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pinnacle hip

DePuy Pinnacle 2016 Trial Update 10

Hi, this is Stuart Talley here with another update on the DePuy Pinnacle hip trial currently ongoing in Dallas, Texas. We’ve almost reached the end of the road; it’s been 10 weeks of testimony, more than 30 days of actual court time, and the parties today gave closing arguments to wrap up the case. Both the plaintiffs and the defendants gave closing arguments. Now the jury has the case and we’ll see how long they deliberate and come up with a decision. The closing in this case was somewhat unique. The judge ordered tight time constraints on the closing argument. Each side had an hour and 45 minutes to tell their story after 10 weeks of trial arguments. The lawyers are quick and succinct with their arguments.

The plaintiffs’ attorney basically continued on a theme that they’ve had throughout the case which is that DePuy really rushed this product on the market; the only reason they came out with a metal-on-metal hip was because they knew their competition would release something and they wanted to beat them to the punch. There is a document the plaintiffs point to repeatedly indicating that it was important for DePuy to beat the competition to the punch with the metal-on-metal hip. So, they put it on the market without adequate testing and without even knowing what metal ions could do to the tissue. This was admitted at the trial.

The second theme that they had and that they expanded upon was that this was an experiment gone badly. Again, DePuy didn’t know the impact metal ions would have on tissue. They knew their metal-on-metal hips in the past had failed but they released it anyway and they released it, like I said, to beat the competition to the punch.

Another theme that was pushed heavily by the plaintiffs in the case was that DePuy knew there were problems with this hip and knew it was causing problems in patients. Specifically, they knew it was causing metallosis and tissue damage. But they did everything they could to hide that from the medical community. The plaintiffs’ attorney spoke about the bogus studies that were done, such as the pin study. The studies had many irregularities and were deceptive. They talked about the advertising were DePuy told doctors that the hip was successful in 99.9% of the patients that received it. I think the plaintiffs did a good job of showing that wasn’t true. They talked about the doctors who received millions of dollars in consulting and royalty agreements. They were supposedly “design” surgeons but it turned out that these doctors were really receiving money to promote and use the hip. They had agreements that required them to use the hip and they were paid millions. Some of the surgeons made over 40 million dollars “consulting” for DePuy.

With respect to damages, there are five plaintiffs in this case. The closing argument was interesting because the plaintiffs’ attorney did not ask for a specific amount of money for any plaintiff. They left it up to the jury to decide how much each plaintiff should get. The types of damages the plaintiffs can get in these cases are medical bills, and future medical bills. But the real big number is for their pain and suffering. All the plaintiffs had their lives substantially impacted as a result of these hips, and the revision surgeries and all the problems they suffered. Many are unable to enjoy activities they were able to do and cannot enjoy life the way they used to. Many are in constant pain for the rest of their lives. The only linchpin the plaintiffs’ attorney gave to the jury was an effective argument. They argued that when the jury goes back to deliberate, they need to figure out how long each one of these plaintiffs is expected to live. They have a chart to calculate. The argument was made that the jury should look at pain and suffering that people will have to experience on not just a yearly basis but a daily basis. What is fair compensation to be in pain for a day? What’s fair compensation to be in pain for an hour? The linchpin and guidance for the jury was an argument that DePuy’s experts were paid $1,000 an hour to testify, and so the plaintiffs’ attorney argued that whatever you give the plaintiffs, on a daily basis, should be more than what DePuy’s experts make in an hour.

