Those who have been following along with the developments in the DePuy hip implant cases know that the first trial–of perhaps many–is now underway. The legal battle pits the orthopaedic company (and its parent Johnson & Johnson) against patients who were harmed after a certain type of its metal-on-metal hip implant system was installed in their body. The information that has come out over the course of this first trial is some of the first that provides an inside glimpse into what the company knew about the device risks while marketing it across the country.
The specific legal details surrounding these cases are somewhat complex, because they often implicate general negligence and product liability matters, with varying proof requirements and elements. At the most basic level it is important to know that what a plaintiff must show to recover in one of these cases–where a defective product is involved–is often different than when one is harmed by something else (i.e. a bad driver or a negligent doctor).
However, as in most cases related to medical conduct or medical products, one of the centerpieces is the testimony of experts. Because the jury is made up of a wide swath of society with most (or perhaps all) of its members without a medical background, experts are brought in to explain, in their own opinion, the detailed medical issues involved. Of course, each side will bring their own expert, and the two will essentially say the opposite thing. However, during cross examination it is often possible to bring up weak points regarding the experts’ claims or to suggest biases which might influence their testimony. In this way juries (or a judge) are best positioned to made a judgment about what side is likely correct. It is not foolproof but it is far and away the best system we have to make reasoned decisions about complex matters when parties vehemently disagree.
DePuy Trial Experts
Recently, as discussed in a Bloomberg News story late last week, the defense expert testified in the first DePuy trial. According to the report, the expert (a toxicologist) argued that while cobalt and chromium did shave off the product and enter the plaintiff’s bloodstream, the debris did not cause any damage and was nothing to worry about. Essentially, the expert argued that the metallic particles likely didn’t harm the plaintiff (a 65 year old retired prison guard) and that any adverse health effects were caused by something else.
On cross examination the plaintiff’s line of questioning indicated how the expert may be biased in favor of the company. For example, the company has already paid his firm over $5 million to conduct medical analysis as part of the trial. He has previously been paid by many other large companies who have similarly faced suit alleging harm caused by dangerous products. In the past he was referred to as the “go to guy” for the industry. His previous work involved downplaying the cancerous consequences of substances like asbestos.
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