Over the past few weeks a trial was underway in the first case alleging harm caused by the now-recalled versions of the Depuy hip implants. As we have often discussed in the last two and a half years, several thousand similar claims have been made, all alleging various harm caused by lack of proper warning and prudent action by Depuy Orthopaedics (and parent company, Johnson & Johnson). The company has already set aside significant sums of money in anticipation of the litigation and eventual payouts to those affected.
It remains unclear how each individual case will be handled. However, the end of this first trial is a good indication of how these matters may ultimately play out.
Verdict for $8.3 Million
As explained in a recent Bloomberg News article, last week the jury in the first case returned with a verdict in favor of the plaintiff. The plaintiff was a retired prison security guard who received a DePuy ASR XL hip implant in late 2007. Less than five years later, in February of 2012, the implant was finally removed after causing significant pain, suffering, and internal damage. The defective hip caused the man to use a wheelchair. He noted that had, “a kind of stabbing type of pain. It was debilitating. I couldn’t do anything, couldn’t walk long distances.”
Eventually, upon learning about the recall and being advised of the legal ramifications of the company’s actions, the man sought out counsel and filed a case. The matter went to trial earlier this year, ultimately spending five weeks there before being handed over to the jury for deliberations. After deliberating for about six days the panel returned a verdict in favor of the former patient. He was awarded over $8.3 million in compensatory damages. Slightly over $300,000 of the award goes directly for medical expenses while the remaining $8 million was for pain and suffering caused by the lengthy ordeal that the man was forced to endure.
Punitive damages were not found in this case. That is not uncommon, as a high bar must be met for a jury to award those damages which are akin to punishment for the companies conduct–as opposed to compensation for direct harm suffered by the plaintiff.
Regardless, the company’s attorneys argued after the fact that they plan to appeal the verdict. This is also not surprising. Because this is the first case, the company will expectedly fight until the end to set a precedent and try to position itself for the future. It is important to remember that the appeal is not simply a “do over.” Instead, the company must show specific legal errors that were made which may have influenced the verdict. It is insufficient simply to show that they disagreed with the jury’s decision.
This jury verdict represents resolution in just one case out of nearly 11,000 Depuy implant lawsuits that have been filed by those harmed by the defective hip implants. Some of those cases may go to trial–a second is already about to get underway–while others may settle. There is not necessarily anything in this particular outcome that guarantees an outcome in the other cases. In fact, some argue that considering the scope of the cases it is likely that punitive damages will probably be found by a jury somewhere.
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