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The U.S. District Judge presiding over the consolidated pretrial proceedings for all federal Smith & Nephew Birmingham hip lawsuits has cleared the way for the litigation to move forward, after rejecting an attempted by the manufacturer to have more than 200 cases dismissed.
Since May 2017, all product liability lawsuits involving problems with the Smith & Nephew Birmingham Hip Resurfacing (BHR) system have been centralized in the U.S. District Court for the District of Maryland, before Judge Catherine C. Blake, as part of an MDL, or multidistrict litigation.
Several hundred complaints are currently pending against Smith & Nephew, each raising similar allegations that the metal-on-metal hip replacement design is defective and prone to fail, often requiring revision surgery to have them removed and replaced. However, as hip replacement lawyers continue to investigate and file cases for individuals nationwide, it is ultimately expected that the size of the litigation may increase rapidly in the coming months.
Smith & Nephew sought to have the litigation dismissed, arguing that the claims are either preempted or insufficiently pled. In a memorandum (PDF) issued on March 26, Judge Blake explained found that all of plaintiffs claims survive the motion, other than two strict liability counts.
“The plaintiffs argue that Smith & Nephew is liable under their remaining state law theories – negligence, and negligence per se, failure to warn, negligent misrepresentation, breach of express warranty, and manufacturing defect – because it failed to report adverse incidents and properly train surgeons, disseminated false information, and manufactured the BHR with defects,” Judge Blake states in the memorandum. “They further argue that these theories are not expressly preempted because each rests on a violation of one of several federal requirements: Smith & Nephew’s obligation to report adverse incidents, disseminate only truthful information about the device, implement a surgeon training program, and to manufacture the device exactly as approved. Because all of the plaintiffs’ claims can, at least facially, be satisfied by Smith & Nephew’s alleged failure to comply with duties already required by the FDA, the defendant’s motion to dismiss these claims will be denied.”
The parties met yesterday for a status conference, to discuss the MDL filings, coordination and management of the cases. They also held discussions about a discovery plan, which is expected to result in a small group of “bellwether” cases being prepared for early trial dates, to help gauge how juries may respond to certain evidence and testimony that will be repeated throughout the litigation.
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.