Attorney Justin Presnal is a shareholder in the Complex Litigation Department at Simmons Hanly Conroy, based in College Station, Texas. Justin’s cases involve dangerous drugs, medical devices, and other complex litigation matters.
Justin has practiced law since 1993, working on a wide array of cases. He has represented individuals and businesses in trial and appellate courts throughout the country, often involving complicated jurisdictional and choice of law issues.
“The Complex Litigation Department at Simmons Hanly Conroy is on the cutting edge of high stakes litigation, constantly looking at novel legal theories to help the clients we represent,” Justin said. “No case is too complicated or difficult for us to handle, and we have the experience and resources needed to creatively and strategically win hard cases.”
Careful Analysis & Compelling Writing
Justin works on the analytical and strategic components of the firm’s cases. Along with other attorneys in the firm, and frequently with co-counsel from other firms, he analyzes potential cases and develops case strategies. He takes the lead on preparing the papers that are filed with trial and appellate courts and has a passion for writing and the law.
Justin had an early introduction to working on complex and unusual cases, working on cases that were international in scope and often involved unusual legal questions — such as the Foreign Sovereign Immunities Act, the Warsaw Convention, federal and state application of the forum non conveniens doctrine, and federal preemption in pharmaceutical, medical device, automobile, and other product liability cases. He once told one of his early mentors, Mike Maloney of Houston, “Mike, every one of your cases is like a law school exam question.”
That early experience was instrumental in Justin learning to find ways to prosecute complicated cases using creative but legally sound strategies, and the importance of not just winning in the trial court but making sure you can preserve that win on appeal.
Justin was fortunate to work alongside some of the finest legal writers in Texas early in his career. That experience inspired him to develop a writing style that is plain and direct, rather than the “legalese” found in so much legal writing. Most issues are decided based on the papers provided to the court, often without having an oral hearing on motions, which puts an emphasis on the quality and persuasiveness of those papers.
Changes in court procedures following the COVID-19 pandemic have caused in-person hearings to become even less common, a trend that will likely continue in the future. As a result, hard-hitting and straightforward written submissions will be even more important. With many courts turning to technology to conduct remote hearings by teleconference and videoconference, Justin has focused on developing strategies for being a compelling advocate in those settings as well.
Fighting the Opioid Epidemic
Justin currently represents the interests of Simmons Hanly Conroy’s many governmental clients in the massive and far-reaching litigation involving the pharmaceutical industry’s improper promotion and distribution of prescription opioid medications. He is a member of the Law and Briefing Committee in MDL 2804, In re: National Prescription Opiate Litigation, Northern District of Ohio; he was part of the trial team representing the firm’s clients in the coordinated New York state court litigation, Index No. 400000/2017, In re: Opioid Litigation, Supreme Court of the State of New York, County of Suffolk.
Opening statements for the New York opioid trial began in June 2021, marking the start of the first opioid case in the United States to be heard before a jury and, ultimately, the longest jury trial in the history of the New York State Supreme Court. The trial included over 800 exhibits and 9,000 filings.
Leading up to the trial’s opening arguments, several original defendants, including Johnson & Johnson and the pharmacies CVS, Walgreens, Rite-Aid and Wal-Mart, were severed from the trial. Additional defendants settled for significant amounts during the seven-month trial, which concluded with a plaintiffs’ verdict against opioid manufacturer Teva Pharmaceuticals and its subsidiaries, and the distributor Anda Manufacturing in December 2021.
Key results from the trial totaled more than $1.7 billion in settlements, including:
- The three largest U.S. drug distributors — McKesson Corporation, Cardinal Health Inc. and AmerisourceBergen Drug Corporation — settled claims with New York State for a combined $1.18 billion.
- Endo Pharmaceuticals and its subsidiaries agreed to a settlement with New York State, and Suffolk and Nassau Counties, totaling $50 million.
- Johnson & Johnson settled with the state of New York for $263 million, and as part of their agreement, the company agreed to stop making opioids.
- Former opioid manufacturer Allergan settled on the eve of closing arguments for $200 million.
These settlements provided recoveries for Suffolk and Nassau counties, the State of New York and numerous other New York counties the firm represents.
In addition to the national opioid MDL pending in the Northern District of Ohio (MDL 2804), Justin works with the Plaintiffs’ Steering Committee in MDL 2996, In re: McKinsey & Co., Inc. National Prescription Opiate Litigation, Northern District of California, which seeks to hold global consulting giant McKinsey & Co. responsible for its role in helping opioid manufacturers like Purdue Pharma develop strategies to aggressively promote the use of dangerous prescription opioid medications, which contributed to the opioid epidemic that has ravaged so many communities and affected so many lives.
