can tell you that the 5th Circuit Court of Appeals, which is where the appeal will be heard in Texas, is notoriously a very conservative jurisdiction. It’s not a very good appellate court for plaintiff’s attorneys or plaintiffs. However, that being said, there are a couple of important things to remember. First, the trial court Judge who decided this case is a well-respected conservative Judge. He was a Judge appointed by George W. Bush and he’s been on the bench for a long time.

Second, one of the arguments Johnson and Johnson makes, and you see this repeated in the media, is about how unfair it was that five plaintiffs got to try their cases in a single trial. There is a lot of authority where Judges have the ability to consolidate cases for trial for judicial economy; meaning if it’s quicker, cheaper and easier for the judicial system to try groups of plaintiffs together in one trial, it is permitted. If you look at the status of the litigation and what would happen if you had individual trials for all seven thousand people, it would take a hundred and thirty years to try these cases. I think the argument that DePuy and Johnson and Johnson are likely to make at the appellate court is probably not going to go very far. An appellate court that determines multi-plaintiff trials are impermissible would basically open the door for unlimited, inefficient litigation that could last years and years in cases like this.

The other information Johnson and Johnson and DePuy have disseminated into the media is the size of the punitive damage award. First of all, under Texas law, those punitive damages will be reduced. The amount and extent of reduction is unclear at the moment but it will be substantially reduced. You have to assess the relationship of the actual damages to the punitive damages. This is the standard the court will use to determine if the punitive damages were too much. In this case, you have a situation where the punitive damages were three times the amount of the compensatory damages. This is not a big number. The US Supreme Court uses “ten times” as a benchmark- where the punitive damages award that is more than ten times is considered too high. The amount of the punitive damage award is only 0.3% of Johnson and Johnson’s net worth. It’s not one of these runaway Juries with a crazy punitive damage award that will far exceed what is rational, so to speak.

Now, a question people have asked is, “Will there be a good argument that the Jury was confused or misled in the litigation?” because there were so many plaintiffs being tried and there was a lot of evidence introduced. It is important to note that this is an intelligent Jury. There were several professionals and PhD’s, people on this Jury that are not going to be confused, they are not going to be bamboozled. This was a Jury that the defendants probably would like before the trial started.

It is difficult to say what will happen next. There were a lot of controversial rulings that were made during the trial, and it is difficult to know how an appellate court will decide. But I think that what people are reading about Johnson and Johnson’s chances of success on appeal may be a little over stated by Johnson and Johnson.

​The next thing that will happen is Johnson and Johnson will file motions for new trial, probably another motion for mistrial (they filed seven or eight of those during trial), and they are going to be filing motions to have the Jury verdict overturned. All of these motions go to the trial court. It is very unlikely these motions will go anywhere. The real decisions will be made at the appellate court.

DePuy Pinnacle Trial Verdict and Your Case


Hi, I  am Stuart Talley.  I am  the partner responsible for the DePuy Pinnacle hip litigation.  I am doing this video today to provide an update  after receiving  lots of calls from people asking, “What does the verdict  in the DePuy Pinnacle Trial impact our claim?”

This  verdict puts  a lot of pressure on DePuy  and Johnson & Johnson to settle the pending cases  in the MDL.  There are approximately  8,000 people who have lawsuits on file. Some of these individuals have undergone revision surgery, and others have not.

In the past,  DePuy  took the position of  settling cases for people who have had revision surgery such as with the DePuy ASR.   DePuy’s mindset with the  Pinnacle is that they would never settle a case.  But this verdict  really puts pressure on them to take action.

I assume this verdict will  renew  settlement discussions.  I don’t think there have been  settlement  discussions at this point. Hopefully, this will bring DePuy to the table  to discuss possible resolutions  for these cases.  One thing to consider,  even if DePuy thinks they can win  95%  of these cases,  5 out  of 100  cases with  a $500  million dollar  verdict  could bankrupt this company.  So,  the  problem with this situation from DePuy’s standpoint is there are many cases they need to deal with.

If you have a  Pinnacle hip, I would  suggest you  give us a call especially if you do not have a case on file. It’s important to have a case on file to protect your legal rights  and to ensure you can participate in a settlement, should one occur down the road.

Jury Awards Plaintiffs $500 Million in DePuy Pinnacle Trial


Hi, this is Stuart Talley.  We have some  breaking news about the DePuy Pinnacle metal-on-metal hip trial currently pending in Dallas, Texas.  We received word the jury has come back with  probably the biggest verdict  in any hip case to date.

The verdict came back at $498  million dollars against Johnson & Johnson and DePuy.  This case was brought on behalf of  five individuals . If you look at the verdict, it was $498 million and approximately $360 million of that was punitive damages, and the rest was compensatory damages for each of the five plaintiffs.  The average compensatory verdict for these five plaintiffs was about $27 million dollars.

With respect to similar cases, that have gone to trial, this is by far the largest  compensatory verdict.  It’s also the largest punitive damage award to date.  Many attorneys, including myself, who have been watching this trial  are not really surprised by this outcome. The trial went very well for the plaintiffs.

