Johnson & Johnson (J & J) and DePuy on April 18, 2017, filed the appeal In RE: DePuy Orthopaedics Inc., Product Liability Litigation, Case No. 17-10030, US Court of Appeals for the Fifth Circuit, which was unsealed the following month. The appeal requests an oral argument with the US Court of Appeals for the Fifth Circuit to resolve the appeal.
The appeal arises from the second trial in a multidistrict litigation (MDL) involving claims of more than 9,000 plaintiffs, alleging that they received a Pinnacle Ultamet hip implant during hip replacement surgery and were later injured by metal debris generated from the implant's metal-on-metal design.
This is the second appeal arising from the second trial in "one of the largest multidistrict (MDL) proceedings currently pending in the federal court system, according to the brief.
The 2016 trial involved five plaintiffs and lasted more than two months, ending in a $502 million jury verdict against J & J and DePuy. That verdict was later reduced to $151 million by the district court due to Texas' statutory cap on exemplary damages.
According to the brief, J & J and DePuy argue that the companies are entitled to a new trial because plaintiffs in the lawsuit allegedly lied about paying their expert witnesses in the second MDL trial.
Attorneys for J & J and DePuy allege in the brief that plaintiffs in the second trial later produced checks on the way to a third trial that they had sent to two of their key expert witnesses. Counsel for the plaintiffs had repeatedly told the jury that the expert witnesses were volunteering their time "because of concern" for the plaintiffs, according to the brief.
According to the appeal document:
"Further investigation revealed that plaintiffs’ counsel, Mark Lanier, had
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"The second expert admitted that he expected to be paid all along—in no small part because Lanier told him, “don’t worry about” sending an invoice—and then, sure enough, received a check for $30,000 as soon as the trial was over."
The "purported volunteer status" of the expert witnesses was a central theme in the trial, according to the appeal.
“By misrepresenting the facts about whether those experts had been or would be compensated, plaintiffs’ counsel unfairly imbued them with a false aura of objectivity and credibility, both in the abstract and vis-à-vis the defense experts,” according to the brief.