J&J’s DePuy can’t delay 3rd bellwether in Pinnacle hip MDL

A Johnson & Johnson (NYSE:JNJ) subsidiary can’t delay an upcoming bellwether trial in the multi-district litigation over its Pinnacle metal-on-metal hip implant, a federal judge in Texas ruled yesterday.

DePuy Orthopaedics asked Judge Ed Kinkeade of the U.S. District Court for Northern Texas for a stay of the 3rd bellwether trial in the MDL, which involves more than 8,000 cases. The company also asked a federal appeals court to hit the pause button to give it enough time to appeal a $500 million jury verdict in the 2nd bellwether. DePuy wanted Kinkeade to pause the 3rd bellwether while the the U.S. Court of Appeals for the 5th Circuit considers its petition for a writ of mandamus.

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.

DePuy argued that the next bellwether involving 7 plaintiffs slated for trial Sept. 6 should be delayed, accusing Kinkeade of abusing the bellwether process and allowing “the injection of all manner of irrelevant and highly inflammatory evidence” in the 2nd bellwether.

In declining to institute a stay, Kinkeade ruled that DePuy ignored his warnings that introducing evidence of “good character, product safety, success of their products abroad, and positive scientific literature” would allow the plaintiffs to refute the claims with contrary evidence.

“[T]he Court warned defendants on numerous occasions that if they presented certain defenses, plaintiffs would be permitted to introduce evidence to refute it. Defendants, not plaintiffs, opened the door to the evidence defendants now claim was error to admit. It will be defendants’ choices that govern whether this evidence is admitted in future trials,” Kinkeade wrote.

“Defendants are asking for a stay that is inconsistent with the agreed-upon bellwether trial plan and is unjustified based on a balancing of interests. This MDL has already been pending for 5 years. The representative plaintiffs in the consolidated bellwether trial this year averaged 68 years old. The court believes that a stay would unduly prejudice plaintiffs and delay resolution of this matter to the detriment of all parties. Exercising its judgment, weighing the competing interests, and maintaining an even balance, the court finds that the bellwether trials should proceed as originally agreed,” he wrote.

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