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
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
JUMPING THE LINE
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,"
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.
BACKUP FROM OTHER LAWYERS
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
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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