One Jury Giveth, and Another Taketh

Just over a month ago, I commented on how much Johnson & Johnson's poor business decision was going to cost them -- more than $8 million, and that was just the first suit related to its metal-on-metal DePuy artificial hip's high failure rate (full post, here).

I wondered at that time whether J&J would regret going to trial (rather than settling out of court). After all, the decision was the first of literally thousands of suits filed against the company.

From the company's perspective, the courtroom news hadn't been all bad -- the Los Angeles jury awarded no punitive damages, accepting the company's statement that it had not acted with "fraud or malice". Still, it seemed like a high-stakes gamble. After all, the jury had awarded the plaintiff $8.3 million, the $0.3 million for medical expenses, and the $8 million for pain and suffering, which is chump change only in the world of Wall Street hedge funds.

J&J's decision makes a little more sense today, with the results from the second trial (this one in Chicago), in which the jury rejected all claims that DePuy had "inappropriately" marketed its artificial hip.

In Barry Meier's story in today's New York Times, he noted, "It was not immediately clear why the two juries returned such differing verdicts."

I won't commit on the jury decision(s). What I can comment on is the ethics of the decisions that J&J's DePuy unit made.

As today's story (and earlier ones) made clear:

Internal DePuy documents introduced at the trials indicated that company officials knew that the design of the A.S.R. was flawed long before they recalled the device and even considered redesigning the implant. They never shared that information with doctors and patients, those documents show.  

Any way you try to spin it, that's wrong.