Guest blogger and Wright Conserve hip replacement attorney Don McKenna of the Hare Wynn Newell & Newton Law Firm offers his thoughts and observations on the closing arguments in the first Wright Conserve Metal-on-Metal Hip MDL bellwether trial:
November 19, 2015, ATLANTA, GA—Plaintiff and defense [inlinetweet prefix=”” tweeter=”attorneygroup” suffix=””]lawyers delivered their closing arguments in the first bellwether trial in the Wright Conserve metal-on-metal hip multi-district litigation.[/inlinetweet] The litigation is centered in the Northern District of Georgia before the Honorable William S. Duffy and is styled In re: Wright Medical Technology, Inc., Conserve Hip Implant Products Liability Litigation, case number 1:12-md-02329. See UPDATE below.
A bellwether trial, in which facts representative of a large number of other plaintiff’s claims are submitted to a jury, is intended to test the legal issues and give the parties an idea of whether juries will award damages in a case and, if so, how much. The trial of plaintiff Robyn Christiansen against Wright Medical Technology, Inc. began on November 9, 2015 and lasted less than two weeks – a very short bellwether trial compared to prior metal-on-metal hip trials, which have lasted four to five weeks in some cases.
Consistent with the pace of the trial itself, the Court truncated the closing arguments significantly by limiting the parties to forty-five minutes per side. This limitation prevented Plaintiff from reviewing the substance of the voluminous evidence, or even having a chance to explain the complicated multi-question verdict form. Despite these limitations, the parties still made their main points.
In closing arguments, lawyers for Plaintiff argued that the evidence showed that Wright represented to Plaintiff’s physician and doctors around the Country that the Wright Conserve Metal-on-Metal hip:
- Was the latest and greatest design in hips;
- Was designed for an active lifestyle;
- Would last a lifetime;
- Had been extensively tested the product; and
- Solved the metal ion problem and deemed it to be safe.
Wright Conserve Trial Update and Commentary
All of this was represented to Plaintiff’s surgeon and others, despite evidence showing that Wright’s internal information suggested that the Conserve device emitted metal ions and caused metallosis over time. (Metallosis is a condition of metal ions coming off of the hip replacement from friction between the metal surfaces and going into the surrounding tissue. The emission of ions in the surrounding tissue can cause the tissue and bone to die.)
Plaintiff’s counsel argued that Wright’s testing further revealed that the Conserve metal-on-metal hip emitted ten times more metal ions than the alternative hip design of metal-on-ceramic. Counsel stated that Wright knew that metal ions cause damage to the surrounding tissue and bone. Despite this knowledge, counsel continued, Wright wanted to use the metal-on-metal design, because it wanted to beat other manufacturers in placing its device for sale, with the goal of obtaining a larger share of the $1.37 billion artificial hip market.
Plaintiff’s counsel did not ask the jury for a specific amount of money to compensate Plaintiff for pain and suffering, but instead explained how the revision surgery required by the defective product caused her serious physical pain and set backs in her lifestyle. Counsel argued that the evidence revealed Wright’s conduct warranted punitive damages to deter Wright and others from putting medical products on the market that they know to be defective, but left the amount necessary for such deterrence to the jury.
The defense argued that Wright was transparent and forthcoming with Plaintiff’s physician and others around the Country. The defense argued that it was Plaintiff’s physician’s surgical technique that caused the problems for Mrs. Christiansen, despite the fact that Wright used Mrs. Christiansen’s doctor to teach other doctors the technique to implant this type of hip.
Wright’s counsel argued that Wright’s testing showed that the Conserve hip emitted lower amounts of metal ions than other metal-on-metal hips and was a significant improvement in the technology.
Defense counsel argued that Plaintiff’s Wright hip cup came loose because it was not properly implanted into the bone, but was instead only connected for six and a half years by fibrous tissue. This looseness is the reason, the defense argued, for the metal ions being emitted into surrounding tissue.
Wright’s counsel pointed out that Plaintiff, though having to deal with the recovery period after revision surgery, was doing well now. She is back to a lifestyle that includes skiing, biking, hiking and working out. He argued that none of the evidence indicated any reprehensible conduct by Wright that would warrant punitive damages and asked the jury to return a verdict for the defendant.
The trial itself was somewhat of a factual “Twilight Zone,” in that the parties were not permitted to present any evidence of product defects that occurred after the date Plaintiff’s hip was implanted in 2006. The jury was not allowed to know that metal-on-metal hips have been effectively withdrawn from the market because surgeons will no longer use them, and because the FDA has mandated that manufacturers now prove they are safe and effective and no manufacturer has done so.
The jury was also not allowed to know that hundreds of other Wright Conserve metal-on-metal hip patients claim to have experienced the very same metallosis injuries as Plaintiff and have require serious and expensive revision surgery. Because of this limitation, Wright’s attorneys were able to attack Plaintiff’s implanting surgeon without the jury knowing that it was not just this one surgeon that has a patient with a problem, but hundreds of patients and surgeons have experienced the same issue.
UPDATE: HarrisMartin publishing reports that the jury awarded the plaintiff $11 million on her claims in a verdict reached on November 24, 2015.
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