An appeals court has overturned a verdict that ordered Johnson & Johnson to pay $151 million to five people who received its Pinnacle hip implant. The appellate court overruled the prior verdict on the grounds the plaintiffs’ lawyer introduced “inflammatory character evidence” linking J&J to bribes allegedly paid in Saddam Hussein’s Iraq.
The case is the second of the bellwether trials arranged to enable the valuation of the claims brought against J&J’s DePuy by users of its metal-on-metal Pinnacle devices. DePuy pulled the devices after the FDA strengthened its rules on metal-on-metal hip implants in 2013. But by then a large number of people already claimed to have suffered medical problems as a result of the implants, leading to the 10,000 product liability lawsuits J&J says it faces today.
A federal jury ruled in favor of the five plaintiffs in the second bellwether trial. J&J was ordered to pay $502 million, a sum that was later reduced to $151 million. Now, J&J has got the result tossed out, setting the stage for a retrial.
In overturning the ruling, U.S. Circuit Judge Jerry Smith pointed to many shortcomings of the original trial. Most strikingly, Smith picked apart the judge’s decision to allow the plaintiffs’ counsel Mark Lanier to refer to a 2011 settlement covering kickbacks J&J subsidiaries allegedly paid in countries including Iraq. As Smith sees it, the evidence marred the result.
“Lanier tainted the result by inviting the jury to infer guilt based on no more than prior bad acts,” the judge wrote (PDF). “Lanier repeatedly referenced bribes to the Hussein ‘regime,’ despite that the alleged bribes involve neither DePuy nor its products. Crucially, he then invited the jury to infer J&J’s liability based solely on that.”
Smith’s ruling tees up a retrial. Lanier told Bloomberg he is ready to go again immediately, adding that he thinks “we’ll get more money the next time around.”