DePuy ASR Trial Dates Set for May and July 2013 in MDL

The first trial involving problems with a recalled DePuy ASR hip replacement has been scheduled to begin next year in the federal multidistrict litigation (MDL), which involves thousands of lawsuits filed by individuals throughout the United States. 

In a Case Management Order (PDF) issued on July 26, U.S. District Judge David Katz indicated that the first bellwether trial will commence on May 6, 2013, followed by a second trial scheduled to begin on July 8, 2013.

Such early trial dates, commonly referred to as “bellwether cases”, are common in complex product liability litigation, where a large number of lawsuits have been filed by individuals who allege they have been injured by the same product.

Since similar evidence and testimony is likely to be offered in most of cases, the outcomes of these bellwether trials are often helpful in gauging how juries are likely to respond and may help facilitate a DePuy ASR settlement agreement that applies to other cases.

According to the Order, the Plaintiffs and Defendants will each select four cases by August 8, involving individuals who required revision surgery after receiving a DePuy ASR hip replacement. Following case specific discovery, one primary and one back up case will be selected for each of the two trial dates.

DePuy ASR Recall Issued Amid Higher-Than-Expected Failures

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, according to allegations raised in the complaints.

A DePuy ASR recall was issued in August 2010, after the manufacturer acknowledged that post-marketing data suggested one in 8 implants were failing within five years after surgery, often requiring risky revision surgery to remove and replace the implant.

By the time Johnson & Johnson and their DePuy Orthopaedics subsidiary recalled the ASR, more than 93,000 of the implants had already been sold worldwide.

More than 6,000 people have filed a DePuy ASR hip lawsuit, alleging that the manufacturers knew or should have known that the implant was defective long before the recall was issued.

All complaints filed in the federal district courts throughout the United States have been consolidated before Judge Katz in the U.S. District Court for the Northern District of Ohio as part of an MDL, to avoid duplicative discovery, conflicting rulings from different judges and to serve the convenience of the witnesses, the parties and the courts.

In the event that the lawsuits do not settle or otherwise resolve following bellwether trials and other pre-trial proceedings, cases may be remanded back to the U.S. District Court where they were originally filed for an individual trial date.

Mounting Litigation Over Metal-on-Metal Hip Replacements

In addition to the DePuy ASR litigation, similar lawsuits have been filed over other metal-on-metal hip replacements that have not been recalled from the market, including the DePuy Pinnacle hip, Wright Medical Conserve hip and Biomet M2A-Magnum hip.

Those complaints involve similar allegations and the outcome of the DePuy ASR trial dates will be closely monitored by parties involved in those lawsuits as well.

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.