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$8.3 million verdict gives lawyers first peek at metal hip litigation

By: DOLAN MEDIA NEWSWIRES//March 29, 2013//

$8.3 million verdict gives lawyers first peek at metal hip litigation

By: DOLAN MEDIA NEWSWIRES//March 29, 2013//

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By Sylvia Hsieh
Dolan Media Newswires

A jury awarded $8.3 million in the first case to go to trial over metal-on-metal hip replacement implants, providing a sneak preview of what’s to come in mass tort litigation over Johnson & Johnson’s DePuy ASR XL product.

The trial took place in California state court, where about 2,000 cases are consolidated. Another 10,000 cases await trial in federal multidistrict litigation.

“It was really more of an opportunity to see what the defense will be in these cases,” said Michael Kelly, an attorney for the plaintiff in the case and lead counsel in the federal MDL.

According to lawyers representing 65-year-old Loren “Bill” Kransky, the case was one of their weaker ones because their client had a long history of poor health, including diabetes, stroke, heart disease, and skin and kidney cancer. He got the first trial date because he was not expected to live more than six months.

“If the defense was going to have a strong opportunity to win a case, this was the case,” said Kelly, a partner at Walkup, Melodia, Kelly & Schoenberger in San Francisco.

The jury delivered a large compensatory award on the defective design claim, but rejected failure-to-warn allegations and awarded no punitive damages.

The lawsuits allege that the product, which uses a metal ball-and-socket joint, has a high failure rate and increases cobalt and chromium toxicity in the bloodstream, often requiring surgery to remove the device.

DePuy, a subsidiary of Johnson & Johnson, recalled the product from the market in August 2009. European studies showed a failure rate of 44 percent over a period of seven years.

‘A lot of horse pucky’

The plaintiffs’ team did not have an ideal client in Kransky, a retired prison guard who was 100 percent disabled even before he had hip replacement surgery. Among his 25 illnesses was a terminal form of kidney cancer.

The defense argued that the problems with Krasky’s hip were caused by a long-simmering infection, Kelly said.

But “that was a lot of horse pucky,” he said. “It was a convenient argument because chemotherapy depresses the immune system and compromises white blood cells.”

Defense attorney Michael Zellers, who represented DePuy, did not return a call seeking comment for this article.

According to Brian Panish, who also represented Kransky, none of the doctors who treated Kransky for his various ailments diagnosed an infection.

“It was a frivolous defense,” said Panish of Panish, Shea & Boyle in Los Angeles.

The plaintiffs’ attorneys told the jury from the start that Kransky was very sick and that they were not claiming damages for those illnesses.

“We told the jury over and over again he has a long history of smoking, was exposed to Agent Orange in the Vietnam War, and has kidney cancer, but those health problems are not related to the hip implant,” said Matthew Davis, another attorney at Walkup, Melodia, Kelly & Schoenberger.

According to Davis, it was the defense that brought up Kransky’s health history.

The defense put on experts to testify that the device failed because the surgeon put it in at too steep an angle and Kransky had an odd gait.

The plaintiffs’ team countered that Kransky’s doctor took the device out due to a concern that high levels of cobalt can cause tissue and bone to die and possibly lead to poisoning of the heart, kidney, bladder and brain.

But the defendant’s toxicology expert testified that metal debris could not cause systemic injury to the heart, kidney or brain.

On damages, Panish asked the jurors to award $5 million — the amount, he reminded the jury, that the defense’s toxicology expert was paid.

The jury of nine men and three women was more generous, awarding $8 million for pain and suffering and $300,000 for past medical bills.

Before trial, settlement talks were aborted after a mediation attempt that ended with the plaintiff asking for $2 million and DePuy offering $75,000.

‘We’ll do better next time’

The lawyers are buoyed by the verdict and say they will take what they learned into the next trial.

Panish said he would put on “a little less testimony” than the plaintiffs’ team did during the six-week trial here.

“The jury got bogged down in some detail,” he said.

Next time, Panish said he will focus more heavily on “all the things the company knew,” including complaints from doctors about the product’s failures and problems with the company database that prevented complaints from being logged.

“We’ll do better next time,” agreed Kelly, noting that he would focus more on testing the company conducted — but didn’t tell anyone about — that pointed to problems with the wear and tear on the product.

“The defense did a good job of saying the warnings talked about metal debris, and saying the devices, like tires, will eventually wear out or go flat. We didn’t do as good a job at showing this device was unique” in wearing out more than others, he said.

While the plaintiffs’ attorneys strategize for the next trial, they’re celebrating an early win.

“It’s a great verdict. We’re very pleased,” said Davis. “The defense was quite bullish about their chances of winning. This certainly splashes some cold water in their face.”

The case: Kransky v. DePuy, March 8, 2013; California Superior Court, Los Angeles County; Judge J. Stephen Czuleger.

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