Motion Filed to Centralize DePuy ASR Recall Lawsuits in MDL

A motion has been filed with the U.S. Judicial Panel on Multidistrict Litigation to consolidate and centralize all federal DePuy ASR hip recall lawsuits in one court for coordinated pretrial proceedings. 

The motion was filed on September 3 by a woman who filed a lawsuit in the U.S. District Court for the Northern District of California and, if approved, could eventually impact thousands of cases that are likely to be filed throughout the country on behalf of individuals injured by a recalled DePuy ASR hip replacement implant.

A DePuy ASR hip recall was issued last month after DePuy Orthopaedics, a subsidiary of Johnson & Johnson, acknowledged that their metal-on-metal artificial hip system may be prone to fail within a few years after it is implanted. Approximately 93,000 DePuy ASR hips have been sold, and new data suggests that about one out of every 8 may fail within five years, potentially resulting in pain and the need for additional hip surgery to replace the artificial hip.

While a handful of lawsuits over the hip implant were filed prior to the recall, the litigation is expected to increase dramatically as individuals learn about the problems with DePuy ASR hip implants. Although the recall does not mean that all implants must be replaced, doctors are encouraging all patients to return for an examination to determine whether the hip replacement is functioning as it is supposed to. In addition, patients will likely require additional treatment to monitor for problems in the future.

According to the Motion for Transfer filed earlier this month, the plaintiff has requested that the DePuy ASR recall litigation be centralized in the U.S. District Court for the District of New Jersey as part of an MDL. The motion references at least five lawsuits currently pending in different five states, including at least one DePuy ASR class action lawsuit. However, that number is expected to climb dramatically in the coming months as attorneys investigate and review additional claims.

All of the lawsuits over DePuy ASR hip implants involve similar allegations of design defect, which caused the plaintiffs to incur additional medical expenses, suffer pain and, in some cases, require additional surgery to revise or replace the hip implant. The complaints allege that DePuy failed to adequately test the metal-on-metal hip system and failed to immediately issue a recall when it became apparent that that the DePuy ASR was linked to a high failure rate.

The DePuy ASR is a metal-on-metal hip replacement system developed in 2005. Health care professionals have increasingly been warning about problems with metal-on-metal hip implants, which can shed metal particles into the body. The particles can damage soft tissue, cause inflammatory reactions and lead to bone loss. The DePuy ASR hip failures appear to be linked to a defective design of the acetabular cup, which is shallower than acetabular cups made by other companies, making it prone to problems.

According to data from the National Joint Registry of England and Wales, the ASR Hip Resurfacing System fails in about 12% of recipients within five years and the ASR XL Acetabular System fails in about 13% of recipients, with the failure rate even higher among women and those with heads smaller than 50mm.

If a multidistrict litigation is formed for the DePuy ASR recall lawsuits, all of the cases will be transferred to one judge to oversee during pretrial proceedings. This will allow the parties to avoid duplicative discovery, inconsistent rulings from different judges and serve the convenience of the witnesses, the parties and the court. During the pretrial litigation, the MDL judge will coordinate discovery and likely select a group of cases for early trials, known as bellwether cases, which may help the parties reach an agreement to settle the DePuy ASR suits.

The motion calls for the cases to be consolidated before U.S. District Judge Susan D. Wigenton in New Jersey, which is the corporate headquarters for Johnson & Johnson, the parent company of DePuy. Any responses from the defendants or other plaintiffs who may oppose the motion are due before September 24, 2010. It is expected that the MDL Panel will hear arguments on the motion in November.