On March 17, 2016, St. Patrick's Day, a Dallas federal court jury saw green, awarding almost $500 million to five plaintiffs in a consolidated trial against DePuy Orthopedics and J&J over the Ultamet hip implant. There will be plenty for the trial court to (re)consider in reducing the verdict and even more for the Fifth Circuit to assess, including consolidating five plaintiffs for a single trial, presentation of prejudicial and irrelevant evidence and the issue of preemption for 510k devices.
Foul ball results in homerun for plaintiffs
To use a baseball analogy, in J&J's Ultamet Hip Implant medical products liability mass tort litigation, plaintiffs get 8,000 swings at the plate and J&J needs to throw 8,000 unhittable strikes. This scenario is all the more difficult with multiple batters swinging at each pitch. Litigation of this magnitude—which has more than 8,000 plaintiffs with more being added every week—places a great burden on the judge presiding over the MDL to be fair in calling balls and strikes and not allow runners to reach base on foul balls. A trial before the MDL judge who has overseen all of the pretrial proceedings has the potential to produce a balanced result and can serve as an important bellwether to help the parties to resolve or dispose of all claims. On the other hand, when a verdict appears heavily one sided, it may cause more harm than good.
Both sides now face obstacles
This headline is now taking center stage, and colossal problems loom for both J&J and the plaintiffs. A huge verdict like this one makes it a virtual certainty that the docket of cases will continue to grow. For plaintiffs, the bar is now very high, with expectations of massive recoveries likely producing more claims and more litigation for the foreseeable future. If the plaintiffs' lawyers are not able to talk their clients down out of the stratosphere, the parties will have few options but to aggressively prosecute more cases. For J&J, this verdict makes the goal of any global settlement desirable but unattainable any time soon.
As the companies take a sober look at the evidence that plaintiffs employed to persuade the Dallas jury to grant such a large award, they will work to determine why the jury did not buy the narrative the companies presented, i.e. that they are responsible and compliant medical device manufacturers. In the meantime, it is imperative that the companies investigate individual claims to identify those that could counter the March 17, 2016, verdict and strive to keep all the claims on the field in the MDL ballpark.
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