Saturday, March 9, 2013

Johnson & Johnson Must Pay $8.3 million in First Hip-Implant Case -

This plaintiff's victory in the first design defect trial involving the dangerous ASR all-metal hip implant is unsurprising.  The win demonstrates the viability of design defect claims for medical devices.  In Section 6(c) the product liability Restatement Third sought to bar such claims - a position I criticized ten years ago in the UCLA Law Review, and elsewhere..  Fortunately the Restatement was not widely adopted.  But five years ago in Riegel v. Medtronic the U.S. Supreme Court, so often a graveyard for product liability claims, barred design defect cases for devices that went through full new product review by the FDA.  
Plaintiffs in the DePuy were were able to proceed because J&J got approval by claiming that the new device was of a general type in use before 1976, thereby avoiding the new product approval process which the Supreme Court has said preempted tort claims for negligent design.
Surprisingly the jury's rejection of punitive damages may be good news for plaintiffs.  The ample $8.3 million award demonstrates the confidence the jury had that J&J's conduct was wrongful.  Alfred Julien - the great trial lawyer of the 60's and 70's - avoided punitive damages claims.  His insight was that focusing on the failure to take precautions was the most effective way to persuade a the jury that there was a wrong to be righted - empowering it to make a fully adequate damages award.  
Here - as in the typical successful product liability case - the jury learned that engineers and physicians who warned about hazards were overridden by marketing execs.  Neglect of the interests of others - rather than the intent to harm others - is the easier case to prove - and provides sufficient confidence to juries to make full compensation awards.- GWC
Johnson & Johnson Must Pay in First Hip-Implant Case -

A jury in Los Angeles on Friday ordered Johnson & Johnson to pay $8.3 million in damages in the first lawsuit to go to court against the company in connection with a now-recalled all-metal artificial hip implant.But the 12-person panel declined to issue punitive damages against the company’s DePuy orthopedic division, saying it did not act with fraud or malice in its marketing of the device.Johnson & Johnson faces some 10,000 lawsuits from patients who received the implant, which was known as the Articular Surface Replacement, or A.S.R.The A.S.R., which the company recalled in mid-2010, has one of the highest early failure rates of any orthopedic device sold in recent years.An internal Johnson & Johnson document introduced at the Los Angeles trial estimated that some 40 percent of patients who received the device will need to undergo a second operation to have it removed and replaced within five years.

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