Tuesday, March 12, 2013

Metal hip trial reveals ethical dilemma for plaintiffs' lawyers

Thompson Reuters News and Insights  [ interesting insight into the politics of plaintiff law....I suggest reading especially if you think you have a unique or special case and have been advised to "sit back and wait" until the bell weather cases start.  Fascinating indeed! ]

By Terry Baynes

(Reuters) - When lawyer John Gomez first took on the personal-injury case that resulted in an $8.3 million verdict on Friday, he knew his client was not the ideal first plaintiff to go to trial against Johnson & Johnson for damage allegedly caused by J&J's artificial metal hip.

The client, a retired prison guard, had terminal cancer unrelated to the hip replacement, as well as a history of smoking, vascular disease and diabetes. There clearly were other plaintiffs whose lawsuits would have better tested what damages, if any, J&J might have to pay over the faulty hip implants, said Gomez.

But Gomez knew that his client, Loren Kransky, might not live to see a day in court unless Gomez requested and secured the earliest possible trial date. In spite of pressure from fellow plaintiffs' lawyers across the country, Gomez decided to use a California statute that allows plaintiffs with grave medical conditions and less than six months to live to jump to the front of the line for trial in state court, he said.

"Collectively, the group was concerned about some possible problems with the case," Gomez said. "I knew it was a difficult case, but I'm old-fashioned. I work for one client at a time and wanted to do what was best for Mr. Kransky."

The implant at issue, the Articular Surface Replacement, or ASR, was an all-metal device made by a unit of J&J, DePuy Orthopedics Inc. The ASR, which was reviewed and cleared by the Federal Drug Administration in 2005, was designed to be more durable than traditional implants, which combine a ceramic or metal ball with a plastic socket.

DePuy sold some 93,000 of the ASR hips, but issued a recall in 2010 after a higher-than-expected failure rate and complaints by doctors that the ASR in some instances was shedding metal debris that could harm patients. The company is now facing nearly 11,000 lawsuits over the implants. Kransky's lawsuit was the first one to reach a verdict.

A company spokeswoman said the ASR XL was properly designed, that DePuy's actions concerning the product were appropriate and responsible and that it plans to appeal the verdict.


As it turned out, the $8.3 million award for Kransky from a Los Angeles jury was relatively high, given the limitations of the case, lawyers said. But Gomez's decision to press for his client's interests ahead of other plaintiffs with stronger cases revealed a common ethical dilemma for plaintiff lawyers in similar large-scale mass tort litigation.

Lawyers in such tort cases have a duty both to their client and to the committee of plaintiffs' lawyers who steer the overall litigation. The cases, especially when they involve injuries from medical devices or drugs, are highly managed by the leadership committee. Kransky's case against J&J's DePuy, for example, is part of coordinated litigation in California, known as a Judicial Council Coordinated Proceeding. There are also consolidated litigations over J&J hip replacements in other states, while the federal cases are consolidated in multidistrict litigation in Toledo, Ohio.

Each set of litigation has its own leadership team that goes through an extensive process of selecting the first trials, known as bellwethers, which are supposed to be representative examples that can shed light on the outcomes in other cases.

Typically, both the plaintiff and defense lawyers submit their picks into a bellwether pool, and either the lawyers negotiate or the judge will select the most representative cases to proceed to trial first. Individuals with complicated medical histories or short life expectancies, such as Kransky, often do not make the cut because of the potential lower damages for future harm, lawyers said.
Having a problematic plaintiff jump to the front of the line and disrupt a carefully planned strategy can cause significant friction, said James O'Callahan, one of the plaintiff lawyers coordinating the California hip implant litigation.

"Every plaintiffs' lawyer at some point has been in a position where they have to act on behalf of their client even if they know it's troublesome for other plaintiffs in the case," he said.

That is what happened in the Kransky lawsuit. By the time Gomez asked for an expedited trial date, other plaintiff lawyers on the hip replacement cases in California, Ohio and elsewhere had been working on their strategy for years. Gomez's decision to jump the line threatened to disrupt preparations that were well under way, if not completed.

"You have all these lawyers in the country working together," O'Callahan said. "Then you have John Gomez in San Diego saying I have to do this. The reaction is: 'Wait, we tried to plant things carefully to get the bellwethers done.'"

A lawyer's primary duty, of course, is to zealously represent his or her client. Once Gomez conveyed that he was not acting on his own desire but rather his client's need, the leadership teams accepted that Kransky's trial would be the first, he said.


The federal and California leadership teams also contributed significant resources to help Gomez present the best case possible at the five-week trial, said lawyers involved in the litigation. Two prominent California lawyers, Brian Panish and Michael Kelly, a leader in the California consolidated litigation, joined Kransky's legal team while others volunteered their time.

The surprise to some plaintiff lawyers was that the jury awarded Kransky $338,000 for economic damages and $8 million for pain and suffering, even though the panel rejected Kransky's argument that DePuy failed to adequately warn of risks associated with the device.

The award is "a clear sign that jurors are going to penalize the company when things like this, that were completely preventable, happen," said Peter Flowers, a lawyer for the plaintiff in the second hip implant trial, set to begin on Monday in Illinois state court.

Ellen Relkin, a lead plaintiffs' lawyer in the federal litigation, said that awards in other cases could be even higher, since most other plaintiffs have a longer life expectancy than Kransky and therefore can expect larger damages.

J&J's DePuy unit, which argued that Kransky's other medical ailments, alongside evidence his implant had been installed at the wrong angle, caused his problems, said it planned to appeal the jury's decision. Among the grounds DePuy spokeswoman Lorie Gawreluk cited in a statement were the court's refusal to allow the company to tell the jury about the Food and Drug Administration's review and clearance of the product.

Victor Schwartz, a defense lawyer at Shook Hardy & Bacon not involved in the litigation, said Kransky's case reveals how weaknesses in a plaintiff's case don't necessarily translate into a win for the defendants once the case is in the jury's hands. A jury will sometimes overlook whether there were other causes of an injury and reach a verdict that may be overturned on appeal, he said.
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