NEW ORLEANS – Johnson & Johnson has petitioned the U.S. 5th Circuit Court of Appeals to remove a federal court judge from adjudicating over a fourth bellwether trial stemming from a dispute involving metal-on-metal hip implants that have already cost the company nearly $1 billion in judgment payouts.
In its filing, Johnson & Johnson and its DePuy Orthopaedics unit argue that U.S. District Judge Ed Kinkeade only has legal authority and jurisdiction to preside over pretrial proceedings related to multidistrict litigation in Texas involving local residents.
Kinkeade is scheduled to serve as the judge in a federal trial slated to commence on Sept. 5, where nine plaintiffs from New York are set to go on trial. Kinkeade has already presided over the first three bellwether trials, where it was alleged DePuy’s Pinnacle Ultamet line of hip implants had defects.
The second trial centered on five plaintiffs from Texas and ended with in a $502 million verdict that was later reduced by roughly 70 percent. The third and most recent verdict ended with six plaintiffs from California securing a $1 billion verdict that was later cut nearly in half.
J&J has appealed the outcomes, insisting that a series of pretrial rulings administered by Kinkeade were “rife with legal and evidentiary errors,” its petition to the court stated.
“I’d like to refer you to the company’s legal filing, which lays out our company’s position on this matter, DePuy staffer Beth Richek told The Record in an email.
Plaintiff attorney Mark Lanier of the Lanier Law Firm has insisted his clients want to move forward with the scheduled proceedings, characterizing J&J’s criticisms of Kinkeade as nothing more than a stall tactic.
“This is J&J’s third effort to mandamus Judge Kinkeade,” Lanier was quoted by Law360. “It should be as futile as the prior efforts. J&J needs to address their culpability and quit trying to delay and run from the court.”
Johnson & Johnson parties are represented by John H. Beisner, Stephen J. Harburg, Jessica Davidson Miller and Geoffrey M. Wyatt of Skadden Arps Slate Meagher & Flom LLP and Michael V. Powell of Locke Lord LLP, Law360 reports.