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Thousands of hip replacements patients who received a DePuy ASR hip implant, which was recalled in 2010, may begin receiving payments in the next few months, under the terms of a settlement agreement reached to resolve about 12,000 lawsuits.
Johnson & Johnson’s DePuy Orthopaedics subsidiary reached an agreement in November 2013, agreeing to pay at least $2.4 billion to resolve claims, but reports have suggested that hte total benefits that may be available could reach as high as $4 billion after accounting for medical expense reimbursements and other costs.
According to a joint status report (PDF) issued on June 27, attorneys for DePuy and individuals who have brought claims indicate that 98.3% of those eligible to participate in the settlement have enrolled in the program, which will fully resolve their pending claims.
“Award determinations are now being issued on a rolling basis,” the status report states. “DePuy funded the first batch of awards over a week early and is in the process of reviewing the report on the second group.”
The report states that the first payments should begin in the coming month.
In addition to resolving injury claims filed by individuals, DePuy is also attempting to resolve medical reimbursement lawsuits filed by states who say that the medical device manufacturer defrauded their Medicare and Medicaid programs by selling a defective product.
Last week, the Oregon Department of Justice announced that it had reached a $4 million settlement with DePuy over allegations that the companying knew the ASR hip replacement systems were defective when it sold them. It is the first such settlement reached with a state over the ASR recall.
DePuy ASR Recall
A DePuy ASR metal-on-metal hip replacement system recall was announced in August 2010, after data suggested that about one out of every eight would fail within five years. However, more recent data has suggested that the DePuy hip failure rate may ultimately be substantially higher, likely ending up in the 35% to 45% range.
All of the complaints involve similar allegations that DePuy designed and sold a defective and unreasonably dangerous hip implant. The metal-on-metal design causes the release of metallic debris into the body as the metal parts rub against each other during normal wear and tear, according to claims presented by individuals who experienced catastrophic failure of their implant.
While the DePuy ASR settlement program is expected to resolve the vast majority of claims, it will not end the entire litigation. The handful of individuals who declined the offer and those who have not had to have their DePuy ASR hip replaced prior to August 2013 will still continue to litigate their claims. In addition, individuals who have their hips fail in the future will be able to seek compensation through new lawsuits.
Prior to the settlement agreement being reached, only two DePuy ASR cases made it to trial nationwide, with a California jury awarding $8.3 million in damages earlier this year and a second trial in Illinois state court resulting in a defense verdict weeks later.
Additional bellwether trials were expected to begin this year in the federal court system and New Jersey state court. However those cases will not go forward in light of this agreement.