The evidence that came out  was shocking  in regards to  what DePuy did with the Pinnacle hip. There were lots of emails and internal documents showing DePuy actively tried to conceal problems  with these hips from doctors . They engaged in nefarious  conduct  in terms of the marketing of  this product. There were allegations that clinical trials  were falsified, and advertising was based on these falsified clinical trials.  A  lot of doctors were bribed and given money to  use this hip and tell other doctors it was a great  deal.  Some doctors received millions of dollars. One of the main witnesses received  for the defense received over $7.5 million dollars in royalties from DePuy.

We have a verdict which is a positive development in the case  for plaintiffs.  Many have asked us, “What happens next?” I can tell you that DePuy has said they would never settle  these cases. This was the position they took  at the very beginning. They took the position that this hip was different than  their other metal-on-metal hip, the DePuy ASR.  The problem with not wanting to settle cases is that if you keeping getting hit with a $500 million dollar verdict, you cannot keep that up.  Johnson & Johnson has to  face that not only was there a $500 million dollar verdict in this case,  but also that there are  8,000 more cases. If DePuy keeps trying cases, and even if they win  90%  of those cases,  if they get hit with a $500 million dollar verdict  (every  one  of a  hundred  cases), that’s a large problem for the company.

So, this verdict puts a lot of pressure on DePuy : shareholders will  start to ask questions and they are under pressure to  resolve this.  The one concern I have is that Johnson & Johnson may have some hope in appealing this verdict and they will certainly appeal it. There were some controversial rulings by Judge Kinkeade, and they are thinking they can get this verdict overturned.  However, the issue for DePuy is that this  is a two year deal. It takes at least  two years for an appeals process of this  magnitude.  In the meantime, there are  upcoming trials.  Judge Kinkeade has indicated  that he wants  another five cases lined up for the Fall.  This puts a lot of pressure on DePuy to come up with a reasonable solution to this problem.

The other problem  is the defense costs.  When you defend one of these cases,  even if  Johnson & Johnson wins one of these  trials,  they are spending millions of dollars on each trial.  They spent millions of dollars on experts for this first trial. They have a team  of lawyers who are billing them $600-$1000 an hour  in the courtroom  everyday for  10 weeks. Those costs add up.

This verdict is very good for the plaintiffs .  It definitely is encouraging and hopefully will bring DePuy and Johnson & Johnson  to the table  to compensate people with  legitimate  claims. If you have a DePuy Pinnacle hip, and have questions about the trial and verdict, feel free to give us a call toll free at 888-817-2527 and we will get back to you immediately.  Thank you.

DePuy Pinnacle 2016 Trial Update: Jury Deliberations


Tuesday, March 15- Today is Day 3 of jury deliberations and there is no verdict. The jury continues deliberations which began last Thursday, March 10. The Court’s jury charge (a verdict form the jury is asked to fill out regarding the case) is over 40 pages. It includes different questions with many sub-parts involving each of the 5 plaintiffs along with associated consortium claims (claim for damages suffered by the spouse or family member of the plaintiff injured because of the defendant’s negligent, intentional, or otherwise wrongful acts.)

In the first trial against Johnson and Johnson’s DePuy over Pinnacle hips, the jury awarded a verdict in favor of DePuy. After a seven-week trial, the jurors needed about two days to deliberate. However, the complexity of this case, number of plaintiffs, and the court’s jury charge contribute to the length of deliberations. We are hopeful for an outcome in favor of the plaintiffs.

In addition, many  have  asked us if the jury was informed of how many people had been injured by these hips.  Multiple times during the trial, the plaintiffs made reference to the fact that there were thousands of similar lawsuits pending on behalf of people whose hips were revised. The defendants repeatedly objected to this and, on several occasions, moved for a mistrial. The judge denied all of these motions.

DePuy Pinnacle Trial Update (Week 5 9/29-10/2)


The defendants filed their second Motion for Mistrial on Saturday, September 27th. On Monday, September 29th, the defendants finished cross examining Scott Bayley, an economist. He was followed by John Paoli, the plaintiff’s husband. Two additional witnesses will take the stand: Dr. Greg Sawyer, a tribologist, and Dr. Vicki Colvin, a cell biologist.  The Defense called Dr. Scott Nelson, an orthopedic pathologist, as their first witness. Plaintiffs will continue their presentation of their case at a later date.

Dr. Scott Nelson, defense orthopedic pathologist, returned to the stand for continued direct examination on Tuesday, September 30th.  He was then cross examined, subject to redirect, and excused.  His testimony was followed by defense witness Dr. Pat Campbell, UCLA Professor of Orthopedic Surgery.  She returned on Wednesday, October 1st, and took the stand for the day. She concluded her testimony on Thursday, October 2nd. Defense witness Dr. Matthew Henrich, an orthopedist specializing in hip and knee replacements, followed. His testimony was halted and the plaintiffs called Dr. Vicki Colvin to the stand. Dr. Heinrich will return to the trial at a later date.

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