Discovery to Move Forward in DePuy ASR Lawsuits Over Non-Revised Hips

The U.S. District Judge presiding over all DePuy ASR lawsuits pending throughout the federal court system has extended the deadline for individuals who have not had their recalled hip removed or replaced to elect to move forward with their claim at this time, and indicates that initial discovery in cases that previously elected to continue with their cases must be submitted by the end of this month.

As part of a DePuy ASR settlement agreement reached in late 2013, which resolved about 8,000 lawsuits filed on behalf of individuals who required revision surgery after receiving the metal-on-metal hip implant, plaintiffs who did not qualify for the settlement were required to elect whether to continue with their case at this time or dismiss the complaint without prejudice, which would allow them to refile the hip lawsuit in the future if they require revision surgery.

Individuals who still have the defective hip replacement in their body, but who do not qualify for the settlement because they have not yet experienced problems resulting in the need for revision surgery, must elect whether to move forward with their case at this time or dismiss the action, which would allow them to refile in the future, so long as the new complaint is filed within one year after they undergo ASR revision surgery or within six months of being told that it is too risky for them to go through the procedure.

In a case management order (PDF) issued on April 1, U.S. District Judge David Katz announced that non-revision plaintiffs who have not yet made an election have until April 30, 2015 to choose to continue with their case. Those individuals will then have 90 days from the election to complete initial discovery. However, plaintiffs who previously elected to continue their case must complete the initial discovery by April 30, submitting Plaintiff Fact Sheets and all required documents, including medical authorizations and damage interrogatories.

While Johnson & Johnson’s DePuy Orthopaedics subsidiary has agreed to pay over $3 billion to resolve several rounds of cases involving individuals who have required revision surgery, the manufacturer continues to maintain that individuals who have not required revision surgery are not entitled to financial compensation, even though they have an artificial hip in their body that has been found to be defective and unreasonably dangerous.

Hip Replacement Settlements

A DePuy ASR recall was issued in August 2010, after the manufacturer acknowledged that a higher-than-expected number of the metal-on-metal hip implants were failing within a few years after surgery.

While original estimates suggested that about one out of every 8 may fail within five years, subsequent data suggests that the DePuy ASR failure rate may be substantially higher the longer the implants remain in place.

The DePuy ASR design features a metal femoral head that rotates within a metal acetabular cup, resulting in the release of metallic debris as the parts rub against each other during normal daily activities. This debris may cause individuals with a DePuy ASR hip to suffer metal blood poisoning, known has hip metallosis, with can lead to the loosening and ultimate failure of the artificial hip.

More than 12,000 DePuy ASR hip cases were filed prior to the original settlement, but it is estimated that 90,000 of the implants were sold world-wide before the design was recalled.

Given the large number of implants still in place throughout the United States, it is expected that DePuy ASR hips will continue to fail over the coming years, which is likely to lead to new claims and future hip settlements being paid by the manufacturer.