5th Circuit Denies Motion to Hear DePuy Hip Appeals Together

DePuy Pinnacle metal-on-metal hip
DePuy Pinnacle metal-on-metal hip

The 5th US Circuit Court of Appeals denied the motion of eight successful plaintiffs who last year obtained a combined total of $646 million in damages against DePuy Orthopaedics Inc. in two jointly-tried cases where juries found that the company knowingly sold a defective hip replacement.

On Jan. 6, five plaintiffs obtained a $146.2 million judgment against DePuy in a consolidated Pinnacle hip bellwether trial had filed a motion asking the Fifth Circuit to consolidate their appeal with that of a $500 million judgment in a subsequent multi-plaintiff bellwether trial.

They argued that the cases were very similar except that the law of Texas governed the second trial, and the law of California governed the third.

The court said no in a one-page order. The case is In re DePuy Orthopaedics, Inc., Pinnacle Hip Implant Products Liability Litigation, No. 16-11051 in the 5th Circuit. There are 8,751 cases consolidated in MDL 2244 before US District Judge James Edgar Kinkeade in the Northern District of Texas in Dallas.

DePuy is also facing 1,480 lawsuits in MDL 2197 before US District Judge Jeffrey J. Helmick in DePuy Orthopaedics, Inc., ASR Hip Implant Products Liability Litigation.

In the Texas MDL:

  • J&J prevailed in the first Pinnacle hip case to go to trial in October 2014.
  • In the second bellwether trial, a jury awarded $502 million to five of the patients in March 2016. The court cut the award to $150 million.
  • In the third bellwether trial, a jury awarded $1.04 billion in December 2016. The judge cut the punitive damages portion of the award in half.

Design flaws

The plaintiffs were implanted with the hip devices and experienced tissue death, bone erosion and other injuries they attributed to design flaws. Plaintiffs claimed the companies promoted the devices as lasting longer than devices that include ceramic or plastic materials.

The evidence demonstrated that:

  1. The Pinnacle Ultamet was defectively designed and marketed by Defendants.
  2. Defendants failed to provide adequate warnings for the device.
  3. Defendants failed to test the device in people before putting it on the market.
  4. Defendants knew or should have known of the dangers of metal-on-metal hip implants.
  5. Defendants misrepresented or concealed material facts about the device.
  6. Defendants polluted the scientific literature with fraudulent studies and biased doctors.
  7. Defendants routinely used improper consulting agreements to induce orthopedic surgeons to use and market their products.
  8. Defendants routinely prioritized marketing and sales over product safety.

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