Explanted Birmingham Hip Resurfacing Implants to be Preserved Under Court Ordered Protocol

The U.S. District Judge presiding over hundreds of hip implant lawsuits involving problems with the Smith & Nephew Birmingham Hip Resurfacing System has approved the specific protocols for preserving explained devices.

There are currently nearly 400 product liability lawsuits against Smith & Nephew over Birmingham Hip Resurfacing (BHR) failures in federal court system, each raising similar allegations that the metal-on-metal hip resurfacing and replacement designs are defective and prone to fail, often requiring revision surgery to have the implant removed and replaced. However, as hip implant lawyers continue to investigate and file cases for individuals nationwide, it is expected that the size of the litigation may increase rapidly in the coming months.

In May 2017, the U.S. Judicial Panel on Multidistrict Litigation decided to consolidate all cases involving Smith & Nephew Birmingham Hip Resurfacing (BHR) systems, centralizing pretrial proceedings before Judge Catherine C. Blake in the District of Maryland as par of a federal MDL, or multidistrict litigation.

The coordinated litigation is designed to reduce duplicative discovery into common issues in the lawsuits, avoid conflicting pretrial rulings and to serve the convenience of common witnesses, parties and the judicial system.

In a case management order (PDF) issued this week, Judge Blake approved the steps that must be filed for explanted Birmingham Hip Resurfacing implants, outlining how the devices are to be identified, preserved and handled.

The order indicates that the parties are to make “good faith efforts” to preserve any explanted system in their possession, or in the possession of non-party medical practitioners and hospitals. They are also to make the same effort to preserve any blood, fluid, tissue or serum samples.

Judge Blake also ordered that no testing or analysis, whether destructive or non-destructive, is to be done without an agreement by all parties or an order by the court. Destructive testing, which would damage or destroy evidence, is prohibited entirely without the written consent of all parties or an order by the court.

The Smith & Nephew Birmingham hip was one of the first metal-on-metal hip replacement systems on the market, and concerns were raised about its safety even before it was approved. A competitor, Wright Medical, attempted to stop the devices from getting approved, filing a citizen’s petition with the FDA in 2006, asking the agency to reject the application for the BHR, due to concerns over the adequacy of the clinical trials used to obtain premarket approval.

As part of the coordinated MDL proceedings before Judge Blake, it is expected that a small group of representative “bellwether” cases will be be selected, which would be prepared for early trial dates to help the parties gauge the relative strengths and weaknesses of their cases.