The last day of trial consisted of closing arguments from both sides, and instructions on the applicable law.<\/p>\n
Brian Panish began with Plaintiff\u2019s closing argument. \u00a0He began by thanking the court for running everything so smoothly and efficiently. \u00a0He then thanked the jury for their time and commitment. \u00a0Mr. Panish quoted Abraham Lincoln saying the greatest act of citizenship one can engage in is sitting on a jury, that together the individuals become the conscience of the community.<\/p>\n
Mr. Panish reiterated that companies like DePuy make a profit by providing pain relief to patients, and in this case through orthopedic hip implants. \u00a0But that with that profit, manufacturers are responsible, or strictly liable, when they put out a defective product and that product causes harm. He continued by pointing out that the Defendants rather than be held accountable, tried to switch the focus of the case to Mr. Kransky\u2019s medical condition, and failed to explain away any of the incriminating emails, statements, and evidence of their own wrongdoing.<\/p>\n
As to DePuy\u2019s overarching goal as a company to profit, Mr. Panish noted that Randy Kilburn himself described the company by saying \u201c[w]e are a competitive company, and hips and knees are a competitive market. \u00a0We wanted to be a ruthless competitor.\u201d<\/strong> \u00a0Mr. \u00a0Panish explained that while a company needs to do business for profit, there was never any talk of patient safety, that once DePuy noticed problems with the ASR and its early failure rates no one stopped to think about the patient. \u00a0Instead, the employees only considered what was best for the company.<\/p>\n Most of Mr. Panish\u2019s closing argument on behalf of Plaintiff Bill Kransky consisted of summarizing the causes of action at play in this case and reasoning with the jury that Plaintiff has prevailed on each and every one. \u00a0He explained that DePuy is strictly liable for creating a defective product, and also for a failure to warn. \u00a0He also explained how DePuy was negligent in their actions with respect to the ASR.<\/p>\n Mr. Panish took the jury through the liability phase of the closing argument, highlighting how defective the ASR was. \u00a0He next took them through the causation elements, reasoning how as a result of the defective design of the ASR, Mr. Kransky (and numerous others) were injured. \u00a0He reasoned that the ASR caused injuries to Mr. Kransky. \u00a0At one point, describing DePuy\u2019s refusal to test the ASR or hire a toxicologist Mr. Panish exclaimed \u201cDid they test about it? Did they get a toxicologist? No. \u00a0They just wanted to play Russian roulette and take the risk. \u00a0Because they\u2019re getting money. \u00a0Who\u2019s taking the risk? \u00a0The patient. \u00a0Not Mr. Kilburn. \u00a0Not Mr. Graham Isaac. \u00a0The patients. \u00a0And they gambled.\u201d<\/p>\n Mr. Panish also commented on the Defendants\u2019 proffered experts, highlighting the fact that one such expert is considered the \u201cgo-to-guy\u201d in the defense industry, the same expert who in a PG&E case regarding bad groundwater, did everything he could to help the industry despite numerous injuries to individuals. \u00a0That very expert, Dr. Paustenbach, was paid $5 million to testify in the Kransky case.<\/strong><\/p>\n Regarding DePuy\u2019s failure to warn, Mr. Panish reiterated that a great deal of internal data existed, showing the ASR was having problems. \u00a0DePuy never warned others that internal testing was showing massive wear, nor the fact that they tested the ASR at only one angle. \u00a0DePuy instead created a confidential redesign project called ALPHA once the ASR began to have problems. \u00a0The project was ultimately discarded as unprofitable.<\/p>\n Mr. Kransky\u2019s own implanting surgeon, Dr. Wendt, testified that had he known these dangers and defective design of the ASR, he would not have used the device. That failure to warn by DePuy caused Mr. Kransky\u2019s injuries.<\/p>\n As to negligence, DePuy\u2019s own employee testified that the performance with respect to design failure modes and effects analyses was inadequate. \u00a0They were negligent. \u00a0Mr. Panish explained that the standard for DePuy was to roll out a metal-on-metal device that was at least as good or better than others on the market. \u00a0The ASR was neither. \u00a0Mr. Panish reasoned with the jury that when a company like DePuy has these problems, it should stop and go fix the design. \u00a0The fact that DePuy never did so was negligent. \u00a0The fact that DePuy encountered numerous red flags with respect to the ASR, but never acted on any of them, constitutes negligence.<\/p>\n Ultimately, Mr. Panish asked on behalf of Mr. Kransky, for economic damages (medical expenses) and non-economic damages for pain and suffering. \u00a0Mr. Kransky\u2019s medical expenses totaled $338,136.12. \u00a0As to Mr. Kransky\u2019s non-economics, Mr. Panish described the unrelenting pain he endured, unable to do anything for himself including take a shower or dress, falling in the middle of the street,and the loss of his independence generally. \u00a0Mr. Panish asked the jury to award $5 million to Mr. Kransky\u2019s for his pain and suffering.