The Fifth Circuit Court of Appeals has thrown out a $502 million verdict against Johnson & Johnson and subsidiary DePuy Orthopaedics over defective hip-implant claims, ruling the trial judge committed “serious evidentiary errors” and allowed “misrepresentations” by the plaintiffs lawyer to go before the jury.
The panel also threw out two “aiding and abetting” claims against Johnson & Johnson, but it allowed two others remain for negligent undertaking and nonmanufacturer seller.
The case was the second bellwether trial in a series involving multidistrict litigation regarding the manufacture and sale of Pinnacle hip replacements, which are the subject of thousands of lawsuit across the country.
Following the verdict in the instant case, U.S. District Judge Ed Kinkeade reduced the award to $151 million, which the plaintiffs appealed.
Previous trials have led to verdicts of more than $1 billion and $247 million against Johnson & Johnson.
The appellate opinion, authored by Circuit Judge Jerry Smith with the concurrence of Judges Rhesa Barksdale and Stephen Higginson, chided Kinkeade for expanding Texas law beyond its current reach “despite ample warning.”
The opinion also took aim at Kinkeade and lead plaintiffs attorney W. Mark Lanier of Houston’s Lanier Law Firm for comments during closing arguments linking Johnson & Johnson to bribery payments made to deceased Iraqi dictator Saddam Hussein.
The appellate panel also took issue with payments Lanier made to two expert witnesses, representing that they were not being paid for their testimony while the defense experts was paid.
In fact, Lanier paid $10,000 to the alma mater of one witness, and paid $65,000 after trial to that witness and his son, who was another witness.
At trial, Lanier “repeatedly leveraged the false contrast between defendants paid mercenaries and plaintiffs’ unpaid altruists to his clients’ advantage,” the opinion said.
Kinkade should have at the least required disclosure of the payments, the opinion said.
“The district court abused its discretion in concluding otherwise,” Smith wrote. “Calculated or not, falsehoods marred plaintiff’s victory. The verdict cannot stand.”
During oral arguments at the Fifth Circuit, Lanier and former U.S. Solicitor General Ken Starr represented the plaintiffs, while Paul Clement from Kirkland & Ellis argued for DePuy Orthopaedics.
In an email, Lanier termed the opinion “interesting.”
“We think that the legal reasoning upholding the various actions against Depuy and [Johnson and Johnson] are strong and important,” said Lanier.
“We think that the court misunderstood the issues of monetary representations about the doctors, but we will honor the court’s ruling rather than appeal,” Lanier added.
Taking another jab a the defendants, Lanier said it was “unfortunate the behavior of [Johnson & Johnson] was so bad, that reciting that behavior to a jury evidently prejudices the verdict. However, the court has not allowed that into evidence in the subsequent trials, and those resulted in larger awards.”
Lanier said he will request a retrial “as soon as the court can allow.”
Also via email, Johnson & Johnson attorney John Beisner with Skadden, Arps, Slate, Meagher & Flom said the defense is pleased the Fifth Circuit reversed the verdict.
“As the court’s ruling makes clear, the trial was rife with errors that made it impossible for defendants to get a fair trial,” Beisner said. “The court also called out plaintiffs’ lead counsel’s ‘deceptions,’ said which it found to be ‘obvious, egregious, and impactful,’ as independent grounds for reversal.”
“We look forward to the opportunity to retry the plaintiffs’ claims on a level playing field,” Beisner said.
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