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Combined Trial for Two DePuy Hip Lawsuits to Move Forward in N.J.

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A “bellwether” trial scheduled to begin early next year in New Jersey state court will involve a combined trial of two DePuy hip replacement lawsuits, after the judge presiding over the litigation denied a request by Johnson & Johnson to split the cases and schedule them for separate trial dates.

There are currently more than 10,000 product liability lawsuits filed in state and federal courts throughout the United States involving recalled DePuy ASR hip implants.

At least 650 of those cases are pending in New Jersey state court, where they are consolidated before Judge Brian R. Martinotti in Bergen County as part of an MCL or Multi-County Litigation.

As part of the coordinated proceedings in New Jersey state court, a small group of cases have been prepared for early trial dates, known as “bellwether” cases because they are designed to help the parties gauge how juries may respond to certain evidence and testimony that will likely be similar to what is offered in other cases.

In April 2013, Judge Martinotti scheduled the first bellwether trial in New Jersey to begin on January 13, 2014, involving a combined trial for similar product liability lawsuits filed by Barbara Gullo and Kevin Coughlin and his wife, Kathleen.

In response to a motion filed by Johnson & Johnson and their DePuy Orthopaedics subsidiary asking that the cases be split into separate bellwether trials, Judge Martinotti issued an Order (PDF) on August 13, indicating that the cases will proceed as part of a combined trial that will go before the same jury.

Trial Set to Begin January 2014 in New Jersey

The DePuy ASR is a metal-on-metal hip replacement system that was recalled in August 2010 amid reports that users were experiencing problems within a few years after it was implanted.

The Gullo and Couglin cases raise similar allegations to those brought in all of the other complaints, claiming that DePuy Orthopaedics designed and sold a defective and dangerous medical device, which increased the risk of loosening and failure by releasing microscopic metallic debris as the metal parts rub against each other during normal use.

Attorneys for DePuy and Johnson & Johnson argued that combining the cases as part of one trial would not be fair and could prejudice and confuse the jury. They also argued that the consolidated case would lead to a longer trial. However, Judge Martinotti disagreed.

Although there are some factual differences between Gullo and Coughlin cases, Judge Martinotti indicated that there are a sufficient number of similar legal and factual issues to justify consolidation.

In addition to New Jersey’s strong public policy in support of consolidation and judicial efficiency, Judge Martinotti pointed out that both Plaintiffs’ cases are governed by New York law, each underwent DePuy ASR hip replacement surgery due to degenerative joint disease, each required revision due to pain and elevated metal ion levels, the instructions for use of the implant were the same at the time of each of their surgeries and the plaintiffs’ surgeons interacted with the same sales distributor.

Thousands of DePuy ASR Lawsuits Filed

In addition to the New Jersey state court litigation, DePuy ASR lawsuits are pending elsewhere throughout the United States and at least two cases have already been presented to state court juries.

In March, a California jury awarded $8.3 million in damages in the first DePuy ASR trial in the country, after the plaintiff was given an expedited trial date due to his grave health. However, a subsequent trial in Illinois state court ended in a defense verdict in April, after the jury concluded that the manufacturer was not liable for failing to warn about the risk of problems.

In the federal court system, all lawsuits over DePuy ASR implants filed in U.S. District Courts throughout the country have been centralized for coordinated pretrial proceedings in the Northern District of Ohio, as part of an MDL or Multi-District Litigation.

In the DePuy ASR MDL, a small group of cases are also being prepared for early trial dates, with the first case scheduled to begin on September 9, involving a lawsuit filed by Ann McCracken, who alleges that she received one of the metal-on-metal implants months before it was recalled from the market and required revision surgery less than two years later.

The outcomes of these early trial dates may help the parties reach potential settlement agreements in a large number of cases. Otherwise, Johnson & Johnson and DePuy could face hundreds of individual trial dates in courts throughout the United States over the coming years.

DePuy Hip Recall and Metal-on-Metal Hip Problems

The DePuy ASR hip features a controversial metal-on-metal design, with a metal ball that rotates within a metal acetabular cup. Plaintiffs allege that this results in the release of metal particles, which may cause infection and loosening of the components, often resulting in the need for risky revision surgery.

A DePuy ASR recall was issued in August 2010, after the manufacturer acknowledged that post-marketing data suggested a higher-than-expected failure rate. While initial reports released by the company found a failure rate of 12% to 13%, some outside experts estimated the failure rate at a about 30% over six years.

Similar problems have also been seen with other metal-on-metal hip implants, and a number of product liability lawsuits have also been filed over these similar products, including the Biomet M2A Magnum, the Wright Medical Conserve Cup, and the DePuy Pinnacle hip.

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