<\/p>\n Mr. Panish then discussed a very important element in this case, punitive damages. \u00a0Punitive damages, or exemplary damages, are intended to punish for certain behavior and set an example. \u00a0The fact that DePuy acted with conscious and intentional disregard of the dangers of the ASR would call for a punitive damages award. \u00a0Mr. Kilburn himself admitted that if a company ignores numerous red flags, as was the case with the ASR, then the company is acting in conscious disregard for the safety of others.<\/p>\n Mr. Panish discussed the fact that not once throughout the trial did someone from the DePuy camp apologize for what happened with the ASR. \u00a0Mr. Ekdahl, the worldwide president, refused to show up for the trial. \u00a0In reasoning with the jury, Mr. Panish commented that the punitives should be something that catches the attention of these people, that DePuy needs a sound solid message sent to them. \u00a0He also brought up the fact that even when DePuy finally determined the ASR to be defective and knew it was failing, rather than stop selling, the company \u201crationalized,\u201d meaning they made a business decision to sell off the remaining implants. \u00a0DePuy continued selling the defective ASR to be placed in numerous patients\u2019 body, all while knowing that it was dangerous.<\/p>\n On the issue of numbers, Mr. Panish reasoned with the jury to choose a number that Mr. Ekdahl would notice, one that would make him take a second look and think about his shareholders, his stock options, that something needs to be done. A number that would deter DePuy and warn others against similar acts. \u00a0The company is valued at 3.575 billion. \u00a0This means that just one percent of the company is $36 million dollars. \u00a0Mr. Panish then explained that one percent would not get anyone\u2019s attention and that DePuy sold off an extra $24 million in the defective ASR product earlier. \u00a0Only 2% of the company is $72 million. \u00a0Mr. Panish said maybe DePuy would not do it a second time if they were to owe this much. \u00a0But only 5% of the company amounts to $179 millions. \u00a0A number that high would likely register with DePuy, or possibly 10% at $357 million. \u00a0Ultimately, Mr. Panish told the jury he believed that between 2 and 5 percent would be the proper amount for punitive damages against DePuy.<\/p>\n <\/p>\n Next, Mr. Zellers gave the closing argument for Defendants. \u00a0He thanked the jury and court for their time. \u00a0He began by \u00a0telling the jury that until the time of the recall, late 2010, the reported complaints to DePuy were \u201cvery low.\u201d<\/p>\n Mr. Zellers claimed that DePuy is not strictly liable in the first cause of action because the ASR\u2019s design was not defective. He also raised the defense that Mr. Kransky\u2019s revision was not caused by the ASR, but by infection. \u00a0Mr. Zellers again raised the defense that Mr. Kransky\u2019s ASR was implanted at a bad angle and subluxation occurred.<\/p>\n Mr. Zellers argued that the hip did not worsen Mr. Kransky\u2019s overall medical condition and health. \u00a0He argued that DePuy had actually performed extensive testing and development of the \u00a0ASR. \u00a0For these reasons, he argued that DePuy was neither strictly liable with \u00a0respect to design and warnings, nor to negligence as a result of the company\u2019s behavior.<\/p>\n The jury will now begin deliberations.<\/strong><\/p>\n","protected":false},"excerpt":{"rendered":" The last day of trial consisted of closing arguments from both sides, and instructions on the applicable law. Brian Panish began with Plaintiff\u2019s closing argument. \u00a0He began by thanking the court for running everything so smoothly and efficiently. \u00a0He then thanked the jury for their time and commitment. \u00a0Mr. Panish quoted Abraham Lincoln saying the … Continue reading “Kransky v. DePuy Trial \u2013 Day Twenty-Two 2\/28\/13 – last day of trial”<\/span><\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[19],"tags":[],"class_list":["post-1642","post","type-post","status-publish","format-standard","hentry","category-depuy-trial"],"_links":{"self":[{"href":"https:\/\/www.sandiegopersonalinjuryattorney.pro\/law\/wp-json\/wp\/v2\/posts\/1642","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.sandiegopersonalinjuryattorney.pro\/law\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.sandiegopersonalinjuryattorney.pro\/law\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.sandiegopersonalinjuryattorney.pro\/law\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/www.sandiegopersonalinjuryattorney.pro\/law\/wp-json\/wp\/v2\/comments?post=1642"}],"version-history":[{"count":0,"href":"https:\/\/www.sandiegopersonalinjuryattorney.pro\/law\/wp-json\/wp\/v2\/posts\/1642\/revisions"}],"wp:attachment":[{"href":"https:\/\/www.sandiegopersonalinjuryattorney.pro\/law\/wp-json\/wp\/v2\/media?parent=1642"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.sandiegopersonalinjuryattorney.pro\/law\/wp-json\/wp\/v2\/categories?post=1642"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.sandiegopersonalinjuryattorney.pro\/law\/wp-json\/wp\/v2\/tags?post=1642"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}