Plaintiff’s $8m win in DePuy ASR hip trial survives Johnson & Johnson’s appeal

An $8 million plaintiff’s award in a product liability lawsuit brought over the DePuy ASR XL metal-on-metal hip implant made by Johnson & Johnson (NYSE:JNJ) subsidiary DePuy Orthopaedics survived the company’s appeal to a California state court.

The trial was the 1st of thousands of product liability cases filed over the ASR hip. Plaintiff Loren Kransky claimed that his ASR device failed less than 5 years after he received it. After a 5-week trial, in March 2013 a California jury found that the device was defectively designed and that the companies were negligent, awarding $8.3 million in damages.

J&J appealed to California’s 4th District Court of Appeal, challenging several evidentiary rulings made by Judge Stephen Czuleger during the trial, including the exclusion of evidence of FDA clearance and expert testimony offered by witnesses for Kransky, according to court documents.

The appeals court yesterday denied all of the challenges, affirming the Superior Court of Los Angeles County’s original judgment, according to the documents.

“We conclude that the trial court did not abuse its discretion in any of its evidentiary rulings. DePuy also argues that the jury’s verdict is not supported by substantial evidence and is internally inconsistent. We conclude that the verdict is supported by substantial evidence and is not irreconcilable. Finally, DePuy argues that the damages award is excessive. We conclude that the $8.3 million compensatory damages award is not so grossly out of proportion as to shock the conscience. Therefore, we affirm,” the 3-judge appeals panel wrote.

Johnson & Johnson pulled the DePuy ASR device in 2010 on reports of an abnormally high number of revision surgeries; in 2013 it bailed out on metal-on-metal hips altogether. Numerous studies have confirmed problems with MoM hips, including an internal J&J study showing that 1 in 3 metal hips could fail in less than 5 years; last month, a study showed that the metal ions, released when the parts of the cobalt-chromium-molybdenum devices rub against each other, were able to penetrate bone marrow and impede the formation of bone-growing cells.

The company in May 2014 inked a $2.5 billion deal to settle some 8,ooo of the DePuy ASR cases that had been consolidated into a multi-district litigation in federal court in Ohio.

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