Protecting Rights of Patients Injured by Hip Implants
Justin was appointed to the Law and Motions Committee in MDL 2244, In re: DePuy Orthopaedics, Inc., Pinnacle Hip Implant Products Liability Litigation, in the United States District Court for the Northern District of Texas. He was part of the trial team that obtained jury verdicts in favor of the plaintiffs in that MDL resulting from injuries caused by the “Pinnacle” metal-on-metal hip implants sold by Johnson & Johnson and its subsidiary, DePuy Orthopaedics:
- $1 billion verdict: Rosa Metzler, et al. v. DePuy Orthopaedics, Inc., et al., No. 12-2066; Michael Weiser v. DePuy Orthopaedics, Inc., et al., No. 13-3631; Judith Rodriguez v. DePuy Orthopaedics, Inc., et al., No. 13-3938; Linda Standerfer v. DePuy Orthopaedics, Inc., et al., No. 14-1730; Kathleen Davis, et al. v. DePuy Orthopaedics, Inc., et al., No. 15-1767; Marvin Andrews, et al. v. DePuy Orthopaedics, Inc., et al., No. 15-3484. (Six cases consolidated for trial in the U.S. District Court for the Northern District of Texas, Dallas Division)
- $502 million verdict: Aoki v. DePuy Orthopedics, et al., No. 3:13-cv-01071-K; Christopher v. DePuy Orthopedics, et al., No. 3:14-cv-01994-K; Greer v. DePuy Orthopedics, et al., No. 3:12-cv-01672-K; Klusmann v. DePuy Orthopedics, et al., No. 3:11-cv-02800-K; and Peterson v. DePuy Orthopedics, et al., No. 3:11-cv-01941-K. (Five cases consolidated for trial in the U.S. District Court for the Northern District of Texas, Dallas Division)
- $247 million verdict: Alicea v. DePuy Orthopaedics, Inc., et al., No. 3:15-cv-03489-K; Barzel v. DePuy Orthopaedics, Inc., et al., No. 3:16-cv-01245-K; Kirschner v. DePuy Orthopaedics, Inc., et al., No. 3:16-cv-01526-K; Miura v. DePuy Orthopaedics, Inc., et al., No. 3:13-cv-04119-K; Stevens v. DePuy Orthopaedics, Inc., et al., No. 3:14-cv-01776-K; Stevens v. DePuy Orthopaedics, Inc., et al., No. 3:14-cv-02341-K (Six cases consolidated for trial in the U.S. District Court for the Northern District of Texas, Dallas Division)
In addition to these trials, Justin was a part of the team that handled the appeal from the Aoki trial, In re: DePuy Orthopaedic, Incorporated, Pinnacle Hip Implant Product Liability Litigation, No. 16-11051, published at 888 F.3d 753 (5th Cir. 2018). That decision from the conservative Fifth Circuit decided several important issues that were significant not only for other cases in the Pinnacle MDL, but will also impact product liability cases involving medical devices and other products in other courts:
- Preemption: The court reaffirmed that design defect claims involving medical devices cleared for sale by the FDA using its “510k” procedure are not preempted by the Food Drug and Cosmetic Act.
- Safer Alternative Design: The court rejected Johnson & Johnson’s argument that the plaintiffs should have been required to present evidence of a safer metal-on-metal hip implant design, and agreed with plaintiffs that Johnson & Johnson’s cross-linked polyethylene implant was an appropriate safer alternative design because both devices had the same utility.
- “Comment k” to the Restatement (Second) of Torts, § 402A: The court also rejected Johnson & Johnson’s argument that this provision categorically bars plaintiffs’ claims, an argument that Johnson & Johnson and other medical device manufacturers have asserted in numerous other courts.
- Adequacy of Device Warnings: The court rejected Johnson & Johnson’s argument that the “instructions for use” included with its implants adequately warned of the risk of soft tissue damage, concluding that those instructions were not sufficiently specific.
- Personal Jurisdiction: The court reaffirmed the Fifth Circuit’s adherence to the “stream of commerce” basis for exercising personal jurisdiction over companies that sell dangerous products. The court also found that parent company Johnson & Johnson’s involvement in the development and marketing of the Pinnacle hip implants made it subject to the court’s jurisdiction.
- Liability of Parent Corporation: The court also agreed that Johnson & Johnson could be liable for product liability claims as a “non-manufacturer seller” under Texas law because it participated in the design of the Pinnacle metal-on-metal hip implant and it was aware of the dangers associated with it. The court also found that the evidence was sufficient to show that Johnson & Johnson could be liable under the theory of “negligent undertaking” because of its role in the marketing of the Pinnacle metal-on-metal implant.
Justin was also appointed by the Court to the Plaintiffs’ Executive Committee in MDL 2391, In re: Biomet M2A Magnum Hip Implant Products Liability Litigation, in the United States District Court for the Northern District of Indiana. In addition to working on behalf of all the plaintiffs in the MDL as a member of the PEC, he represented numerous individual plaintiffs, most of whom were not eligible for the global settlement that Biomet announced in 2014.
Along with the other PEC members in MDL 2391, Justin helped develop a strategy for getting cases in the MDL remanded to their home courts so they could be tried, and helped develop a “trial package” for lawyers representing other Biomet plaintiffs to use in those trials. This led to a wave of additional settlements on behalf of Biomet plaintiffs all over the country, and two trials in federal court in Iowa and Missouri where the plaintiff’s prevailed on their product liability claims.
Legal Background
Justin graduated with honors from Texas A&M University in 1990, and graduated with honors from Baylor University School of Law in 1993. He is admitted to the State Bar of Texas, the United States Supreme Court, the federal Fifth Circuit Court of Appeals, and the United States District Courts for the Southern, Northern, and Eastern Districts of Texas, the District of Colorado, and the Eastern District of Wisconsin. He is board-certified in Civil Appellate Law by the Texas Board of Legal Specialization, is a member of the American Association for Justice, and is a Life Fellow of the Texas Bar Foundation.
Justin was acknowledged by Best Lawyers as one of the “Best Lawyers in Texas” in 2016, 2020-22, and as one of the “Best Lawyers in America” from 2016 to 2022 in the areas of Plaintiffs’ Personal Injury Litigation and Appellate Practice. He was recognized as a Texas “Super Lawyer – Rising Star” in 2005.
