This post comes from the non-Reed Smith side of the blog.
It landed with a concussing thud that surprised no one. The $498 million verdict came last Thursday after weeks of evidence that included suicide, racism, tobacco pseudo-science, cancer, the proliferation of pelvic mesh litigation, Saddam Hussein, and alleged fraudulent practices in foreign countries. You might be wondering what type of case the jury was considering. That evidentiary line-up might make you think it was a wrongful death civil rights trial, or something worse. But it wasn’t. It was a Pinnacle hip implant trial. Really.
Before the verdict came, we were worried that something like this could happen. We wrote about it just as the jury was beginning deliberations. And then it happened, which should have been no surprise given the grouping of five separate plaintiffs for one bellwether trial and the noise that defendants were making about evidentiary rulings.
The question now is, what does it mean? Will it promote the ultimate resolution of the mass tort? Well, there’s little to suggest that it will. In fact, it seems more likely to do the opposite.
The defendants’ determination will harden. The trial record suggests that long ago defendants, DePuy and Johnson & Johnson, believed that they were being subjected to evidentiary rulings that were worthy of multiple mistrials. Their briefing on the jury charge and plaintiffs’ legal claims suggests similar concerns. Given all that, the adverse verdict likely did not surprise them, and its amount, which screams of potential problems at trial, only reinforced their beliefs. Accordingly, their focus almost surely will shift away from any settlement. It’s hard to fathom that the defense will accept such an out-sized verdict as indicative of anything relevant to settling these cases. Their focus, instead, will shift toward alternative approaches and forums to address their concerns. We expect that they have long prepared for this and will, in the least, begin a pitched battle in the appellate courts, and probably more. Defendants have in fact already indicated that they will do so.
Additionally, the verdict itself, simply by its amount, calls the trial into question. How could a half-billion dollar verdict provide meaningful information to value the plaintiffs’ inventory of cases? At that rate, $100 billion would settle only one-thousand cases. But there are thousands of additional cases; so good luck with that. Even if/when the trial court applies Texas’s statutory cap to reduce the jury’s ultra-high punitive damages award, it would still leave behind something like $150 million. A $150 million award is still wildly high. Plaintiffs’ inventory of cases, even their best cases, won’t settle based on anything near that valuation. Setting that aside, the jury’s original award would continue to suggest underlying problems with the trial. A trial with multiple injured plaintiffs almost always creates a negatively charged atmosphere for defendants. A five-plaintiff trial is all the worse. Defendants will see that, the evidentiary and legal rulings, and the verdict itself as providing almost no guidance on how to resolve the litigation.
We suspect that even some plaintiffs’ lawyers are worried about whether this trial helped. The plaintiffs’ bar is sharp and experienced. A number of them likely understand the possibility that this verdict will do more to create a longer and more contentious litigation than to resolve it. Even some of the plaintiffs’ lawyers on this very case, a talented and experienced group, may be voicing the same concern—at least internally. A half-billion dollars. Really?
Perhaps the most important goal of consolidation is to move mass-torts toward a just and efficient resolution for both plaintiffs and defendants. Setting off a bomb that leaves everything in tatters won’t accomplish that, not in a mass-tort world in which both the plaintiffs’ and defendants’ bar are now very experienced in these litigations and know how to value large inventories of cases. There are several ways for courts and litigations to properly value these cases. One key way is trials, ones with reasonable backgrounds, both factually and otherwise, not ones charged with nefarious suggestions involving all sorts of things other than the facts of the case. For now, the Pinnacle hip implant litigation has been cast into an area of uncertainty. And that’s no place from which to resolve a mass tort. Buckle up. This could be a long ride.