There is a very important Depuy Pinnacle hip case being tried in Dallas, Texas as I write this.
The federal court system has consolidated many of the Depuy Pinnacle lawsuits into one multidistrict litigation in the North District of Texas (3:11-md-02244) presided over by federal judge Ed Kinkeade.
Back in August, Judge Kinkeade selected certain cases as “bellwether selections” and ordered the parties to organize those cases for jury trials. Bellwether cases are representative cases which have broad characteristics in common with many of the remaining cases.
So Judge Kinkeade ordered that five separate cases would be consolidated into one (very large) jury trial, to start January 8. Those five plaintiffs are:
One jury will hear all the evidence in these cases, but the judge will allow the jury to consider liability in each case, and to award separate damages in each case. Based on court filings, all five plaintiffs are from Texas, and each case has many similarities, thus making them amenable to trying together. In the language of the law, these five cases have “common issues of law and fact.” Opening arguments began January 11. The case is supposed to last three months.
By all accounts, this trial has already become a slugfest. Depuy and the other defendants jumped out of the gate by filing motions to exclude key evidence and exhibits offered by the five plaintiffs. Clearly, one of the strategies of the defense team is to focus on the differences between the Depuy Pinnacle hip and the Depuy ASR hip. Among other things, the Pinnacle has three parts, while the ASR has two (essentially, a cup and a ball that fit inside the cup). The ASR has had an awful history, and already two sweeping settlement agreements have been reached in the ASR cases, which settled thousands of cases. Depuy does not want the ghosts of the Depuy ASR hip to enter the federal courtroom in Dallas, Texas in the current trial.
Last week Depuy made a motion to exclude one of the plaintiffs’ key experts in the case, Dr. Bernard F. Morey. Dr. Morey is supposed to testify “generally” about metal-on-metal hip implants. The defendants argued that because Dr. Morey did not provide an expert report during the “discovery” phase, he should not be allowed to provide testimony in front of a jury. It may sound petty or hyper-technical, but it actually flows from a reasonable position in most civil cases, and goes like this, “Hey wait a minute. Both sides were supposed to identify all trial witnesses and all testifying experts well before trial so we could take depositions and figure out what the witnesses were going to say at trial.” This is the essential reason civil litigation has a lengthy period of discovery—not only does it prepare both sides for trial, but it also allows both sides to evaluate the strength of cases as the litigation moves forward so each side can decide whether to try the case or settle it.
Stakes Are High
The current court room battles are intense because the stakes are so high. If Depuy wins the trial, or persuades the jury to award very modest damages, the result will likely impact thousands of future settlements. If, however, the plaintiffs win a big victory, the fallout will extend beyond the handsome compensation to the five trial plaintiffs; in addition, the plaintiffs’ executive committee in the MDL will be able to negotiate larger settlements for the 8,000 other plaintiffs who are still waiting to have their cases heard by a jury (or settled). So millions of dollars, possibly even billions, are at stake, all flowing from the current jury trial being conducted in Dallas. It’s kind of a big deal.
Pinnacle Never Recalled
It’s important to remember that, unlike the Depuy ASR hip, the Depuy Pinnacle was never officially recalled by Depuy Orthopaedics. In my view, this is a dangerous game for Depuy to play, but plainly the company is taking the position that the Pinnacle is different and safer than the ASR hip components. I think this is a mistake, but Depuy didn’t ask me.
Prior to the current five-plaintiff trial taking place in Texas, one Pinnacle case was tried to a jury. You can read about it here. Unfortunately for the injured woman in that case, the jury found that Depuy was not negligent and that Ms. Herlihy-Paoli was not entitled to any money.
The Depuy Pinnacle system was designed to provide better range of motion and to be more useful to a more active group of patients undergoing hip replacement surgery. One of the major complaints is that the metal components would grind and release metal particles into the body and blood of the patient, leading to extremely high levels of cobalt and chromium. Like the Depuy ASR hip, the Depuy Pinnacle hip bypassed the normal pre-market testing for a new medical product through the 510(k) process.
I will continue to provide updates on the Depuy Pinnacle Trial in Texas. Stay tuned.