Motion Filed to Consolidate DePuy Pinnacle Hip Litigation

A motion has been filed with the U.S. Judicial Panel on Multidistrict Litigation to consolidate and centralize the federal DePuy Pinnacle hip litigation in one court for coordinated pretrial proceedings, either as part of the pending DePuy ASR recall litigation or as a new multidistrict litigation (MDL). 

Johnson & Johnson and their DePuy Orthopaedics subsidiary face a growing number of lawsuits over problems with their metal-on-metal hip replacements.

Most of the pending cases were filed by individuals who have a recalled DePuy ASR hip implant, which was removed from the market last year. However, in recent months, a growing number of people have filed a DePuy Pinnacle lawsuit over problems linked to the older hip replacement system, which allegedly contains similar design defects that raise the risk of early failure for the implant.

A DePuy ASR hip recall was issued in August 2010, after post-marketing reports confirmed that a higher-than-expected number of patients were experiencing failure of their hip replacement within a few years of surgery.

Since the recall, several hundred people have filed a DePuy ASR lawsuit after experiencing problems with the metal-on-metal hip replacement system. All of the federal lawsuits involving ASR hip products were consolidated in December 2010 as part of a multidistrict litigation in the U.S. District Court for the Northern District of Ohio, before U.S. District Judge David A. Katz. However, product liability lawsuits involving other hip implants made by DePuy and Johnson & Johnson were excluded from this MDL.

Due to alleged design defects with the ASR hip, microscopic metal particles may be shed into the body as the parts of the metal-on-metal hip replacement rub against each other. The manufacturer has acknowledged that about one out of every eight may fail within five years, but more recent estimates suggest that the DePuy ASR failure rate may be nearly 50%.

The DePuy Pinnacle system was introduced several years before the ASR hip, and it contains a similar metal-on-metal design when a metal liner is used instead of a polyethylene liner. Some critics have argued that a DePuy Pinnacle recall should also be issued, as both devices appear to be prone to an unacceptable risk of problems. When DePuy Orthopaedics obtained FDA approval for the ASR implant in 2005, they claimed that the design was a “substantial equivalent” to the DePuy Pinnacle, which was introduced in 2001.

On March 25, 2011, a motion to consolidate the Pinnacle hip litigation was filed was filed by one of the first plaintiffs to file a lawsuit over the DePuy Pinnacle hip. Plaintiff Catherine Falvey, whose case is currently pending in the U.S. District Court for the Central District of California, argues that an increasing number of claims similar to hers are likely to be filed in courts throughout the United States involving DePuy Pinnacle hip problems.

While approximately 93,000 DePuy ASR hip systems were sold before it was removed from the market, more than 150,000 DePuy Pinnacle hips were manufactured according to Falvey’s motion. In addition, since the August 2010 ASR recall, more than 1,300 people have filed an adverse event report with the FDA involving problems with a DePuy Pinnacle hip.

Falvey argues that all federal lawsuits over Pinnacle hip replacements should also be consolidated as part of a multidistrict litigation, or MDL, as they are all predicated on common issues of fact. Such consolidation helps reduce duplicative discovery in different cases, eliminates inconsistent rulings from different judges and serves the convenience of the parties, lawyers and the courts. Flavey has requested that the Panel either designate a new court for handling of the litigation over DePuy Pinnacle hips or consolidate the DePuy ASR lawsuits and DePuy Pinnacle lawsuits in the same coordinated action.

The MDL Panel is expected to hear oral arguments on the motion at the next scheduled hearing, which will be held on May 16, 2011, at the Gene Synder United States Courthouse in Louisville, Kentucky.