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$1 Billion Verdict in Hip Implant Trial to be Questioned on Grounds of Fairness of Trial by J&J

$1 Billion Verdict in Hip Implant Trial to be Questioned on Grounds of Fairness of Trial by J&J
A verdict of $1 billion in damages against Johnson & Johnson last week over allegations of design flaws in its Pinnacle hip implant would be challenged in terms of the fairness of the trial that resulted in the fine, the company said.
The Texas jury's penalty, the largest product liability verdict so far this year, is unlikely to stand, believes legal experts and investors even though they say think J&J faces an uphill battle.
Tissue death, bone erosion and other injuries were caused in the two-month trial of the metal-on-metal implant made by J&J subsidiary DePuy Orthopaedics, claimed five separate people from California alleged and argued that design flaws in the impant were responsible for this.
It is the second large verdict against J&J in the Pinnacle implant litigation. Six Texas plaintiffs were awarded $500 million in July by another jury. Intended to gauge the value of claims for more than 9,000 other pending implant cases, both cases were so-called bellwethers.
It was confident in its appeal prospects and would not settle, J&J said in a statement. It also said it stood by the safety of its product.
There was little impact on J&J stocks by the last Thursday verdict. Investors assume large health products companies will occasionally be sued and lose and that the costs are ultimately manageable, said Les Funtleyder, a portfolio manager with ESquared Asset Management.
Before appealing to the 5th U.S. Circuit Court of Appeals in New Orleans, it will ask Kinkeade to reduce or throw out the jury award, J&J said. By parading a series of victims in front of the jury and exaggerating the number of complaints about the implant, the multi-plaintiff format stacked the deck against it, said the company.
The first bellwether trial in a case involving a single plaintiff in 2014 was won by the company. Kinkeade has not decided how many plaintiffs will be involved in that trial and the next is scheduled for September 2017.
J&J defense lawyer John Beisner said that these results "perfectly illustrate the distortions and confusion inherent in multi-plaintiff trials and underscore the extent of the legal errors that have been repeated."
But such a challenge faced long odds, said several legal experts. Multi-plaintiff trials were a long-established means of clearing dockets faster and trial judges are normally given great leeway in managing their cases, said Lynn Baker, a professor at the University of Texas School of Law.
"I would not expect J&J to succeed on a claim that they were prejudiced by the multi-plaintiff bellwether format," she said.
Raising bribery accusations against the company and claims that the metal-on-metal implants could cause cancer, the judge allowed plaintiffs' lawyers to present inflammatory and prejudicial testimony to the juries, J&J also said.
An appeals court was unlikely to overturn the verdict on such grounds though, said University of Richmond School of Law Professor Carl Tobias. "Unless there is clear prejudice on the part of the jury, you’ve got to defer to the factfinder," he said.
But J&J's case was strong for having the $1 billion award reduced on the grounds that it is excessive even without showing its trial was unfair, the professors said.

Christopher J. Mitchell

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