Following up a story I wrote about earlier this week, today’s New York Times reports that a Los Angeles jury has “ordered Johnson & Johnson to pay more than $8.3 million in damages… in the first of more than 10,000 lawsuits pending against the medical products maker” and its subsidiary, DePuy Orthopedics.
The lawsuits stem from allegations that DePuy knew of problems with its all-metal Articular Surface Replacement (ASR) hip implant long before the product was formally recalled in 2010, yet failed to act.
Of key interest for unsafe medical product victims here in Oregon or elsewhere are some of the legal technicalities of the jury verdict. According to the Times the jury award, which was announced Friday, does not include punitive damages because the jury found that DePuy “did not act with fraud or malice.” As the paper goes on to explain, however, it is not immediately clear how this will impact the thousands of other ASR-related legal actions. Though the article does not say so, this is partly because today’s case was decided by a state court in California. Different courts in other cities or states may view the matter differently, and state laws on medical product liability also vary from place to place. Another ASR-focused trial is scheduled to begin next week in Illinois. All that said, it is important for anyone suffering from what they believe to be an ASR-related injury to understand the details of the California jury’s award. According to the Times the jury ordered Johnson & Johnson to pay the plaintiff, a former prison guard from Montana, “$338,000 to cover his medical expenses. It also ordered him to be paid $8 million to cover his pain and emotional suffering.”
As the paper reports, all-metal hip replacements are no longer in widespread use because of their high failure rate, “but data from orthopedic registries suggests that the ASR was far worse than many competing products… internal Johnson & Johnson documents that became public during the trial indicated that company executives were told by surgeons, who were also paid consultants to the device maker, that the design of the ASR was flawed.”
The company still asserts that it acted responsibly in waiting as long as it did to start the recall, a claim that is hard to believe when considering the evidence from the trial. Speaking as an unsafe medical products attorney here in Portland, the most important takeaway for victims and their loved-ones is that justice for wrongs like these can be achieved through the court system. The fact that the jury chose not to award punitive damages is disappointing, but does not change the broader fact that it held the company responsible for its casual choice to put profits ahead of people in this important first test case.
New York Times: Johnson & Johnson Must Pay in First Case on Hips