Johnson & Johnson (J&J) and its subsidiary, DePuy Orthopedics, recently lost their appeal of the first ASR hip implant trial. The five-week trial concluded in March 2013 when a jury found the companies manufactured a device that was defectively designed and showed gross negligence in their failure to warn patients. The jury awarded the plaintiff $8.3 million.

The companies filed an appeal regarding several evidentiary rulings made during the trial, which included the exclusion of FDA clearance and expert testimony. An appeals court denied all of the challenges and affirmed the $8.3 million in damages.

The ASR is a metal on metal hip implant approved by the FDA in 2005. In 2010, its manufacturers voluntarily recalled the device after an internal study showed one out of every three implants failed within five years. In 2013, the companies ceased manufacturing all metal on metal implants because the friction caused by the devices was shedding toxic metal ions into the bloodstream.

Thousands of metal hip implant lawsuits stacked up against the company, including more than 8,000 consolidated into a multidistrict litigation in Ohio. In May 2014, the companies agreed to pay $2.5 billion to settle the lawsuits.

This comes at a poor time for DePuy and J&J who are currently facing lawsuits over the Pinnacle hip implant, which suffers from similar defects to the ASR.

A Pinnacle hip implant trial in May awarded six plaintiffs $502 million, but a judge recently reduced the damages to $151 million in accordance with Texas law. In addition to reducing damages, the judge denied the defense’s request for a retrial. The companies plan to file an appeal.

The companies have also asked for a postponement of the next trial so an appeals court will have time to hear its appeal. It is unclear whether or not the postponement will be granted, but the September trials are quickly approaching.