DePuy Pinnacle Hip Bellwether Trial Selection Process Outlined in MDL

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By: Austin Kirk | Published: January 29th, 2013

The parties involved in the federal DePuy Pinnacle hip litigation have agreed on the process for selecting a small group of cases that will be prepared for early trial dates. Known as “bellwether” lawsuits, the trials are designed to help the parties gauge the relative strengths and weaknesses of their cases.

More than 3,000 product liability lawsuits over the DePuy Pinnacle hip replacement have been filed in U.S. District Courts throughout the country, and the litigation has been centralized for pretrial proceedings as part of an MDL, or Multi-District Litigation, before U.S. District Judge Ed Kinkeade in the Northern District of Texas.

All of the complaints involve similar allegations that the metal-on-metal configuration of the DePuy Pinnacle hip replacement system was defectively designed or manufactured, and that inadequate warnings were provided about the risk of early complications or problems, which often develop within a few years of the surgery.

As part of the MDL process, the court has indicated that a small group of cases will be selected as bellwether cases, which will undergo case-specific discovery and be eligible for early trial dates to evaluate how juries are likely to respond to certain evidence and testimony that will be introduced throughout a number of cases in the MDL. The cases will be closely monitored by all lawyers and parties involved in the litigation, as they are designed to help facilitate possible DePuy Pinnacle hip settlement discussions in other cases.

Eight Cases To Be Selected for Initial Pool

According to a Special Master’s Report (PDF) issued on January 16, there will be an initial pool of eight cases selected for discovery and depositions, with each side selecting four cases as possible trial candidates by June 3, 2013.

All of the cases in the initial pool will involve individuals who filed a product liability lawsuit after requiring surgery to revise a DePuy Pinnacle hip replacement. Until August 19, 2013, the parties will be permitted to conduct case-specific discovery in these eight lawsuits, including gathering additional medical records and taking depositions of plaintiffs, treating doctors and sales representatives.

By September 2, 2013, the parties are expected to submit an agreed upon list of four cases from the initial pool, which will be recommended for the first trial dates. If they are unable to reach an agreement, each party will submit their recommendations to the Court, together with a brief explaining why the cases should be selected for the first trial dates.

According to a prior Case Management Order issued by Judge Kinkeade, the first DePuy Pinnacle trial dates may begin by September 2014.

Following selection of the final four bellwether trial cases, if any of those cases are dismissed as a result of a settlement agreement, the Court will replace the case with another lawsuit suggested by the Plaintiffs. However, if any of the selected cases are voluntarily dismissed for any reason other than a settlement, the court will replace the case with one suggested by the Defendants.

Metal-on-Metal Hip Litigation

In addition to lawsuits over the Pinnacle hip, Johnson & Johnson’s DePuy Orthopaedics subsidiary also faces several thousand lawsuits over the DePuy ASR, which is another hip implant that features a similar metal-on-metal design. The DePuy ASR was recalled in August after it was discovered that there was a higher-than-acceptable failure rate within the first five years.

The first DePuy ASR trial is currently underway in California state court, involving a lawsuit filed by Loren and Sheryl Kransky, which was given an expedited trial date because Loren is suffering a terminal cancer. An additional series bellwether trials have been scheduled to begin in May 2013 in the federal court system, where all DePuy ASR lawsuits have been consolidated as part of another MDL in the Northern District of Ohio.

In addition to the DePuy hip lawsuits, the federal courts have consolidated other product liability lawsuits involving problems with metal-on-metal implants, with all Biomet M2A Magnum hip lawsuits consolidated in the Northern District of Indiana, and all Wright Medical Conserve hip lawsuits consolidated in the Northern District of Georgia.

All of the complaints involves similar allegations that metal-on-metal hip replacements are dangerous and defective, increasing the risk of early failure due to metal debris that is released into the body as the parts rub against each other.

Earlier this month, the FDA issued new guidance for doctors involving metal-on-metal hips, confirming that the design carries unique risks that may lead to soft tissue damage and other complications. The agency indicated that the all-metal hips should be considered a device of last resort, and that doctors should carefully monitor patients who received the implants to look for signs and symptoms of problems from metal hip poisoning.

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