Class Action for DePuy ASR Recall Alleges Patients Being Misled About Costs

Another class action lawsuit over the DePuy ASR recall has been filed, alleging that DePuy Orthopaedics, a subsidiary of Johnson & Johnson, has attempted to deceive patients who received their defective hip implant into believing the company has agreed to reimburse them. 

The DePuy class action was filed on September 30 in the U.S. District Court for the Northern District of Ohio by Timothy and Elaine Callahan, seeking to represent all recipients of DePuy ASR XL Acetabular Systems. It is at least the second class action for recalled DePuy ASR metal hip replacements filed against the implant maker.

In August, DePuy recalled the ASR XL Acetabular Systems, saying that the metal-on-metal hip implant had a 13% failure rate. They also recalled the ASR Hip Resurfacing System, which had a 12% failure rate. The DePuy ASR hip recall affected 93,000 implants.

Following the recall, DePuy has made several statements indicating that they intend to reimburse patients for certain out-of-pocket medical expenses, asking patients to sign medical releases providing the company complete access to their confidential medical records.

The DePuy class action indicates that the company is misleading people into believing that by releasing access to their medical records and providing DePuy with any removed hip implants that they will be fairly compensated. However, DePuy has only said that it will consider reimbursement for limited costs that the company unilaterally considers reasonable. Patients could receive no compensation after turning over access to their medical records and signing away important legal rights, which might make it harder for them to obtain the financial compensation they deserve through later legal action.

Another DePuy ASR recall class action claim was filed on September 24 by Katheryn Bendel, seeking to force the company to pay for a uniform program to compensate for medical monitoring for all hip replacement patients who received one of the defective metal implants, regardless of their financial or health care situations. The lawsuit has also called for an order preventing DePuy from contacting plaintiffs through their physician.

In addition to the class actions, a growing number of DePuy ASR injury lawsuits have been filed by individuals throughout the United States who have experienced problems with a DePuy ASR implant, many of which have required revision surgery to replace the artificial hip.

All of the lawsuits over DePuy ASR hip implants involve similar allegations of design defect, which caused the plaintiffs to incur additional medical expenses, suffer pain and, in some cases, require additional surgery to revise or replace the hip implant. The complaints allege that DePuy failed to adequately test the metal-on-metal hip system and failed to immediately issue a recall when it became apparent that that the DePuy ASR was linked to a high failure rate.

In September, a motion was filed with the U.S. Judicial Panel on Multidistrict Litigation to consolidate and centralize the DePuy ASR recall litigation. It is expected that the panel will hear arguments on the motion in November.

If an MDL is formed, all federal cases filed in different districts throughout the United States will be transferred to one judge for coordinated handling during pretrial litigation, in a manner similar to how a DePuy ASR class action suit would be managed. However, unlike a class action, if a DePuy ASR settlement agreement is not reached during pretrial proceedings, each of the individual lawsuits would be returned back to the district where they were originally filed for trial.