There was also an argument made that punitive damages should be awarded. Punitive damages are the amount a jury can award against a corporate defendant to punish them. The idea behind punitive damages is that if you award a large amount the company will stop engaging in the conduct in the future. Punitive damages are only available if you can show that the company committed fraud or knowingly hurt people with a reckless disregard for their safety. With respect to Johnson and Johnson, and DePuy, the plaintiffs’ attorney explained that the company is worth 69 billion dollars. This enormous number is very difficult for people to wrap their head around. So, the jury was told to consider what would happened if you were dealing with someone who had $69,000 and you were trying to punish that person. If you awarded $100, even $200, in punitive damages against that person that really wouldn’t be much of a punishment. When you convert that into Johnson and Johnson’s realm, and their 69 billion dollars, which comes out to 200 million dollars. 200 million dollars for Johnson and Johnson is analogous to the $200 for someone who has $69,000. That’s all that was said and I think that the idea behind the argument was that there is an effort to get the jury to see that something in the hundred million dollar range is not sufficient to punish DePuy. It must be an amount in the billion dollar range. We will see whether or not the jury will award punitive damages. I think a strong case was made for it.

The defense made a closing argument as well. They argued that DePuy is a really good company, inventing medical devices that have helped many people over the years. The stated the plaintiffs went through 90 million pages of documents, and they found bad emails and incriminating evidence but that you should look at the overall context of this company. They argued they were trying to help people with the metal-on-metal hip. The real focus on the defense argument in this case is causation. The real question is, even if you assume this hip is defective and shedding metal particles, is that why each of these plaintiffs needed a revision surgery? Is that why they had problems? For each plaintiff, they went through reasons why they think the person’s problems with their hip was not related to metal particles. For one plaintiff, they said the hip was not stable, it was loose, and that is why there was metal wear debris. That’s the only plaintiff they admit that metal wear debris has anything to do with their problems. But because the hip was unstable it was the surgeon’s fault, not theirs. The second plaintiff they said had sarcoidosis, an inflammatory disease, and that is why they had problems with their hip. They said the third plaintiff had a hypersensitivity reaction to metal particles. In essence, they argued the person had an allergic reaction to metal and that’s why they had problems. They stated the last two plaintiffs probably did not need revision surgery, their problems had no relation at all to metal particles, and their surgeons performed an unnecessary revision surgery. After the defense gave their closing statement, the plaintiffs had a chance to do a rebuttal closing.

On rebuttal, the argument was effectively made that the experts hired by DePuy were Jukebox witnesses; these are witnesses where you put the money in and they play what you want to hear. In this case, it is important to note that all the treating surgeons said that the person was having a reaction to metal wear debris and that they need the revision surgery because of problems with the hip. There was also a discussion of what the defect is. During the defendant’s closing argument, they argued the hip was not defective. This was undermined by the plaintiffs’ attorney who explained that the problem with this hip was that it’s metal-on-metal. You should never have a situation where two pieces of metal are rubbing against each other inside the human body, which would seem to be common sense. The evidence that it is defective is based on the fact they no longer sell it. The Food and Drug administration (FDA) has specifically said these products cannot be sold unless you do clinical trials before it’s released.

At the end of the day, the plaintiffs came out with a good argument in closing. The documents discovered are bad for DePuy, and the amount of money paid to experts and consultants are really going to impact this jury. However, you never know what will happen regarding a trial and jury. Anything is possible. We are waiting for a jury verdict. We will see what happens, and when the verdict comes in, we will provide another update.

DePuy Pinnacle 2016 Trial Update 9

Hi, this is Stuart Talley here today for another update on DePuy Pinnacle MOM trial ongoing in Dallas, Texas. First of all, I wanted to thank everybody for the nice comments we received from watching our videos. We’ve received lots of comments and I appreciate that. I wanted to mention that it’s important to understand we aren’t providing updates every single day of every single witness. We are providing highlights. So, whenever there is an important, significant witness who testifies, we try to do an update. We try and do them as often as we can.

