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J&J gets some upside in DePuy hip-replacement litigation

When a judge allows highly prejudicial and case-irrelevant evidence to be “wafted before the jury to trigger its punitive instincts,” it is likely that an appellate tribunal will take action.

Which is exactly what a federal appeals panel did last week in New Orleans. Appellate judges cited a lower court’s error in allowing plaintiffs’ counsel to inject unnecessarily inflammatory information into a consolidated trial regarding hip replacements. That allowance worked a high-dollar verdict against medical device maker Johnson & Johnson that the appellate panel stated should not have issued. The court threw out the award, leaving the option of a new trial open for the plaintiffs.

Their legal counsel vows to press on, stating in the reversal’s wake that “we’ll get more money the next time around.”

J&J hopes otherwise, of course, with company representative lauding the appeals panel’s reversal of a $151 million award in a case they claim was “rife with errors that made it impossible for the defendants to get a fair trial.”

The J&J artificial hip litigation is unquestionably a big deal. A recent Bloomberg article discussing its history notes that more than 10,000 lawsuits have been filed against the company and its DePuy subsidiary. Last week’s ruling spelled a most welcome development for the defendants, who must now gird up for an avalanche of future litigation.

Among other things, the appellate judges objected specifically to allowed evidence focusing upon settlements paid out by J&J concerning acts of overseas bribery geared toward the promotion of company products in Europe. The panel stated that the evidence invited the jury “to infer guilt based on no more than prior bad acts.”

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