Appeals Court Revives Whistleblower Claim Against Johnson & Johnson’ DePuy Orthopaedics

First Circuit Reverses District Court Dismissal of Doctors’ Claim

federal whistleblower claim, filed by two British orthopedic surgeons, has been reinstated by the 1st United States Circuit Court of Appeals. The lawsuit sought damages under federal False Claims Act, alleging that DePuy and its parent company, Johnson and Johnson, sold defective hip implant to doctors who then sought reimbursement from the federal government through Medicaid and other programs.

The trial judge had thrown out the lawsuit, concluding that the litigants had failed to show a specific instance of fraud. The Circuit Court disagreed with that ruling, saying that the plaintiffs had shown that it was “statistically certain” that DePuy had engaged in conduct that led third parties to submit false claims to the U.S. government. Because of that “statistical certainty,” the court found that the evidence need not be any more specific.

As part of their argument at trial, plaintiffs’ attorneys demonstrated, through statistical analysis, that more than half of the hip replacement devices manufactured by DePuy did not meet FDA requirements. They contended that such a failure rate (allegedly known by DePuy) made it statistically inevitable that the U.S. government would ultimately reimburse a doctor for a defective hip replacement product.

The plaintiffs had also alleged that DePuy had made intentional misrepresentations to the U.S. Food and Drug Administration, but the Circuit Court did not allow that claim to be reinstated.

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At Shelton Davis, LLC, we offer experienced legal counsel to anyone with a potential claim for injury suffered because of a DePuy Pinnacle hip implant. Contact our office online or call our office at (601) 228-3166. We handle most cases on a contingent fee basis. You won’t pay attorney fees unless we get compensation for your losses.

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