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By: Austin Kirk | Published: July 16th, 2013
A claim brought by a New York woman will be the first DePuy ASR hip lawsuit to go to trial in federal court, serving as a “bellwether” case to help those involved in the litigation gauge how juries may respond to certain evidence and testimony that will be offered throughout the litigation.
More than 7,800 complaints brought throughout the federal court system by individuals who have experienced problems with a recalled DePuy ASR hip implant are consolidated as part of an MDL, or Multidistrict Litigation, which is centralized before U.S. District Judge David Katz in the Northern District of Ohio.
A small group of cases have been prepared for early trial dates, known as “bellwether” trials because they are designed to allow parties to evaluate the relative strengths and weaknesses of the cases before thousands of individual trials are scheduled throughout the country.
In an order (PDF) issued July 8, Judge Katz announced that a case brought by Ann McCracken will go before a jury on September 9, in the Carl B. Stokes U.S. Courthouse in Cleveland, Ohio.
McCracken originally filed her complaint (PDF) in March 2011, alleging that she received a DePuy ASR metal-on-metal hip replacement system in August 2009, months before the controversial implant was recalled from the market. Although artificial hips are typically expected to last 15 to 20 years, McCracken indicates that by January 2011, her implant had to be removed.
A DePuy ASR recall in August 2010, after more than 90,000 of the implants were sold worldwide. The Johnson & Johnson subsidiary removed the metal-on-metal implant from the market after post-marketing data suggested that 12% to 13% of ASR implants were failing within five years. However, subsequent estimates have suggested much higher failure rates.
In addition to the DePuy ASR hip lawsuits pending in the federal court system, thousands of cases have been filed in state courts nationwide. While the Prather case will be the first federal trial, several state court cases have already reached a jury.
In the federal MDL, if DePuy ASR settlement agreements are not reached following a series of bellwether trials, thousands of cases could be remanded back to the U.S. District Courts where they were originally filed for individual trial dates throughout the country.