By: Austin Kirk | Published: March 12th, 2013
After a California jury awarded $8.3 million in damages in the first DePuy ASR hip lawsuit late last week, Johnson & Johnson is back in court this week, as the second trial out of more than 10,000 lawsuits filed over the recalled hip replacement system goes before another jury in Illinois state court.
Trial began this week in Cook County Circuit Court in Chicago, involving a product liability lawsuit filed by Carol Strum, a 54-year old nurse who alleges that Johnson & Johnson and its DePuy Orthopaedics subsidiary failed to adequately warn doctors and patients about problems with the DePuy ASR hip, which has been linked to an increased risk of failure within a few years.
Strum indicates that she had the DePuy ASR hip for only three years before it failed. According to allegations raised in the case, the metal-on-metal ball and socket design of the ASR implant causes metal particles to be shed into the tissue around the implant, causing tissue death and other complications, and elevating the level of metal ions in Strum’s blood. As a result of the problems, Strum had to undergo hip revision surgery and claims that she has been left with substantial permanent injuries.
Similar Evidence and Testimony Involving DePuy ASR Hip Problems
The allegations and evidence that will be presented at trial are expected to be similar to claims raised in thousands of other DePuy ASR hip replacement lawsuits currently pending in courts throughout the country.
Trial for the first case in the country began last month in California state court, involving a lawsuit filed by Loren Kransky, who also alleged that he suffered permanent injuries after the components of his DePuy ASR hip loosened.
Following five weeks of testimony, a Los Angelos jury awarded $8.3 million in compensatory damages late last week, but declined to award additional punitive damages, which would have been designed to punish Johnson & Johnson and DePuy for withholding information about the potential risks.
Johnson & Johnson issued a DePuy ASR metal hip recall in August 2010, after data indicated that the implants had a failure rate of 12%-13% after five years. However, some independent experts say that the failure rate could be 30% or higher in the first six years.
Bellwether Trials May Influence DePuy ASR Settlement Agreements
Most of the DePuy ASR litigation is currently pending in the federal court system, where complaints filed in U.S. District Courts throughout the country have been consolidated as part of an MDL, or multi-district litigation, before U.S. District Judge David Katz in the Northern District of Ohio.
As of March 5, at least 7,235 lawsuits over the DePuy ASR hip were consolidated in the federal MDL, according to the latest update (PDF) by the U.S. Judicial Panel on Multidistrict Litigation.
In addition to various state court cases that are going to trial, a small group of cases in the DePuy ASR MDL are being prepared for early trial dates in federal court, known as “bellwether” cases.
According to a case management order issued in July 2012, the first federal DePuy ASR trial date is scheduled to begin on May 6, 2013, involving a complaint filed by Faye Borney-Madgitz, with a second trial scheduled to begin on July 8, involving a complaint filed by Ann McCracken.
These early trial dates are designed to help the parties gauge how juries are likely to respond to certain evidence and testimony that will be repeated throughout the litigation. The outcomes may help the parties reach DePuy ASR settlement agreements in other cases.
The outcomes of these bellwether trials may also influence settlement negotiations in lawsuits pending over other metal-on-metal hip replacement systems, which have also been linked to a higher-than-expected failure rate as microscopic metallic debris is released into the body as the metal parts rub against each other.
In addition to lawsuits over the DePuy ASR implant, individuals have filed lawsuits over other metal-on-metal implants, including the Biomet M2A Magnum, the Wright Medical Conserve Cup, and the DePuy Pinnacle hip.