Johnson & Johnson (NYSE:JNJ) subsidiary DePuy Orthopaedics must produce compliance reports on its metal-on-metal Pinnacle hip implant, ruled the federal judge overseeing the multi-district litigation in Texas last week.
More than 900 cases have been rolled into the MDL in the U.S. District Court for Northern Texas under Judge Ed Kinkeade, accusing DePuy Orthopaedics of negligence, fraudulent misrepresentation and failure to properly design, manufacture, and market the Pinnacle system.
Last week Kinkeade ordered the Warsaw, Ind.-based medical device company to produce "monitor reports" from a court-appointed overseer of DePuy’s compliance with a deferred prosecution agreement with the New Jersey U.S. district attorney, according to court documents.
DePuy had argued that the reports were irrelevant to the Pinnacle lawsuits and not "focused on DePuy’s conduct with respect to the Pinnacle System," according to the documents. But Kinkeade disagreed, ruling that the overseers reports "expressly address issues related to the sale and marketing of hip and knee reconstruction and replacement products which includes the Pinnacle system. The monitor reports are relevant to the marketing and promotional practices related to the Pinnacle system," according to the documents.
"The monitor reports describe the relationships between the defendants and physicians who use or promote DePuy-brand products. The reports detail how DePuy consultants market DePuy products through speaking engagements, resident training courses, and sponsorship of continuing medical education programs at conferences. This information is relevant and could lead to the discovery of admissible evidence on the claims that DePuy failed to correctly warn physicians of Pinnacle system dangers, negligently recommended the product, and supplied false information to physicians," Kinkeade wrote. "Defendants have failed to specifically articulate how production of the monitor reports would be overly burdensome or create an undue hardship."
But the judge denied the plaintiffs’ bid to have supporting documents related to the monitor reports included in the order.
"While the monitor reports themselves are discoverable, at this time, the [plaintiff’s] motion to compel production of underlying documents and information related to or included in the monitor reports is denied without prejudice. The [plaintiff] may re-urge its motion after reviewing the monitor reports, and the defendants arguments regarding burdensomeness and hardship will receive additional analysis by the court, if necessary, based on the specific documents or information being sought," he wrote in the May 15 order.
Kinkeade also ordered that the monitor reports be subject to the confidentiality rules set up by the court earlier in the case.