April 26, 2018

Fifth Circuit reverses punitive damages award against Johnson & Johnson in hip implant case

The Fifth Circuit issued this opinion yesterday, reversing a $151 million judgment against Johnson & Johnson and its subsidiary, DePuy Orthopaedics, in a case involving alleged defects in its artificial hip implants.

The original jury award was $502 million, including $360 million in punitive damages, but the trial court reduced punitive damages award to $9.6 million pursuant to Texas's statutory cap.

On appeal, the Fifth Circuit concluded that the entire award was tainted by highly prejudicial and irrelevant evidence about (1) bribes that Johnson and Johnson allegedly paid to foreign officials, including Saddam Hussein, and (2) allegations of racial discrimination.  The court found that plaintiffs' counsel Mark Lanier invited the jury to infer J&J 's liability and punish it based solely on these improper considerations.

The court also found that Lanier misled the jury by creating the impression that two expert witnesses had volunteered to testify for the plaintiffs without any compensation, when in fact Lanier had written a $10,000 check to the witnesses' favorite charity before trial, and made large payments directly to the witnesses after trial.

Lanier, undeterred, told Bloomberg that he expects to get an even larger verdict when the case is retried.