Evidentiary Rulings Favor Plaintiffs, Lead to Half-Billion Dollar Verdict against J&J in MDL Bellwether

Plaintiff-favoring and highly prejudicial evidentiary rulings by a federal judge in Texas led last week to a nearly half-billion dollar jury verdict against Johnson & Johnson subsidiary DePuy Orthopaedics in the second bellwether case in multidistrict litigation over allegedly defective hip prosthetics.

As reported by Law360, the $497.6 million verdict — to be divided by five individuals plaintiffs and their attorneys — includes about $140 million in compensatory damages and $360 million in punitive damages.  The MDL comprises more than an additional 8,000 cases.

Evidentiary rulings by Northern District of Texas Judge Ed Kinkeade were politely characterized by attorneys as “unusual.”  To be less polite but more accurate, they were cravenly irresponsible as the judge effectively rubber-stamped plaintiffs’ lawyers’ requests to adduce so-called evidence about completely unrelated devices (pelvic mesh), wholly separate business units, and a nearly-decade old non-prosecution agreement entered into by the defendant, none of which was remotely germane to the hip prosthetic allegations at hand.

It’s clear from the jury form that introduction of the prejudicial evidence had the effect desired by plaintiffs’ counsel: to confuse and ultimately inflame jurors.  For example, with respect to four of the five plaintiffs, the jury specifically found that J&J had no prior knowledge of any purported defect in the devices yet, contrary to law, a $160 million punitive damages award was imposed nonetheless.

Judge Kinkeade should step in to vacate or otherwise moderate this monstrous verdict and, if he doesn’t, we hope J&J will appeal to the Fifth Circuit.