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Litigation

Defense Verdict Returned In 1st DePuy Pinnacle Hip Bellwether Case

DALLAS — (Mealey’s) Jurors in the U.S. District Court for the Northern District of Texas on Oct. 23 returned a defense verdict for DePuy Orthopaedics Inc. and parent company Johnson & Johnson in the first Pinnacle hip multidistrict litigation bellwether case (In Re:  DePuy Orthopaedics, Inc., Pinnacle Hip Implant Products Liability Litigation, MDL Docket No. 2244, No. 3:11-md-2244, Kathleen Herlihy-Paoli v. DePuy Orthopaedics, Inc., et al., No. 12-2975, N.D. Texas). 

(Charge and verdict form available.  Document #28-141106-005V.

The jury answered “no” to questions about whether Kathleen Herlihy-Paoli’s injuries were caused by negligent design of the hip prosthesis, whether DePuy failed to adequately warn of the hip’s dangers to patients and whether DePuy’s actions violated the Montana Consumer Protection Act.  The jury did not have to answer questions about whether Johnson & Johnson acted in concert with DePuy in causing the plaintiff’s injures. 

Herlihy-Paoli sought past and future economic and general damages and punitive damages for fraud or malice. 

The jury began deliberations on Oct. 21.  Testimony began Sept. 3 and continued for 28 days. 

DePuy:  Hip Was Tested

A spokesperson for DePuy Synthes, as DePuy is now known, said in a statement that the company is pleased with the verdict.  She said the Ultamet Metal-on-Metal components of Herlihy-Paoli’s device “was appropriately developed, thoroughly tested, and responsibly marketed.” 

Ultamet Metal-on-Metal is the metal-on-metal-bearing option previously available with the Pinnacle Acetabular Cup System. 

In 2009, Herlihy-Paoli, now 58, was implanted months apart with two DePuy Pinnacle hips.  She later experienced severe pain in her hip and thigh.  Herlihy-Paoli’s doctor determined that the hip implant was leaching cobalt and chromium into the patient’s bloodstream and that she required revision surgery. 

The explanting surgeon stated that the first hip had failed and that the device had turned black from metallosis.  The second hip was replaced at a later date. 

No Mistrial, JMOL

Herlihy-Paoli sued DePuy and Johnson & Johnson in the U.S. District Court for the District of Montana, and her case was transferred into the Pinnacle MDL in the Northern District of Texas.  The plaintiff brought claims of violation of the Montana Consumer Protection Act, strict liability, breach of express and implied warranty, deceit, fraudulent concealment, constructive fraud, intentional misrepresentation, negligent misrepresentation, negligence, medical monitoring for cancer and aseptic lymphocyte dominated vasculitis-associated lesions, negligent infliction of emotional distress and punitive damages. 

On Sept. 15 and again on Oct. 20, Judge Ed Kinkeade denied defense motions for a mistrial.  On Oct. 21, the judge denied the defendants’ motion for judgment as a matter of law on Herlihy-Paoli’s claims of design defect, failure to warn, consumer protection law violations, lost profits and punitive damages. 

In July, Judge Kinkeade denied a defense motion for summary judgment.  He also denied a motion to exclude Herlihy-Paoli’s expert witnesses. 

The plaintiff called 16 witnesses, and the defendants called 13. 

Metal Debris Injuries Alleged

Metal-on-metal hips had a metal acetabular cup — which are implanted in the pelvis — and metal femoral heads.  Plaintiffs allege that the design causes metal particles to wear off, causing tissue injury and metal poisoning.  In addition, they allege that the devices failed much earlier than expected. 

According to the Judicial Panel on Multidistrict Litigation, there are 6,632 cases on the Pinnacle MDL docket. 

DePuy also made the ASR metal-on-metal hip.  In November 2013, DePuy announced that it had reached agreements to settle about 8,000 ASR cases in federal and state court for about $2.5 million. 

Counsel

Herlihy-Paoli is represented by David R Paoli and Philip C. Shadwick of Paoli Kutzman in Missoula, Mont.; Jayne Conroy of Simmons Hanly Conroy in New York; Larry P. Boyd of Fisher, Boyd, Brown & Huguenard in Houston; Richard J. Arsenault of Neblett, Beard & Arsenault in Alexandria, La.; W. Mark Lanier of the Lanier Law Firm in Houston; and Wayne Fisher of Fisher, Boyd, Johnson & Huguenard in Houston. 

DePuy and parent company Johnson & Johnson are represented by Michael V. Powell and Seth M. Roberts of Locke, Lord, Bissell & Liddell in Dallas and Jessica D. Miller and Stephen J. Harburg of Skadden Arps in Washington, D.C. 

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