Christopher v. Depuy Orthopaedics, Inc. (In Re Depuy Orthopaedics, Inc., Pinnacle Hip Implant Prod. Liab. Litig.)
888 F.3d 753
5th Cir.2018Background
- Five plaintiffs (Aoki, Christopher, Greer, Klusmann, Peterson) received DePuy’s Pinnacle metal-on-metal (MoM) Ultamet hip liners, suffered adverse tissue reactions, and required revision; they sued DePuy and parent Johnson & Johnson (J&J) in MDL bellwether trials.
- Jury returned a $502 million verdict (compensatory + exemplary); Texas statutory cap reduced exemplary damages to $9.6 million; defendants moved for JMOL, mistrial, dismissal for lack of jurisdiction, and Rule 60(b)(3) relief—most were denied.
- Plaintiffs alleged defective design (MoM vs. cross-linked metal-on-polyethylene (MoP)), failure to warn/marketing defects, and theories imputed liability to J&J (nonmanufacturer seller, negligent undertaking, aiding and abetting).
- Trial admission of inflammatory evidence (a Deferred Prosecution Agreement recounting bribes including to Iraq under Saddam Hussein, and a racial-resignation letter) and repeated prosecutor argument referencing those matters occurred; plaintiffs’ counsel also repeatedly characterized two expert witnesses (Drs. Bernard and Matthew Morrey) as unpaid, though post-trial payments and a pre-trial donation later surfaced.
- The Fifth Circuit (panel opinion) (1) affirmed many liability findings but (2) granted JMOL on some marketing and aiding-and-abetting claims, and (3) ordered a new trial because of serious evidentiary errors and counsel’s misconduct (vacating denial of Rule 60(b)(3) relief regarding expert-payments deception).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Design defect — Is cross-linked MoP a viable safer alternative to MoM? | MoP (cross-linked) was a feasible, safer alternative that would have reduced osteolysis and other MoM harms. | MoP is a different product in kind, not a proper alternative; MoM offered durability advantages for younger patients. | Court: MoP can be a permissible alternative design; fact question for jury—no JMOL for DePuy on design generally. |
| Preemption — Do FDA/510(k)/MDA rules preempt Plaintiffs’ state-law design claims? | Plaintiffs limited claims to Ultamet’s defects; verdict does not obstruct FDA objectives. | State-law design liability would conflict with FDA’s regulation of MoMs and the agency’s choices. | Court: No obstacle preemption; plaintiffs’ product-specific claims do not frustrate FDA objectives. |
| Failure-to-warn/marketing causation (learned intermediary) | Warnings were inadequate as to metallosis, pseudotumors, and magnitude of risk; physicians would have chosen MoP or altered treatment if adequately warned. | IFUs and other materials adequately warned; plaintiffs lack evidence doctors relied on or would have changed decisions. | Court: JMOL granted for Greer and Peterson (insufficient evidence that their doctors read/were influenced by warnings); claims survived for Aoki, Christopher, Klusmann. |
| J&J liability and personal jurisdiction | Plaintiffs: J&J materially participated in design/marketing, held out product as its own; amenable to stream-of-commerce jurisdiction in Texas. | J&J: acts were DePuy’s; parent-company label insufficient to establish jurisdiction or liability; aiding-and-abetting invalid under Texas. | Court: Specific jurisdiction over J&J proper under stream-of-commerce facts; aiding-and-abetting claim not recognized in Texas — JMOL for J&J on that claim; nonmanufacturer-seller and negligent-undertaking claims may stand on the jury record. |
| Evidentiary prejudicial error (DPA references, Saddam Hussein, racial letter) | Defendants opened door by discussing corporate conduct; evidence relevant to intent/knowledge. | Evidence of unrelated bad acts and hearsay were highly prejudicial and improperly used to prove liability. | Court: Admission/argument about the DPA/Hussein and racial-resignation letter was unduly prejudicial and invited forbidden propensity inferences — warranted a new trial. |
| Concealment of expert compensation (Rule 60(b)(3)) | Plaintiffs: Morreys were non-retained; payments were thank-you / not an agreement; non-disclosure harmless. | Defendants: Pre-trial donation, expectation of payment by Morrey Jr., and post-trial checks show misrepresentation that prevented effective impeachment. | Court: District court abused discretion in denying relief—counsel’s misrepresentations and nondisclosures prevented defendants from fairly defending; vacated and remanded. |
Key Cases Cited
- Casey v. Toyota Motor Eng’g & Mfg. N.A., 770 F.3d 322 (5th Cir. 2014) (Texas design-defect/risk-utility framework cited for elements and safer-alternative test)
- Hodges v. Mack Trucks, Inc., 474 F.3d 188 (5th Cir. 2006) (risk-utility and cost-benefit considerations in alternative-design analysis)
- Centennial Ins. Co. v. Ryder Truck Rental, Inc., 149 F.3d 378 (5th Cir. 1998) (sources for predicting state-law decisions)
- Caterpillar Inc. v. Shears, 911 S.W.2d 379 (Tex. 1995) (different-product vs. alternative-design analysis and limiting imposition of liability that would eliminate useful product categories)
- Brockert v. Wyeth Pharm., Inc., 287 S.W.3d 760 (Tex. App. 2009) (pharmaceutical different-product precedent explained)
- Riegel v. Medtronic, Inc., 552 U.S. 312 (U.S. 2008) (MDA preemption framework for PMA devices)
- Buckman Co. v. Plaintiffs’ Legal Comm., 531 U.S. 341 (U.S. 2001) (federal oversight and preemption background regarding device regulation)
- Centocor, Inc. v. Hamilton, 372 S.W.3d 140 (Tex. 2012) (learned-intermediary and warning causation; use of objective evidence)
- Rozier v. Ford Motor Co., 573 F.2d 1332 (5th Cir. 1978) (Rule 60(b)(3) standard — nondisclosure/misconduct preventing fair presentation of defense)