$8.3 Million. And Counting.

How much is a bad business decision going to cost you? It depends, of course.

Johnson & Johnson got one answer last week: $8.3 million and counting.

That was the jury award ($338,000 for medical expenses, and $8 million for pain and suffering) from the first of many cases against Johnson & Johnson's DePuy Orthopedics unit for its now-recalled metal-on-metal artificial hip.

The 12-member jury, however, did not award punitive damages, accepting that the company did not act "with fraud or malice". (A complete news article on the decision, by Barry Meier in Friday's New York Times, can be found here.) Meier wrote that

Internal Johnson & Johnson documents that became public during the trial indicated that the company executives were told by surgeons, who were also paid consultants to the design maker, that the design of the A.S.R. [Articular Surface Replacement, the full name of the metal-on-metal hip replacement] was flawed. In addition, some surgeons also urged the device maker to slow sales of the implant or stop them completely....

In the case, evidence was also presented that showed Johnson & Johnson considered redesigning the A.S.R. to reduce its problems, but then abandoned the project because the implant's sales did not justify the costs of the redesign.

Johnson & Johnson did move to recall the device, introduced first in 2003, in 2010 "when data from an orthopedic registry in Britain showed that its failure rate was higher than normal."

In fact, about four in ten patients with an A.S.R. would need a second operation within five years to have the implant replaced. In comparison, traditional artificial hips, made of a combination of metal and plastic, generally have a failure rate of less than 5%.

DePuy has said that it will appeal the damage award.

The second of more than 10,000 cases goes to trial today in Chicago.