Brenda Fulmer and Cal Warriner, the partners who lead Searcy Denney’s Mass Tort Unit, recently filed four additional individual lawsuits on behalf of patients who were injured by Pinnacle metal-on-metal hip implants. The law firm has filed dozens of cases since the Pinnacle hip implant MDL litigation first began in May of 2011. Federal judge Ed Kinkeade oversees MDL No. 2244, In Re: DePuy Orthopaedics, Inc. Pinnacle Hip Implant Products Liability Litigation (Case No. 3:11-md-0244), which is pending in the United States District Court for the Northern District of Texas in Dallas, Texas.
These plaintiffs (who hail from Englewood, Florida; Fort Lauderdale, Florida; Lake Wales, Florida; and Charlotte, North Carolina) have all endured similar adverse experiences with Johnson & Johnson’s Pinnacle MOM hip implant design. All were young, active patients who were led to believe years ago, at the time that they were implanted, that hip implants with a metal liner and metal femoral head provided better outcomes for patients than other hip prosthesis designs that included plastic or polyethylene liners coupled with ceramic or metal femoral head components.
Patients were reassured that the metal-on-metal hip implants would permit them to be more active and would last much longer than older hip implant designs. For each of these patients, however, their experiences were much different than advertised by the device manufacturer and promoted by their implanting orthopedic surgeons. These patients, as well as the more than 8,000 other plaintiffs who have filed lawsuits in the national litigation effort, developed a number of conditions consistent with a defective design of the Pinnacle hip implant, including elevated levels of cobalt and chromium in the bloodstream; inflammatory fluid around the hip implant; presence of pseudotumors; hip and groin pain; and the need to undergo revision surgeries to remove the failed Pinnacle implants after only a few years of implantation.
Now that the complaints have been filed, these plaintiffs will have their individual lawsuits included in the MDL proceedings pending before Judge Kinkeade. Much of 2015 has been devoted to a retooling of the Plaintiffs’ cases due to the loss in the first Pinnacle MDL trial in the fall of 2014 and a number of new studies and publications relating to the excessive failure rates of Pinnacle metal-on-metal hip implants as well as other, similar hip implants manufactured by DePuy, Zimmer, Biomet, and Wright Medical.
The next trial in the MDL will begin on January 6, 2016, before Judge Kinkeade in Dallas. The MDL judge initially selected 10 individual cases to be worked up for this second MDL trial, and that bellwether trial pool has now dropped to 6 plaintiffs. Over the past 6 months, the parties have been engaged in extensive case-specific and expert witness discovery. Judge Kinkeade is expected to rule on a number of legal and evidentiary issues in the coming weeks, as well as selecting the case or cases to be included in the January of 2016 jury trial. The prospect of a multi-plaintiff trial is always something that draws strong objections from the Defendant, even though it is a highly efficient way to address mass tort claims such as the Pinnacle metal-on-metal claims.
When a hip implant manufacturer is defending an individual case, it is easy for the jury to be persuaded that a particular plaintiff’s injuries are due to personal issues of the plaintiff (such as a genetic pre-disposition, surgeon error, or other unrelated medical conditions) rather than a defect in the product. When a jury is permitted to hear about multiple plaintiffs who have suffered similar events and have nothing in common other than the fact that they were implanted with the same type of defective hip implant, the defendant is hampered in its ability to essentially “blame the plaintiff” in an effort to avoid liability for harm caused by a defective product.
In October of 2015, DePuy filed a motion seeking to remove another 3 cases from the current bellwether trial pool, as each of these plaintiffs had the same orthopedic surgeon. Apparently, this treating orthopedic surgeon is one of two orthopedic surgeons hired by DePuy to serve as an expert witness as a consultant and to defend the thousands of pending lawsuits, and DePuy contends that it would be unfair for these particular plaintiffs to be included in the next trial since DePuy will be deprived from using one of their key expert witnesses since they cannot expect the expert to essentially testify against his own patients. The plaintiffs have claimed in recent filings that DePuy intentionally hired this particular surgeon in an effort to undermine the patient-physician relationship. The plaintiffs also claim that payments made to the orthopedic surgeon over the years when he served as a consultant to DePuy may render DePuy liable for alleged breaches of his duty of loyalty to the patient.
DePuy contends that including these cases in the bellwether trial pool could lead to a “side show” that focuses more on these relationships rather than the merits of the cases. Judge Kinkeade has not yet ruled upon these unique issues, but is expected to do so shortly.