Today, I wanted to talk about a witness that the defense called to the stand. We are now ten weeks into this trial and the defendants are really putting on their case right now, and it’s basically a series of experts one after another. One of the witnesses they put on is a pathologist named Scott Nelson. Dr. Nelson works with a microscope in an orthopedic lab and reviews tissue samples. As a pathologist, he looks at tissue samples and describe what is causing a tissue reaction, and essentially what’s being observed. Not surprisingly, Dr. Nelson looked at tissue samples from the five plaintiffs that were taken out during their respective revision surgeries, and in his opinion, none of them had a reaction to the metal wear debris from their hips. There was only one exception; he said one of the plaintiffs did have a reaction to the metal wear debris but this was caused by a loose hip. According to Dr. Nelson, once again, this is not DePuy’s fault.

There is an interesting incident that we’ve seen in other cases. For one of the plaintiffs, the pathology showed a tissue reaction to metal wear debris but a very small amount of metal wear debris, according to the pathologist. We’ve seen this in other cases where DePuy argues that the patient has a hypersensitive reaction to the metal wear debris. DePuy characterizes the symptoms as an allergic reaction, placing blame on the individual and away from themselves. DePuy makes the comparison of someone who is allergic to peanuts, and if that person gets sick, they cannot sue the peanut company. This is DePuy’s story. However, there are lots of holes with this theory. This cannot be called an allergy since there are so many people who are having reactions to the metal wear debris. On cross examination, the pathologist admitted that it’s not really an allergy. For instance, one analogy is if someone gives you rat poison, and you got sick, we would not say you’re allergic to rat poison. Your body would adversely react but it is not considered an allergic reaction. So, this point is made on cross-examination of Dr. Nelson.

Dr. Nelson’s other opinion was that one of the plaintiffs suffers from sarcoidosis. Sarcoidosis is an inflammatory condition in which there is growth of inflammatory cells (granulomas) in different areas of the body- prevalent in the skin and other organs. Dr. Nelson states he saw granulomas on one of the plaintiffs’ tissue samples that was consistent with sarcoidosis. Problems with his diagnosis were made abundantly clear during cross examination. The plaintiff’s tissue samples were seven years old. So, the pathologist didn’t have only one slide of a granuloma that was definitive for sarcoidosis. He went back through the plaintiff’s medical records and said this patient has had it intermittently for years. He substantiated his diagnosis because the patient had a headache once, and another time he reported night sweats. The pathologist used this “evidence” as a sign that the plaintiff had sarcoidosis.

On cross- examination, the plaintiffs’ attorney did a very good job of laying the picture of the plaintiff’s medical history, a guy who is 70 years old, and stating that Dr. Nelson basically went through a mountain of medical records, found a couple ailments, and then diagnosed him with sarcoidosis. The most effective information revealed on cross examination was when the plaintiffs’ attorney pointed out that none of the five plaintiffs’ treating physicians had the same opinion as Dr. Nelson. All treating physicians testified under oath that what they observed during revision surgeries was consistent with a reaction to metal wear debris. All of them had seen this in other patients and they saw this reaction in the five plaintiffs. There are numerous doctors that treated the five plaintiffs and none of them had the same opinion as Dr. Nelson.

Dr. Nelson is a hired gun, paid $375,000 and funded by DePuy in the past to publish papers. The plaintiffs’ attorney described that Dr. Nelson was essentially hired to come up with a diagnosis, and say or do anything that would let DePuy off the hook. Today, was a good day for the plaintiffs because they did a good job of discrediting this expert.

Stay tuned for more updates on the DePuy Pinnacle Trial.

DePuy Pinnacle 2016 Trial Update 8

Hi, Stuart Talley here doing another update on the ongoing DePuy Pinnacle metal-on-metal hip trial that’s currently pending in Dallas, Texas on behalf of five plaintiffs that are suing DePuy for problems with their hips. We are no more than 30 days into the trial, actual 30 trial days, more than nine weeks of testimony the jury has heard at this point in the case.

