Defense Verdict Returned in Second DePuy ASR Hip Trial

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By: Austin Kirk | Published: April 17th, 2013

A Chicago jury decided yesterday that Johnson & Johnson’s DePuy Orthopaedics subsidiary should not be held responsible for injuries suffered by an Illinois woman who received a recalled metal-on-metal hip replacement manufactured by the company, which failed only a few years after it was implanted.  

Following a five-week trial in Cook County Circuit Court, a jury returned a defense verdict in the second trial in the country involving problems with the DePuy ASR XL hip replacement.

The case concluded just over a month after a California jury awarded $8.3 million in damages in the first case in the country to reach a jury. However, Johnson & Johnson faces an estimated 11,000 DePuy ASR hip lawsuits filed in courts throughout the country.

DePuy ASR Problems

The Illinois trial involved a product liability lawsuit brought by Carol Strum, a nurse who alleged that the company failed to adequately warn doctors and patients about the risk of failure associated with the DePuy ASR metal hip implant, which has been linked to an increased risk of loosening and metal blood poisoning, which often results in the need for revision surgery to replace the implant.

Strum only had the implant for three years before it failed. The lawsuit claimed that her problems were caused by the release of metal particles into her body as the metal parts rubbed against each other.

Allegations raised at trial were similar to those raised earlier in the year in California state court, as well as in other complaints pending throughout the country. Plaintiffs argue that DePuy manufactured and sold a dangerous and defective implant, failing to warn consumers or the medical community about the risks of problems.

The DePuy ASR was a metal-on-metal hip replacement, featuring a metal femoral head that rotates within a metal acetabular cup. As the metal parts rub against each other, microscopic metallic debris are released into the body, which plaintiffs allege increases the risk of metallosis and failure within a few years.

In August 2010, a DePuy ASR recall was issued after Johnson & Johnson acknowledged that post-marketing data suggested that about one out of every 8 implants were failing within the first five years. However, by the time the hip implant was removed from the market, more than 90,000 of the components had been sold worldwide.

In Strum’s case, defense attorneys argued that she had a reaction to the DePuy ASR hip, and maintained that the device was not defective, despite the recall. The defense team said that Strum’s pain was not alleviated when she was implanted with a different artificial hip, suggesting her problem was one of hypersensitivity.

Bellwether Trials in DePuy ASR Litigation

The Strom trial was closely watched by lawyers involved in the DePuy ASR litigation, which were using the case as a “bellwether” to gauge how juries may respond to certain arguments, witness testimony and evidence likely to be repeated in thousands of trials.

On March 8, a California state court jury awarded $8.3 million in damages to Loren Kransky, after finding that problems with the design of the DePuy ASR hip replacement caused him to suffer permanent injuries after the components loosened. However, the jury declined to award punitive damages over DePuy’s failure to warn about the increased risk of problems, indicating that it did not believe the manufacturer acted with fraud or malice.

In the federal court system, all product liability lawsuits over the DePuy ASR hip implant have been centralized for pretrial proceedings before U.S. District Judge David Katz in the U.S. District Court for the Northern District of Ohio, as part of an MDL or Multi-District Litigation.

A small group of cases are being prepared for early trial dates in the DePuy ASR hip MDL. 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, with a second trial scheduled to begin on July 8. The first trial will involve a case filed by Faye Borney-Madgitz, with the second trial involving a complaint filed by Ann McCracken.

Earlier this year, reports indicated that Johnson & Johnson had offered to pay an average of about $200,000 per case to resolve the litigation, but attorneys involved in the lawsuits rejected the DePuy ASR settlement offers, indicating that the manufacturer was not offering sufficient compensation for injuries caused by the defective hip replacement.

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.

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