Fifth Circuit Tosses $502 Million Verdict Against J&J, DePuy Orthopaedics
The appellate opinion said the trial judge committed "serious evidentiary errors" and allowed the plaintiffs counsel to mislead the jury.
April 26, 2018 at 12:52 PM
4 minute read
U.S. District Judge Ed Kinkeade of the Northern District of Texas
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.
Miriam Rozen contributed to this report.
This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.
To view this content, please continue to their sites.
Not a Lexis Subscriber?
Subscribe Now
Not a Bloomberg Law Subscriber?
Subscribe Now
NOT FOR REPRINT
© 2024 ALM Global, LLC, All Rights Reserved. Request academic re-use from www.copyright.com. All other uses, submit a request to [email protected]. For more information visit Asset & Logo Licensing.
You Might Like
View AllAmazon, SpaceX Press Constitutional Challenges to NLRB at 5th Circuit
5th Circuit Scrutinizes Under-21 Handgun Sales Ban Based on Supreme Court Test
Trending Stories
- 1Gibson Dunn Sued By Crypto Client After Lateral Hire Causes Conflict of Interest
- 2Trump's Solicitor General Expected to 'Flip' Prelogar's Positions at Supreme Court
- 3Pharmacy Lawyers See Promise in NY Regulator's Curbs on PBM Industry
- 4Outgoing USPTO Director Kathi Vidal: ‘We All Want the Country to Be in a Better Place’
- 5Supreme Court Will Review Constitutionality Of FCC's Universal Service Fund
Who Got The Work
Michael G. Bongiorno, Andrew Scott Dulberg and Elizabeth E. Driscoll from Wilmer Cutler Pickering Hale and Dorr have stepped in to represent Symbotic Inc., an A.I.-enabled technology platform that focuses on increasing supply chain efficiency, and other defendants in a pending shareholder derivative lawsuit. The case, filed Oct. 2 in Massachusetts District Court by the Brown Law Firm on behalf of Stephen Austen, accuses certain officers and directors of misleading investors in regard to Symbotic's potential for margin growth by failing to disclose that the company was not equipped to timely deploy its systems or manage expenses through project delays. The case, assigned to U.S. District Judge Nathaniel M. Gorton, is 1:24-cv-12522, Austen v. Cohen et al.
Who Got The Work
Edmund Polubinski and Marie Killmond of Davis Polk & Wardwell have entered appearances for data platform software development company MongoDB and other defendants in a pending shareholder derivative lawsuit. The action, filed Oct. 7 in New York Southern District Court by the Brown Law Firm, accuses the company's directors and/or officers of falsely expressing confidence in the company’s restructuring of its sales incentive plan and downplaying the severity of decreases in its upfront commitments. The case is 1:24-cv-07594, Roy v. Ittycheria et al.
Who Got The Work
Amy O. Bruchs and Kurt F. Ellison of Michael Best & Friedrich have entered appearances for Epic Systems Corp. in a pending employment discrimination lawsuit. The suit was filed Sept. 7 in Wisconsin Western District Court by Levine Eisberner LLC and Siri & Glimstad on behalf of a project manager who claims that he was wrongfully terminated after applying for a religious exemption to the defendant's COVID-19 vaccine mandate. The case, assigned to U.S. Magistrate Judge Anita Marie Boor, is 3:24-cv-00630, Secker, Nathan v. Epic Systems Corporation.
Who Got The Work
David X. Sullivan, Thomas J. Finn and Gregory A. Hall from McCarter & English have entered appearances for Sunrun Installation Services in a pending civil rights lawsuit. The complaint was filed Sept. 4 in Connecticut District Court by attorney Robert M. Berke on behalf of former employee George Edward Steins, who was arrested and charged with employing an unregistered home improvement salesperson. The complaint alleges that had Sunrun informed the Connecticut Department of Consumer Protection that the plaintiff's employment had ended in 2017 and that he no longer held Sunrun's home improvement contractor license, he would not have been hit with charges, which were dismissed in May 2024. The case, assigned to U.S. District Judge Jeffrey A. Meyer, is 3:24-cv-01423, Steins v. Sunrun, Inc. et al.
Who Got The Work
Greenberg Traurig shareholder Joshua L. Raskin has entered an appearance for boohoo.com UK Ltd. in a pending patent infringement lawsuit. The suit, filed Sept. 3 in Texas Eastern District Court by Rozier Hardt McDonough on behalf of Alto Dynamics, asserts five patents related to an online shopping platform. The case, assigned to U.S. District Judge Rodney Gilstrap, is 2:24-cv-00719, Alto Dynamics, LLC v. boohoo.com UK Limited.
Featured Firms
Law Offices of Gary Martin Hays & Associates, P.C.
(470) 294-1674
Law Offices of Mark E. Salomone
(857) 444-6468
Smith & Hassler
(713) 739-1250