DePuy ASR Class Action Lawsuit Filed Over Hip Recall

Exactly one month after DePuy Orthopedics announced that they were recalling about 93,000 ASR metal-on-metal hip implants due to the high risk that they may fail, a DePuy ASR hip recall class action lawsuit has been filed on behalf of all individuals who received the defective device.

The complaint was filed on September 24 in the U.S. District Court for the Southern District of Ohio, by plaintiffs Katheryn and Jonathan Bendel. The lawsuit seeks class action status to represent any individuals in the United States who received a DePuy ASR hip replacement, as well as their spouse.

The DePuy ASR class action suit is not specifically aimed at those who have experienced problems, but instead seeks to force DePuy to pay for necessary tests and medical monitoring that will be required for anyone who has one of the defective hip implants for the rest of their lives to check whether the hip replacement has failed.

Product liability lawyers investigating DePuy ASR lawsuits are providing free consultations and claim evaluations to help individuals who may be impacted by the recall understand their legal rights and determine whether their interests will be better served by pursuing an individual product liability lawsuits as opposed to only participating in a class action.

A DePuy ASR hip recall was issued on August 24, after DePuy Orthopaedics, a subsidiary of Johnson & Johnson, acknowledged that their metal-on-metal artificial hip system may be prone to fail within a few years after it is implanted. Data suggests that the DePuy ASR hip replacement failure rate is about 12% to 13% within five years, potentially resulting in pain and the need for additional hip surgery to replace the artificial hip. However, it is expected that the rate of problems may increase the longer the devices remain in place.

According to the class action suit, Katheryn Bendel received an ASR XL Acetabular System hip implant in August 2009. By March 2010, she indicates that she began to experience hip pain and stiffness. The pain developed into popping and grinding sensations, made her incapable of walking, standing or sitting for long periods of time and eventually caused her to take a medical leave of absence in July and to apply for disability. Bendel learned earlier this month that the hip implant she had received was recalled by DePuy, and that the risk of problems is particularly high for smaller implants, such as those installed in women.

As a result of potential complications from the DePuy ASR metal hip replacement, Bendel will now have to go through radiographic evaluation, blood testing, an MRI and will probably need another hip surgery to remove and replace the ASR implant, followed by physical therapy. The battery of tests before the surgery are suggested for anyone who has been implanted with a recalled ASR metal hip.

The lawsuit argues that class action status is necessary to ensure a uniform program remedy for everyone who has one of the ASR hip implants affected by the recall, regardless of their financial or health care situations.

The DePuy class action suit also warns that device manufacturer may be trying to “deceive” hip implant recipients, leading them to believe that the company has agreed to reimburse them for medical monitoring and revision surgery to replace defective implants if they will provide the company access to their medical records. “[I]n fact DePuy has only stated that it will use the information obtained through the authorizations to decide whether to pay the ‘reasonable’ medical expenses,” the lawsuit notes.

While a handful of individual product liability lawsuits over the DePuy hip implant were filed prior to the recall, the number of claims has been increasing dramatically as individuals learn about the problems with DePuy ASR hip implants.

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.

Earlier this month, 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 later this year. 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.