Johnson & Johnson wants Pinnacle bellwethers stayed after $500m loss

A Johnson & Johnson (NYSE:JNJ) subsidiary wants a federal appeals court to hit the pause button in the multi-district litigation over its Pinnacle metal-on-metal hip implant to give it enough time to appeal a $500 million jury verdict.

In March, a Texas federal jury slapped DePuy Orthopaedics with a $500 million judgment in favor of a quintet of plaintiffs who blamed the Pinnacle implant for their injuries. After a 2-month trial, jurors found that the Ultamet metal-on-metal version of the Pinnacle hips were defectively designed and that DePuy failed to warn patients about the risks, awarding $130 million in total compensatory damages and $360 million in punitive damages. DePuy won the 1st bellwether trial in the MDL, in October 2014.

In a petition for a writ of mandamus filed yesterday with the U.S. Court of Appeals for the 5th Circuit, DePuy argued that the next bellwether involving 7 plaintiffs slated for trial Sept. 6 should be delayed. Courts can grant mandamus to compel or prevent other bodies from performing their required duties.

“Mandamus relief is needed because pressing forward with another trial now – before this court has had an opportunity to review several critical legal and evidentiary rulings in the last trial that have broad implications for the remaining cases in the MDL proceeding – would corrupt the bellwether process,” DePuy told the appeals court, alleging that Judge Ed Kinkeade of the U.S. District Court for Northern Texas abused the bellwether process.

“The petitioners won the 1st bellwether trial against a single plaintiff almost 2 years ago; yet, the MDL court has not entered judgment in that case. Over petitioners’ objection, and without calling for briefing from the parties on the issue, the MDL court then consolidated five plaintiffs’ cases for trial shortly before the 2nd bellwether trial was set to begin in January 2016. At trial, the MDL court rejected defendants’ dispositive motions wholesale, allowing plaintiffs to proceed with novel and far-flung theories, unsupported in law, that will likely recur in most if not all cases in the MDL proceeding – including that parent companies can be held liable for the acts of their subsidiaries on an ‘aiding and abetting’ theory and that a design defect can be proven not by singling out a specific flaw in a specific device but instead by arguing that an entire line of products should not have been sold by any of a range of manufacturers,” the company argued.

“The MDL court also allowed (again over petitioners’ objections) the injection of all manner of irrelevant and highly inflammatory evidence – including, for example, plaintiffs’ counsel’s gratuitous assertions that nonparty subsidiaries of J&J had made payments to ‘Saddam’s henchmen;’ hearsay assertions from a book about supposedly improper scientific articles planted in the literature by ‘Big Tobacco’ and other ‘industr[ies];’ allegations that the Pinnacle Ultamet poses a risk of cancer, even though no plaintiff alleged such an injury and no science supports it; references to an employee’s unproven allegations of racist treatment at DePuy; and a suggestion that the failure of a metal-on-metal implant in another, nonparty individual led him to commit suicide. Not surprisingly, the jury, awash in this flood of prejudicial evidence, returned a verdict in excess of $500 million – including $360 million in exemplary damages,” DePuy wrote in the brief.

DePuy wants a stay of future trials until the 5th Circuit has a chance to review the issues raised in the mandamus petition.

“Because the MDL court has indicated that it will consolidate the new bellwether cases for a multi-plaintiff trial and because it is likely to issue the same rulings on a slew of issues that petitioners intend to appeal, the order raises the prospect that petitioners could soon be facing twelve adverse verdicts, totaling potentially $1 billion and causing significant reputational harm, all before this court has ever had a chance to review any judgment in these proceedings,” the company wrote.

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