Imagine going to sleep the night after making the decision to strip five hundred million dollars from six families. I imagine it would be unsettling. On Tuesday, Judge Ed Kinkeade, a federal judge in Texas overseeing the Depuy Pinnacle MDL, made the decision to cut $500,000,000.00 from a jury award presented to six families after a grueling ten-week trial last fall. You can read about the trial and the jury’s verdict here. In that post I wrote that the jury’s verdict was “staggering,” and it was. It may be more staggering that a judge, less than a month later, would wipe out half a billion dollars of the jury’s award.
On January 3, 2017, Judge Kinkeade issued his post-trial court order reducing the amount of punitive damages awarded to the six families, writing that “constitutional considerations limit the amount a plaintiff may recover in punitive damages.” The relevant portion of the Order states:
“Although the jury awarded $84,000,000 in punitive damages from Defendant DePuy Orthopaedics, Inc. and $84,000,000 in punitive damages from Defendant Johnson & Johnson, constitutional considerations limit the amount a plaintiff may recover in punitive damages. See State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 425 (2003) (“[F]ew awards exceeding a single-digit ratio between punitive and compensatory damages, to a significant degree, will satisfy due process. . . . Single-digit multipliers are more likely to comport with due process, while still achieving the State’s goals of deterrence and retribution . . . .”). The Court has reduced the punitive damages accordingly.” See Depuy Pinnacle Order.
I have to say this is a powerfully thin explanation for stripping half a billion dollars from a jury award: “single-digit multipliers”? Really? The U.S. Supreme Court has limited punitive damages in the past, but there is no overarching federal law limiting punitive damages, and all reductions such as the current one intrude aggressively on the power of the jury to make its own findings and awards. Further, as I discuss below, the controlling law in this case came from California, which does not have a punitive damages “cap.” In any evident, Judge Kinkeade held that the punitive damages award by the jury was “excessive.” Media reports calculate that the judge reduced the punitive damages award to nine-times the plaintiffs’ actual or compensatory damages.
Fortunately, Judge Kinkeade upheld the jury’s conclusions that the Depuy Pinnacle hip implants were defectively designed and that Depuy and Johnson & Johnson failed to warn consumers adequately about the risks involved.
The Third Depuy Pinnacle Bellwether Trial
This trial was the third “bellwether” case in the Depuy Pinnacle MDL (multidistrict litigation). The first Pinnacle bellwether trial ended in a defense verdict, and the plaintiffs in that case received no compensation. The second bellwether trial resulted in a huge $502 million dollar verdict for five plaintiffs. Much of the speculation about this third bellwether trial was whether the plaintiffs’ team could put on the same powerful case that they did in the second bellwether trial, or whether the $500 million verdict in March was simply an outlier. Turns out, they could.
Each of the plaintiffs in this case lived in California and received the Depuy Pinnacle artificial hip in surgeries in California. Because of this California citizenship, the laws of the state of California governed the case, even though the case was being tried in federal court in Texas. Essentially, Texas was chosen as the Pinnacle MDL venue, but in each case that reaches trial, the substantive law of the state where the plaintiff resides controls. This was important (I thought!) because California, unlike many states (including Texas and North Carolina), does not have a cap on punitive damages awarded by juries.
The Jury’s Punitive Damages Award
The jury awarded $1,008,000,000.00 in punitive damages total for the plaintiffs, and $1,000,000.00 in punitive damages for four spouses of the plaintiffs. The odd thing about Judge Kinkeade’s court order is that California has no statutory cap on punitive damages. In the second bellwether trial, Judge Kinkeade invoked Texas law to reduce the total jury award by $350 million, which you can read about here. But the judge should not have been able to disturb this latest award. I believed that the one billion dollar punitive damages award in this case should stand. Either I got it wrong, or Judge Kinkeade did. Of course we will see on appeal.
Were You Implanted with the Depuy Pinnacle Hip?
The Depuy Pinnacle Hip was originally designed to replace your natural bone “ball-and-socket” with artificial ball-and-socket parts, and to provide more range of motion and to be more useful to an active group of patients. One of the major complaints against the Pinnacle is that the metal components grind and release metal particles into the body and blood of the patient, often leading to extremely high metals levels.
The Pinnacle Hip was first sold in 2000. Depuy stopped manufacturing and selling the device in 2013. But it can take years for serious trouble to occur with a failed Pinnacle hip, which means many people are likely still out there with failing devices that don’t yet know the device is failing.
Quick example: you receive the Pinnacle hip in surgery in late 2012, prior to the device being taken out of the marketplace. Your hip feels OK in the first few years, but in 2016 you begin to feel a new discomfort. The pain gets worse over time. Then after a routine blood test, your doctor tells you that your metals levels are 17 parts per billion, which is high and not healthy. Turns out you are developing metallosis from the metal particles leaching into your body. Your doctor recommends revision surgery in 2017. In that case, you should qualify for participation in the Depuy Pinnacle MDL.
Like the Depuy ASR hip, the Depuy Pinnacle hip bypassed the normal premarket testing for a new medical product through a process known as “510(k).” This process allows a manufacturer to notify the Food and Drug Administration under section 510(k) of the Medical Device Amendments Act of 1976 of its intent to market a device (like an artificial hip) and to explain the device’s “substantial equivalence” to a pre-MDA device. The FDA may then approve the new device for sale in the United States, which it did for the Depuy ASR and Pinnacle, and which I believe is a significant reason for all the injuries and suffering related to failed medical devices.
Punitive damages awards play a vital role in consumer protection. If companies like Johnson & Johnson do not fear large punitive damages awards, or even the freedom and power of juries, they will be less likely to take adequate precautions to protect the public. In my view, the jury’s punitive damages award should stand.