Depuy ASR Hip Statute of Limitations May Expire in August for Some

As the two year anniversary of the DePuy ASR hip replacement recall approaches next month, time may be running out for some individuals to file a lawsuit over problems caused by the metal-on-metal hip.

DePuy Orthopaedics, a subsidiary of Johnson & Johnson, announced that they were recalling the DePuy ASR Hip Resurfacing System and XL Acetabular System in August 2010, impacting more than 93,000 devices sold worldwide.

At the time of the recall, the manufacturer acknowledged that post-marketing data suggested that up to 13% of the implants may fail within 5 years. However, more recent estimates have suggested that the DePuy ASR failure rate might be substantially higher.

Over the past two years, more than 6,000 people have filed a DePuy ASR lawsuit, alleging that the manufacturer knew or should have known that the implant was defective long before it was removed from the market.

As a result of the failure to recall the device earlier or provide warnings about the risk of problems, Plaintiffs claim that they have experienced or are at risk of experiencing early failure of their implant, as well as other health problems that may result from the microscopic metal particles released as the metal parts rub against each other.

Potential Statute of Limitations for DePuy ASR Hip Claims

Every product liability claim has a deadline, known as the statute of limitations, which requires that a lawsuit be filed within a certain amount of time after a cause of action arises or the injuries are discovered.

The exact calculation of the statute of limitations period in each DePuy ASR hip lawsuit depends on the circumstances surrounding that claim and the laws of the state where the surgery occurred. About half of the states in the U.S. have a statute of limitations period of only two years, but some states do allow additional time.

While no court has ruled on the DePuy ASR hip replacement statute of limitations period, it is possible that attorneys for Johnson & Johnson and DePuy may attempt to argue that the two year window to file a claim started running on the date of the recall. Therefore, individuals who are subject to a two year statute of limitations may be barred from obtaining a recovery if their lawsuit is not filed before August 26, 2012.

Metal-on-Metal Hip Replacement Problems

The DePuy ASR is a metal-on-metal hip replacement system, which features chromium and cobalt in it’s ball-and-socket design.  As the metal parts rub against each other, microscopic metal particles may be shed into the body, potentially resulting in metallosis, which may cause the device to loosen or fail.

Similar problems have been reported with other metal-on-metal hip replacement systems that have not been recalled, including the DePuy Pinnacle hip, Biomet M2A-Magnum hip and Wright Conserve hip.

In May 2011, the FDA asked device manufacturers to obtain more information about the level at which the metal particles shed by hip replacements becomes dangerous, how much metal they actually shed and what the potential side effects of metallosis are.

On February 28, Britain’s health agency, the Medicines and Healthcare Products Regulatory Agency (MHRA) issued new guidance stating that patients who have received large-head metal hip implants should have blood tests to check for metallosis every year for the rest of their lives.

Last month, an FDA advisory committee recommended that recpients get an  annual blood test to check for metal blood poisoning if the implant was bothering them, and to get an X-ray of the device annually even if ot was not causing a problem.