On July 21, 2016, the California Court of Appeal upheld a $8,338,116 judgment against DePuy Orthopaedics, Inc. (DePuy) in the first case in the country to go to trial involving DePuy’s defective ASR hip implants. DePuy is a division of Johnson & Johnson.
The plaintiff, Loren Kransky, who passed away while the appeal was pending, received a ASR model hip implant that had to be replaced after he began to suffer hip pain, difficulty in walking and elevated levels of metal ions in his blood. The ASR implants were recalled in August 2010 after they showed a higher than expected rate of failure. Plaintiff was represented on appeal and at trial by co-lead counsel Brian Panish of Panish Shea & Boyle LLP and Michael A. Kelly of Walkup, Melodia, Kelly & Schoenberger. Additional co-counsel at trial and on appeal were John H. Gomez of Gomez Iagmin Trial Attorneys and Dean A. Goetz, the Law Offices of Dean A. Goetz. Kransky’s estate was also represented in the appeal by Martin N. Buchanan of the Law Office of Martin A. Buchanan and Khaldoun A. Baghdadi of Walkup, Melodia, Kelly & Schoenberger.
“Today’s decision affirming the jury’s verdict will provide the Kransky family with some comfort after years of watching their husband and father suffer as a result of DePuy’s negligence.” said attorney Brian Panish.
During the five-week jury trial in 2013, Panish Shea & Boyle LLP partner Brian Panish gave the opening statement, the closing argument and examined many of the witnesses. DePuy took the position that the ASR hip implant was not defective and attributed Mr. Kransky’s problems with the device to his pre-existing health conditions, an infection and a failure by his surgeon to implants the ASR cup at the correct angle. Defense counsel asked the jury to return a defense verdict and award no damages but, instead, the jury found the ASR was defective and the cause of Plaintiff’s injuries, awarding him $338,116 for medical expenses and $8,000,000 for past a future pain and suffering – an especially significant amount because Mr. Kransky had advanced-stage kidney cancer. Since judgment was entered in March 2013, interest in excess of $2,750,000 has accrued on the initial jury award.
On appeal, DePuy challenged several evidentiary rulings by the trial court, including the exclusion of evidence related to the hip implant’s clearance by the federal Food and Drug Administration (FDA) for sale in the United States, and the admission of certain testimony by Kransky’s expert witness and his treating physician. The Court of Appeal disagreed, finding that “the trial court did not abuse its discretion in any of the evidentiary rulings.”
DePuy also contended that the jury verdict was not supported by substantial evidence, was internally inconsistent and that the non-economic damages award was excessive. The appellate court rejected those contentions, noting “because there are reasonable, consistent ways to understand and harmonize the jury’s causation findings, the verdict is not inconsistent, and we “find nothing in the jury’s verdict here to shock our conscience,” the $8 million damages award is not excessive as a matter of law.
DePuy Orthopaedics, Inc. was represented on appeal by Charles C. Lifland, Richard B. Goetz, Cynthia A. Merrill and Jonathan P. Schneller of O’Melveny & Myers.
As a result of the recalled DePuy ASR hip implant system, more than 9,000 lawsuits were filed, with the Kransky case chosen as the first case in the country to go to trial due the Plaintiff’s failing health. Many of the lawsuits have settled, including more than 200 filed by Panish Shea & Boyle LLP. The outcome of the Kransky trial significantly impacted the thousands of other cases that were brought against DePuy nationwide, playing a large part in valuing those remaining cases and providing an incentive for the medical device company to reach a global resolution in the litigation.
Read about the verdict here.
Read the Court of Appeal decision here.