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Individuals who have previously experienced problems with a DePuy ASR hip replacement, which resulted in the need for revision surgery, must register by January 6 to be part of the settlement program announced in November.
Johnson & Johnson’s DePuy Orthopaedics division currently faces about 12,000 hip replacement lawsuits filed in state and federal courts throughout the United States following the recall of the DePuy ASR XL Acetabular Hip System in 2010.
The metal-on-metal hip replacement system was removed from the market after data suggested that about one out of every eight would fail within five years. However, more recent data has suggested that the DePuy hip failure rate may ultimately be substantially higher, likely ending up in the 35% to 45% range.
All of the complaints involve similar allegations that DePuy designed and sold a defective and unreasonably dangerous hip implant. The metal-on-metal design causes the release of metallic debris into the body as the metal parts rub against each other during normal wear and tear, according to claims presented by individuals who experienced catastrophic failure of their implant.
In November, a DePuy ASR settlement program was announced, which will result in the manufacturer paying at least $2.4 billion to resolve claims, but the total benefits that may be available under the offer may reach as high as $4 billion after accounting for medical expense reimbursements and other costs.
Under terms of the agreement, individuals who underwent hip revision surgery prior to August 31, 2013 due to problems with a DePuy ASR hip may be eligible to pursue compensation through the program that will provide an average of about $250,000 per claim, with additional damages available for “extraordinary” injuries. However, a registration deadline of January 6, 2014 is rapidly approaching for individuals who wish to participate.
ASR Hip Settlement Eligibility
According to a program overview (PDF), potential participants in the settlement must meet the following requirements:
- They must be a U.S. Citizen or legal resident of the United States.
- They had to have either the ASR XL Acetabular Hip System or the ASR Hip Resurfacing System implanted in a hospital in the United States or at a U.S. military hospital.
- They had to have had the ASR in place for at least 180 days.
- They had to undergo revision surgery to remove the ASR hip implant for reasons related to its recall on or before August 31, 2013.
The amount that will be awarded is determined by a number of factors. A base award of $250,000 per claim will be provided, but that may be reduced by factors such as the length of time the implant was in place, whether the individual smoked at the time they underwent revision surgery, whether the same hip had undergone previous replacement surgeries before the ASR hip was implanted, whether they were obese at the time the artificial hip was implanted, their age at the time the hip was implanted, and whether patients who died after revision surgery had a cause of death due to problems unrelated to the ASR hip implants.
For individuals who suffered “extraordinary injuries”, including complications associated with the revision surgery, additional compensation may be obtained from another pool of $475 million.
The settlement program is not mandatory, and each individual will still have the option to decide whether to accept or reject the offer provided under the program. However, Johnson & Johnson has required that at least 94% of eligible claimants to accept the terms for it to proceed.
While the hip replacement settlement is expected to resolve the majority of claims, it will not end the entire DePuy ASR litigation. Individuals who decline the offer and those who have not had to have their DePuy ASR hip replaced prior to August 2013 will still continue to litigate their claims. In addition, individuals who have their hips fail in the future will be able to seek compensation through new lawsuits.
Prior to the settlement agreement being reached, only two DePuy ASR cases made it to trial nationwide, with a California jury awarding $8.3 million in damages earlier this year and a second trial in Illinois state court resulting in a defense verdict weeks later.
Additional bellwether trials were expected to begin early next year in the federal court system and New Jersey state court. However those cases will not go forward in light of this agreement.