We are fully into the defense case, the defense are putting on witnesses to try and argue that the problems with the plaintiffs’ hips were not the result of the Pinnacle metal-on-metal design that they received. They’ve called lots of expert witnesses. Today, I want to talk about one of the expert witnesses Dr. Brian Haas. He is an orthopedic surgeon involved in designing the metal-on-metal Pinnacle. He testified primarily about the evolution of metal-on-metal, and why they went with metal-on-metal. His goal was to downplay the problems that the plaintiffs had by showing that metal-on-plastic can also cause problems when the plastic deteriorates. The flaw with that logic is that the kinds of problems you have with plastic are a lot different than the kinds of problems you have with metal debris. The reaction to metal debris is much more significant. Also, how often it happens is different with the metal-on-metal hips. Metal-on-metal hips have a higher failure rate than you do with metal-on-plastic hips.

On cross-examination, the plaintiffs’ attorney went to great lengths to impeach Dr. Haas’s credibility. They focused on his relationship with DePuy over the years. The evidence that came out on cross-examination was pretty shocking. On direct examination, Dr. Haas testified that he received five million dollars in royalty payments from DePuy over the years. On cross-examination, it turned out that the number was much more than five million, upwards of ten million dollars. It was shocking how his consulting arrangement was set up with DePuy. So, there was testimony showing that he would work on what’s called a design team; there were several prominent surgeons that were called in from around the United States and they would meet at a resort. They’d have a meeting to talk about new designs for hips. All the surgeons on the design team had consulting agreements. The consulting agreements did two things: first, it allowed them to get paid for their time showing up at these meetings, and also the consulting agreements actually required the surgeons to exclusively use DePuy products in their practice.

The Federal Government and European Authorities fined DePuy for this arrangement because they considered those consulting agreements to be kickbacks to doctors. The set up for these design meetings was interesting because the doctor would show up and get paid an hourly fee; lots of money but not huge money. Then, the doctor would give their ideas on new hip designs and so would the other surgeons. At trial, it was revealed that after the DePuy Pinnacle had patented, approved by the FDA, and sold on the market, DePuy enters a royalty agreement with Dr. Haas. He gets a percentage of all hips that are sold in the United States. The consulting agreement was completely unnecessary. It really wasn’t an agreement to compensate the doctor for the work he did previously because he had already been compensated for that. It was an agreement to get him to go out, promote the hip, and sell it to other doctors. The compensation for Dr. Haas would be a percentage of all the sales. The implication from this arrangement was that it was put in place because DePuy wanted a prominent doctor to sell the hips without anyone knowing he was being paid to do so.

The other matter revealed in court was that Dr. Haas has two partners who also have similar arrangements with DePuy. One partner made thirty million and the other partner made twenty million over the years with the consulting arrangements. Another piece of evidence involved a letter that Dr. Haas wrote to the CEO of DePuy after a meeting with the design team. The letter basically discusses a meeting the design team had before the Pinnacle was launched, and it mentions that surgeons on the design team had reservations and concerns about the health impact of metal ions, and Dr. Haas mentioned conducting studies at his lab. The important part of the letter was the doctor suggesting to the DePuy CEO that if they funded the study in a certain way, through an Unrestricted Grant, the lab could report the results of the study without mentioning that DePuy was involved. The letter specifically stated if DePuy gave Dr. Haas an unrestricted grant, he could do the study without tying it back to DePuy. So, there was a lot of discussion about why Dr. Haas sent that letter, and whether or not his suggestion was ethical.

The other effective line of questioning during cross-examination included doctors weighing the risks and benefits of the hips, especially Dr. Haas and his practice. Dr. Haas was paid to only use DePuy products. He was receiving a royalty interest on all hips that were sold but he never told this to any of his patients. He would tell his patients he had a relationship with DePuy and nothing more. He wouldn’t tell them that he was required to use DePuy products and that he made millions of dollars from the company. This was another method to undermine his credibility. There was also discussion about the risks and benefits of these products, and how the risk that something goes wrong was entirely on the patient; if something went wrong, they took all the risk. The benefits all went to DePuy and the doctors. The benefit is if a hip needs revision, DePuy gets to sell another hip and the doctor gets paid for doing another surgery. All the benefits go to DePuy and all the risk goes to the patients. This theme was emphasized during cross-examination of Dr. Haas.

