DALLAS – DePuy Orthopaedics and Johnson & Johnson have appealed a trial court decision that would have them pay out $150 million in damages to five plaintiffs.

After a weeks-long courtroom battle described in appeal documents as “intensely adversarial," a jury found in favor of five plaintiffs who had received DePuy’s Pinnacle hip implant, which uses a metal-on-metal design. According to the plaintiff’s cross-appeal filing, “Defendants’ re-introduction of metal-on-metal hips traded progress for a known failed technology, causing countless serious, unnecessary health problems. High failure rates with dire medical consequences caused surgeons to abandon metal-on-metal.”

DePuy and Johnson & Johnson filed the appeal Jan. 30, claiming that “plaintiffs’ claims never should have been submitted to the jury at all, as they are foreclosed by Texas law, preempted by federal law, and - for two of the plaintiffs - barred by the statute of limitations.” Their filing goes on to claim that “the jury’s verdict resulted from plaintiffs’ deliberate strategy to inflame the jury through highly prejudicial evidence and wholly inappropriate argument… The proceedings careened off the rails in a number of critical respects, and this court should enter judgment as a matter of law for Appellants or, at a minimum, remand for a new trial that focuses on relevant evidence and appropriate argument and provides basic guarantees of fairness.”

After hearing the evidence during the initial trial, the jury had been asked to answer a number of questions, including whether the Pinnacle hip implant possessed a design defect, whether DePuy Orthopaedics had failed to adequately warn patients of potential dangers in using the product, and whether Johnson & Johnson knowingly aided DePuy Orthopaedics in selling a product they knew had been defectively designed. The jury answered yes to all these questions.

The jury was then asked to decide the dollar amount of damages each of the five plaintiffs should be entitled to for physical pain and mental anguish in the past and future, disfigurement sustained in the past and future, physical impairment sustained in the past and future, past and future medical expenses, and in the case of three of the plaintiffs, damages to their spouses for loss of household services and loss of consortium, both past and future. The total awarded by the jury came out to approximately $502 million.

This amount was brought down to $150 million by Judge Ed Kinkeade. Although four of the plaintiffs had been awarded $20 million in exemplary damages from DePuy Orthopaedics and $40 million from Johnson & Johnson, while the fifth had been awarded $40 million and $80 million respectively, Kinkeade reduced the amounts to bring them in line with a Texas law that limits the amount of exemplary damages a plaintiff can be awarded. He amended the amounts to twice the plaintiff’s amount of economic damages plus $750,000.

In their cross-appeal filing, the plaintiffs challenge the legality of Texas’s exemplary damages cap, arguing “Because the statutory cap violates the Texas and United States Constitutions, this court should instruct Judge Kinkeade to modify the judgments and award exemplary damages as found by the jury.”

Part of DePuy Orthopaedics and Johnson & Johnson’s reasons for filing the appeal, according to their appellant brief, is that “this was supposed to be a ‘bellwether’ trial that would inform future proceedings in a multi-district litigation with thousands of other pending cases. Bellwether trials are supposed to provide the parties with unbiased information about the objective value of the asserted claims… In that regard, this trial was an abject failure.”

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