(Rewrites throughout, adds trial background and plaintiffs’ lawyer quote, adds Dallas dateline)
By Jessica Dye and Lisa Maria Garza
NEW YORK/DALLAS, Oct 23 (Reuters) - Johnson & Johnson was found not liable by a Texas jury on Thursday in the first case to go to trial over whether Pinnacle hip implants made by the company’s DePuy Orthopaedics unit were defective.
The test case had high stakes for the pharmaceutical giant, which is hoping to avoid a replay of a $2.5 billion settlement it agreed to last year for a different metal-on-metal hip device.
The Dallas federal jury ruled unanimously against the plaintiff Kathleen Herlihy-Paoli, who said the two metal-on-metal Pinnacle hips she received in 2009 were faulty and that the company failed to warn patients and doctors about the device’s risks.
DePuy had said the implants were improperly positioned, and not to blame for her injuries. Jurors needed about two days to deliberate, after a seven-week trial.
Plaintiffs’ lawyers selected Herlihy-Paoli’s lawsuit to be among the first to go to trial out of more than 6,600 lawsuits over the Pinnacle hips. The unanimous win for DePuy is expected to affect its approach to the rest of the lawsuits, which are consolidated before U.S. District Judge Ed Kinkeade.
DePuy spokeswoman Mindy Tinsley said the company was pleased with the verdict and was committed to the “long-term and vigorous defense” of the litigation.
The metal-on-metal device “was appropriately developed, thoroughly tested and responsibly marketed,” she said in a statement.
A lawyer for Herlihy-Paoli, Mark Lanier, called the case “the first skirmish in what is likely to be a long war.”
“We still plan to press on with fierce dedication to clients we believe have been tragically wronged,” he said.
Herlihy-Paoli said she required multiple surgeries to fix and replace her implants after the surrounding tissue became infected and the level of the metal cobalt in her blood soared to 85 times the normal level.
Her 2012 lawsuit said the device’s metal components rubbed together, shedding metal ions.
At trial, lawyers for Herlihy-Paoli accused DePuy of aggressively marketing the devices to more active people, while concealing abnormally high failure rates.
DePuy’s lawyers countered that the devices were safe when used and implanted properly. They also said Herlihy-Paoli unfairly targeted DePuy for problems linked to different metal-on-metal hips, such as the company’s ASR devices.
Last year, DePuy agreed to pay $2.5 billion to settle more than 7,000 lawsuits over the ASR devices, which it recalled in 2010.
DePuy stopped selling the metal-on-metal Pinnacle devices in 2013.
Carl Tobias, a University of Richmond law professor, called the verdict surprising and said jurors may have responded to DePuy’s argument that the hips may have been improperly positioned.
“They can take some comfort in this verdict,” he said, referring to DePuy. “But I’m sure there will be more.”
The case is Herlihy-Paoli v. Pinnacle, U.S. District Court for the Northern District of Texas, No. 12-4975. (Reporting by Jessica Dye in New York and Lisa Maria Garza in Dallas; Editing by Chris Reese, Bernard Orr and David Ingram)