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Bellwether Trial for DePuy ASR Lawsuit in MDL Postponed Again

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The first federal trial date involving the recalled DePuy ASR hip implant has been delayed once again, after the judge presiding over the litigation recognized that the parties are experiencing difficulty scheduling witness testimony following a prior two week postponement granted earlier this month in the test case.

There are currently more than 8,200 DePuy ASR lawsuits consolidated in the federal court system before U.S. District Judge David A. Katz in the Northern District of Ohio, where the cases are centralized as part of an MDL or multidistrict litigation.

As part of the coordinated pretrial proceedings in the litigation, a small number of cases have been prepared for early trial dates, known as “bellwether” cases because they are designed to help the parties gauge how juries are likely to respond to certain evidence and testimony that will be offered throughout the litigation.

The first DePuy ASR bellwether trial was originally scheduled to begin on September 9, involving a lawsuit filed by Fay Dorney-Madgitz and her husband Harvey Madgitz. However, just two months before the trial was set to begin, a complaint filed by Ann McCracken was substituted as the case to be tried for the first first bellwether.

Earlier this month, just days before trial was set to begin, Judge Katz delayed the start of the case until September 24, indicating that additional time was needed for discovery and consideration of other legal matters, necessitated by the delayed designation of the case for trial.

Last week, Judge Katz issued another Order (PDF) canceling the current trial date set to begin this week, indicating that trial will be reset to commence within the next ninety (90) days.

“After conferring at length with the trial attorneys handling this matter, the Court has determined that because of the initial continuance of this trial as aforesaid, the scheduling of export witnesses by both parties has become an extremely difficult task,” wrote Judge Katz in the order issued September 20. “Additionally, issues remain with regard to scheduling of additional depositions and pretrial discovery which are necessary for the thorough preparation and presentation of this bellwether case.”

DePuy ASR Hip Recall Litigation

McCracken originally filed her complaint in March 2011, alleging that she received a DePuy ASR metal-on-metal hip replacement system in August 2009, about a year before the controversial implant was pulled 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.

In August 2010, a Depuy ASR hip recall was issued after the manufacturer acknowledged that a higher-than-expected number of the implants were failing within a few years. By the time the DePuy ASR was removed from the market, more than 90,000 of the implants had already been sold worldwide and a good portion of the individuals who received the device in the United States are now pursuing product liability lawsuits.

While the McCracken case will be the first federal trial, at least two state court cases have already gone before juries. Earlier this year, a California jury awarded $8.3 million in damages and a second trial held in Illinois state court resulted in a defense verdict for the manufacturer.

The preparation and outcomes of these early trial dates are designed to help facilitate further negotiations between the parties to resolve the litigation. However, if a DePuy ASR settlement is not reached following a series of bellwether trials in the MDL, 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.

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