This case shows you what happens behind the scenes and behind the cloak of these medical device companies. We’ve also seen this in other cases and situations where sales and market share is the driving force behind decisions made by these companies. Earlier in the case, it was revealed that metal-on-plastic hips were fine and there was no reason to design metal-on-metal hips other than increasing market share. This is compared to electronic companies that come out with a new product every year to drive sales and keep people buying their products, and this paradigm has been shifted over to medical devices.

DePuy Pinnacle 2016 Trial Update 7

Hi, I’m Stuart Talley here to do another update on the DePuy Pinnacle hip trial that is currently ongoing in Dallas, Texas. Today, we had more testimony from Dr. Tony Nargol. You may recall from my last update that Dr. Nargol is a surgeon in Leeds, England who was involved in early efforts to use metal-on-metal hips. He was a big proponent of Pinnacle and ASR hips, which was subsequently recalled. Dr. Nargol reported problems with these hips back in 2008. DePuy said he was the outlier, and that no other issues were reported, and essentially blamed him for poor surgical techniques.

At the trial, Dr. Nargol spoke about the joint registry. In England, and other countries, the government buys the prosthetic hips that are implanted in the respective country. They have laws requiring every surgeon to enter information into a database about every hip they implant and every time they have to revise a hip. The government examines this data and create reports about which hips work best, and which are problem hips. He described interesting facts about the National Joint Registry in England. A board of editors analyzes the data from the registry and release an annual report. Dr. Nargol revealed that a DePuy executive is on the board of the National Joint Registry in England.

At the beginning of the case, DePuy spoke about how the Pinnacle hip succeeded on the joint registry. Dr. Nargol explained the reason the Pinnacle succeeded was because of the three different kinds of inserts that can go into the cup. Not all Pinnacle hips are metal-on-metal; some are metal-on-plastic and other metal-on-ceramic. Now, when they did the registry and kept track of the performance on the Pinnacle hips, they didn’t differentiate between the type of bearing surface; the metal-on-metals were combined with the metal-on-plastics, which was the vast majority of Pinnacle hips implanted. So, the data showing the revision rate for the Pinnacle, was not accurate and did not indicate the true success rate for the metal-on-metal Pinnacle. The data DePuy mentioned at the start of the trial was inaccurate, and misleading in many respects. In 2013, DePuy separated the data between the different Pinnacle hips; the new data revealed the metal-on-metal Pinnacle hip had a significant failure rate. It was eight times more likely to fail than the metal-on-plastic. However, the data on the registry showed a low revision rate was because the metal-on-plastic lowered the average.

Dr. Thomas Schmalzried was the other witness we heard. Dr. Schmalzried is an orthopedic surgeon in Los Angeles, and co-inventor of the DePuy Pinnacle and DePuy ASR. He was a big proponent of metal-on-metal hips. He was a consultant for DePuy who traveled around the country, and spoke at meetings about the new design and different kinds of hips. He was paid a royalty for every Pinnacle and ASR hip that was implanted. There was testimony regarding the fact Dr. Schmalzried never disclosed the royalty payments when he spoke to other surgeons about the hips. Dr. Schmalzried made millions of dollars from the Pinnacle and ASR. At trial, it was revealed that the exact amount he made from these hips was 24 million dollars. He earned additional sums from the work he has done for DePuy with respect to these hips as well as the litigation work. Even after the ASR was recalled, and after the Pinnacle was removed from the market, he’s made a lot of money being involved in the lawsuits.

