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A federal judge postponed the next Johnson & Johnson DePuy Pinnacle hip implant test trial, following a request from the U.S. Court of Appeals for the Fifth Circuit ( In re DePuy Orthopaedics Inc. Pinnacle Hip Implant Prod. Liab. Litig. , N.D. Tex., No. 15-3489, trial set 9/18/17 ).
The trial against J&J and its unit DePuy Orthopaedics, Inc. was set to start Sept. 5 before Judge Ed Kinkeade of the U.S. District Court for the Northern District of Texas.
But Kinkeade pushed the start date to Sept. 18. The plaintiffs, eight New Yorkers, allege the metal-on-metal Pinnacle prosthesis was prone to premature failure.
The postponement came after a divided Fifth Circuit panel found “grave error” in an earlier ruling by Kinkeade that the trial court in Dallas had jurisdiction, or authority, to hear the claims of the non-Texas plaintiffs.
The panel majority denied the defendants’ petition for a writ of mandamus that would have ordered Kinkeade to stop the trial. But the judges nonetheless requested him to halt the proceeding.
Meanwhile, the plaintiffs have asked the full Fifth Circuit to reconsider its rulings.
In light of the Fifth Circuit’s decision and the plaintiffs’ motion for rehearing, “the trial setting is continued on the Court’s own motion until September 18, 2017, in deference to the Fifth Circuit,” Kinkeade said.Kinkeade presides over some 9,300 cases pending in federal multidistrict (MDL) proceedings involving DePuy Pinnacle hip implants.
The proceeding would be the fourth test trial for plaintiffs in the Pinnacle litigation.
J&J won the first test trial, but lost the next two, all in the Northern District of Texas.
In March 2016, a jury awarded five Texas plaintiffs $142 million in compensatory damages and $360 million in punitive damages. The punitive award was cut to $10 million, applying Texas damages caps. In December 2016, jurors awarded $1 billion in punitive damages and $32 million in actual damages to six California plaintiffs. Kinkeade later slashed the punitive award in half. The defendants have appealed both verdicts.
Skadden, Arps, Slate, Meagher & Flom, L.L.P. represents Johnson & Johnson and DePuy.
Kenneth W. Starr; the Lanier Law Firm; Simmons, Hanly, Conroy; and others represent the plaintiffs.
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