Why Maglio Christopher & Toale, P. A. is at the Dallas Pinnacle Hip Trial
The attorneys at Maglio Christopher & Toale, P.A. have spent the past few weeks in the Dallas courtroom during the first Pinnacle bellwether trial. Even though we are not trying this case, we believe being there in person is important to our client’s cases. We are one of the few metal on metal hip replacement firms in the nation committed to studying J&J’s Pinnacle trial strategy by observing the trial in person. Maglio Christopher & Toale, P.A. attorney Ilyas Sayeg is in Dallas this week providing an update on the trial.
Graphic Video Shown of Revision Surgery
On Monday, the Plaintiff’s revising surgeon, Dr. Henrik Malchau, came on the witness stand. Dr. Malchau works at Massachusetts General Hospital and is a teaching surgeon at Harvard Medical. The jury viewed a very graphic video of the revision surgery performed on the Plaintiff by Dr. Malchau. Par for such revision surgeries, the video showed dramatic footage of dead, metal-stained tissue in an obviously damaged hip joint. [callout1]The video showed dramatic footage of dead, metal-stained tissue in an obviously damaged hip joint.[/callout1]What’s more, metal reaction caused an excessive fluid build-up in the hip. Unknown to Dr. Malchau, the hip joint was under great pressure at the time he made his incisions. The video captured a very graphic sequence in which pus-like liquid shot across the room as Dr. Malchau made his incisions during the revision surgery.
Doctor Shoots Holes in DePuy’s Theory
On Tuesday, Mark Lanier, one of the attorneys representing Plaintiff Kathy Herlihy-Paoli, started the day questioning Dr. Malchau. Much of the testimony centered around the angle at which Mrs. Paoli’s Pinnacle Cups were implanted.
As background for those reading this update, a typical strategy used by hip manufacturers is to blame the surgical technique of the implanting surgeon. One aspect of the surgical technique often criticized by manufacturers is the angle at which surgeons implant the acetabular cup, or shell, of a hip implant. The theory is that an incorrect angle will increase the chance that the edge of the cup will make contact with the metal femoral stem, referred to as “edge loading.” Edge loading can cause metal wear to be released, since hips are not designed to have these component touch each other.
[callout1]Dr. Malchau’s testimony supported the contention that it must be something with the product and not the implanting surgeon’s surgical technique that caused the Plaintiff’s injuries.[/callout1]
However, Dr. Malchau’s testimony shot holes in this theory. His testimony explained that implantation angles which surgeons actually strive for and those angles which manufacturers advocate are not necessarily the same. Further, he testified that not only does he ignore the manufacturers’ suggestions, relying instead on peer-reviewed literature and his own training, he teaches his surgeons at Harvard to disregard manufacturers’ suggestions, as well. He further explained that “optimal” implantation angles, as suggested by the manufacturers, are typically not achieved, anyway. He stated that there was so-called “misplacement” in 50% of hip replacement procedures at Harvard Medical Center and 79% “misplacement” at other facilities. He stated that these percentages are consistent regardless whether the implants were metal-on-metal (MoM) or metal-on-plastic (MoP). Despite these so-called “misplacements” which are shared across both platforms, it is the MoM hips, such as the Pinnacle MoM system, which are failing, not MoP hips. Accordingly, Dr. Malchau’s testimony supported the contention that it must be something with the product and not the implanting surgeon’s surgical technique that caused the Plaintiff’s injuries.
Medical Innovation or a New Problem?
Once DePuy’s attorneys began their cross-examination of Dr. Malchau, things became testy. Dr. Malchau was a difficult witness for DePuy’s attorney to control. Quite often, the attorney and witness argued with and interrupted each other. On more than one occasion, Dr. Malchau directed difficult questions to DePuy’s attorney, which resulted in DePuy’s attorney seeking assistance from the Judge to keep the questions flowing to the witness and not the other way around.
[callout1]“The metal metal hips have been a disaster … A decade of failed innovation!”[/callout1]
One strategy put forth by DePuy in their questioning of Dr. Malchau was the idea of the importance of medical innovation. The theory behind this strategy is that the manufacturer should not be punished for attempts to innovate and that innovation innately comes with risk. As an example, the DePuy attorney brought up the fact that at one point, the current generation of MoP hips were an innovation. Indeed, Dr. Malchau, early on, had written of the need to innovate MoP to the current generation in order to save 800,000 people from risks the previous generation of MoP hips exposed them to. Turning the tables on the defense attorney, Dr. Malchau excitedly exclaimed, regarding MoM hips: “We have not saved 800,000 patients … we have created a new problem!” Not done with his passionate testimony, Dr. Malchau’s parting shots to the jury as he stood up were “The metal metal hips have been a disaster … A decade of failed innovation!”
Testimony from Herlihy-Paoli’s Own Surgeon
After Dr. Malchau’s live testimony, the entire second half of the day consisted of video testimony of the implanting surgeon. As expected, this testimony was geared toward convincing the jury that Dr. David Almacher implanted the Plaintiff’s Pinnacle cups (she had both sides implanted) at too steep of an angle. Dr. Almacher testified that he no longer implants patients with MoM hips. In particular, he abandoned MoM after a particularly jarring revision surgery which he claimed was “career changing” and after a colleague also abandoned MoM hips.
As an interesting side note: Dr. Malchau claims if you have higher cobalt and lower chromium levels, that is a signal for corrosion. Alternatively, a lower cobalt and higher chromium levels signal a wear-related problem.
-Ilyas Sayeg, Attorney at Maglio Christopher & Toale, P.A.