Merely a week ago I wrote about what an $11.1 million jury verdict in a vaginal mesh lawsuit in New Jersey meant for other women with those meshes and involved in the nationwide litigation. Yesterday came big news in another litigation we are heavily invested in: the DePuy ASR hip implant recall. A jury in Los Angeles awarded over $8 million to a Loren "Bill" Kransky and his wife for injuries arising from his recalled DePuy ASR XL hip implant. (Reuters article, Bloomberg article.) Over $300,000 was for his medical expenses, and the rest was for pain and suffering.
It was obviously a big win, but the big question for us, our clients, and the other thousands of patients with recalled DePuy hip implants is: what does it mean for the other cases?
Initially, it doesn’t mean anything. Bill Kransky and his wife now have a verdict against Johnson & Johnson and DePuy and a couple related companies. The defendants will inevitably file post-trial motions arguing that the judge made erroneous rulings during the trial and that the jury made factual findings that could not rationally be supported by the evidence. These are all standard legal procedures, and they will almost inevitably result in an appeal, which will take months, potentially a year or more. Meanwhile, the thousands of DePuy lawsuits filed in the federal multidistrict litigation will continue moving forward.
That said, the verdict and the evidence developed at trial do create indirect benefits for other patients who received the recalled ASR XL hip and who have filed (or will file) claims, by showing how seriously juries take these injuries, and how upset they are with Johnson & Johnson / DePuy's cavalier attitude towards safety.
That said, let's start with a couple important distinctions in the
- The case was in California state court, not the Ohio federal court where the bulk of the DePuy ASR cases are being litigated. (The DePuy Pinnacle cases are in Texas federal court.)
- The reason this case went to trial before so many others was due to a special provision in California law allowing plaintiffs with severe health problems to accelerate their cases. Kransky has diabetes, cancer, kidney disease, heart disease, vascular disease, and other problems.
- As mentioned above, Kransky has many problems that most DePuy recall patients don't. For example, while large numbers of DePuy recall patients had high chromium and cobalt levels, and had to endure a painstaking revision surgery (plus weeks of recovery), few patients were unable to properly rehabilitate from a stroke like Kransky.
- The trial judge in the case was, at least in my opinion, was more friendly to the plaintiffs than many other courts would be. For example, the judge precluded Johnson & Johnson / DePuy Orthopedics from relying upon the FDA's nominal clearance of the implants through its 510(k) process. (I completely agree with the trial judge - I'm just saying that many other judges in the future may not.)
But perhaps the biggest distinction relates to the preparation of the defendants. While we, as plaintiffs' lawyers, have known for some time how strong the evidence was against the company, the company hasn't known how our theories and strategies would pan out at trial. Now they've seen one trial, put together by multiple teams from the multiple coordinated litigations. The defendants are spending literally millions of dollars on attorneys just to learn from these trials, and they will do so.