By John W. Scanlan, J.D.
Five hip implant patients who needed revision surgery to replace their implants were awarded $360 million in punitive damages and about $140 million in personal injury damages against DePuy Orthopaedics, the manufacturer of the Pinnacle implant, and Johnson & Johnson, DePuy’s parent company (In re: DePuy Orthopaedics, Inc. Pinnacle Implant Products Liability Litigation, March 17, 2016, Kinkeade, E.).
Each of the five patients underwent a hip arthroplasty procedure in which a Pinnacle MoM Device was implanted. This “metal on metal” device is a Class III medical device manufactured by DePuy Orthopaedics, Inc. After their surgeries, each of the patients reported pain and difficulty with their implants and subsequently underwent revision surgery to replace the implants with a “ceramic on polyethylene” implant. The patients filed separate suits against DePuy as well as Johnson & Johnson, DePuy’s parent company, bringing claims for negligence, design defect, manufacturing defect, failure to warn, breach of express and implied warranties, and fraud. Two of the patients also alleged tortious interference with the doctor/patient relationship, asserting that the defendants knowingly engaged their physician as an expert witness in the litigation. The patients asserted that the metal on metal Pinnacle implants generate unusually high amounts of metal wear debris and ions that spread throughout surrounding bone and tissue, causing various conditions including metallosis, tissue death, bone loss, and high failure rates, along with unsafe cobalt and chromium levels.
Jury findings/charges. The jury found for all five patients on their strict liability claims for design defect and marketing defect against DePuy. It also found that Johnson & Johnson had participated in the implant’s design and was engaged in the business of selling it, but determined that it knew of the defect at the time it supplied the implant with respect to only one of the five patients. The jury found Johnson & Johnson negligently undertook its duty to provide services to DePuy that proximately caused the injuries to all five. In addition, the jury concluded that Johnson & Johnson knowingly gave substantial assistance to DePuy’s tortious conduct with respect to all five patients.
However, the jury did not find that DePuy had engaged in commercial bribery of the physician who had served as the orthopedic surgeon for two of the patients by hiring him as an expert witness in the litigation.
Personal injury damages. For their personal injury damages, one patient was awarded nearly $50 million, with about $2.5 million to his wife; close to $16 million to a second, with around $750,000 to his wife; $15 million to a third, along with $1.2 million to his wife; and about $30 million each to two other patients.
Exemplary damages. Concluding that exemplary damages were warranted against both companies for their fraud and gross negligence respecting each of the five patients, the jury awarded $120 million against DePuy and $240 million against Johnson & Johnson.
Attorneys: Stephen E. Harrison, II (Harrison Davis Steakley Morrison, PC) for Robert Peterson. Jessica D. Miller (Skadden, Arps, Slate, Meagher & Flom LLP) and Michael V. Powell (Locke Lord LLP) for Johnson & Johnson Services Inc., DePuy Orthopaedics Inc., DePuy Products Inc., DePuy Synthes Inc. and Johnson & Johnson.
Companies: Johnson & Johnson Services Inc.; DePuy Orthopaedics Inc.; DePuy Products Inc.; DePuy Synthes Inc.; Johnson & Johnson
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