Dr. Schmalzried discussed and insisted he was merely a design surgeon; he only helped design the hips. The plaintiffs’ attorney wanted him to admit he was involved in the marketing of these hips and not solely the design. He would not admit he was a marketer for DePuy. So, the plaintiffs’ attorney went through multiple documents which revealed Dr. Schmalzried’s detailed discussions with the marketers at DePuy regarding how to sell more hips. He was involved in and helped draft the marketing and promotional materials that went to patients. During his testimony, there was attention concerning the speeches he gave before the DePuy’s salesmen. DePuy had an annual meeting and he presented information about the Pinnacle and ASR hips. The speech discussed how they could sell more, what tactics to employ, and what responses to give to doctors if they questioned them about the hips and their problems.

The theme of the day, and throughout the trial, was DePuy putting profits over people. Another theme involved how the metal-on-metal hips were not designed to help patients but to make more money. Throughout the day, there was testimony from plaintiffs and plaintiffs’ doctors discussing how the revision surgeries have impacted their lives. For some of the plaintiffs, it has been dramatic. There was powerful testimony about how the hips have adversely affected the plaintiffs’ lives.

DePuy Pinnacle 2016 Trial Update 6

Hi, this is Stuart Talley and I am here to do another update on the ongoing DePuy Pinnacle trial involving five plaintiffs. Today, we heard testimony from one of the plaintiff’s son. His son testified about how the hip revision surgery impacted his father’s life. It was very powerful testimony about how the revision surgery changed his father’s life in a dramatic way; he used to be very active, and after the surgery, had lots of problems.

Most of the day, however, was spent playing a video tape testimony of Dr. Tony Nargol, an orthopedic surgeon in Leeds, England. His office is about an hour from DePuy’s European Headquarters. Dr. Nargol was one of the first surgeons to use metal-on-metal hips. DePuy would fly him all over the world to promote the benefits of the operation and teach other doctors to implant metal-on-metal DePuy Pinnacle hips and DePuy ASR hips. Dr. Nargol discussed how he implanted hundreds of these hips. After a couple of years, he had patients following up with him and reporting lots of pain. During revision surgeries, they would find adverse reactions such as metallic fluid, black stained tissue and tissue destruction inside the hip. Other problems include release of metal particles, triggering inflammation and tissue damage. Sometimes this can lead to non-cancerous tumors. This started as a small problem for DePuy, and over time, it worsened.

Most these issues were initially reported in 2008. At the time, Dr. Nargol was reporting these adverse reactions to DePuy. He sent them pictures, videos and even had DePuy executives in the operating room during a revision surgery to show them what he was seeing. However, DePuy insinuated Dr. Nargol was at fault and that no one else was reporting these problems. DePuy also blamed the patients; proposing a hypothesis that his patients were hypersensitive and allergic to these hips. DePuy even went on to state it was the environment of Leeds, England. Dr. Thomas Schmalzried, a co-inventor of the hips, gave a lecture where he hypothesized there was something in the water that made people from Leeds suffer problems from the hips. The truth is DePuy was getting reports all over the world from other surgeons who were having problems with these hips. This was demonstrated during trial; there were emails and reports from numerous orthopedic surgeons reporting adverse reactions with the hips. DePuy’s response was blaming the doctor and the patient.

One of the most shocking revelations during testimony today regarded Dr. Nargol in 2012. At this time, Dr. Nargol was experiencing all these problems. He had implanted hundreds of these hips and he estimates that approximately nine percent of them required revision surgery, five years after the initial implant. Dr. Nargol, DePuy executives and the Medicines & Healthcare products Regulatory Agency (MHRA), the European equivalent of the Food and Drug Administration (FDA),  had a meeting in 2012. During this meeting, Dr. Nargol explained that he thought the revision rates for these hips was nine percent. However, DePuy explained via their own internal documents that the revision rate was only four percent. They said Dr. Nargol was an outlier and placed blame on him. At the trial, it was revealed that DePuy’s internal documents showed the revision rate at five years was not four percent but 14%. DePuy knew these figures and never presented this data during the meeting.

It was a powerful day for the plaintiffs. The testimony divulged that DePuy was warned about adverse reactions in 2008, and they tried to sweep it under the rug. We are getting closer to the end of the trial.

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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