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Fourth Johnson & Johnson Depuy Orthopaedics Lawsuit is underway

Fourth Johnson & Johnson Bellweather Trial Begins

October 30, 2017
The fourth bellwether trial for Johnson & Johnson subsidiary Depuy Orthopaedics is underway in Texas. More than 9100 cases remain in the MDL. Questions have arisen about the value of this trial, given the procedural history of the matter.

Less than a week before the fourth bellwether was set to begin, a Fifth Circuit panel ruled that U.S. District Judge Kinkeade, who oversees the MDL, reached a “patently erroneous” result and clearly abused his discretion by holding that Johnson & Johnson and DePuy had waived their right to object to his court in Texas. In a MDL, there has to be consent to a trial going forth in the jurisdiction in charge of the MDL. The Plaintiffs assert that the defense gave such consent.

The panel requested — but did not mandate — Judge Kinkeade cancel the upcoming trial.

The plaintiffs sought rehearing en banc from the Fifth Circuit, but the panel denied the motion.

Given this ruling by the Fifth Circuit, a question arises about the value of this trial. Johnson and Johnson has made it clear that the trial proceeding is reversible error and will therefore do nothing to advance the ultimate resolution of the litigation.

Any legal issues aside (and it clear that a Plaintiff’s victory will be instantly appealed), bellwether trials have enormous value in our opinion. This trial is a chance for Johnson & Johnson to present their best evidence about the safety of metal on metal hips, and the Depuy in particular. Conversely, the Plaintiffs will present their best evidence as to why these products are defective and dangerous.

The jury will make a ruling about the safety of this product. If Johnson & Johnson loses, regardless of any appellate issues, it will mean that a jury decided their best defense on the merits. A win by the Plaintiffs will embolden the vigorous prosecution of the almost 10,000 claims currently in file in Federal Court. will update when the jury reaches a verdict.

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