DePuy Opposes MDL Consolidation of Hip Implant Lawsuits in N.J.

In response to a motion filed last month with the U.S. Judicial Panel on Multidistrict Litigation to consolidate and centralize all DePuy ASR hip implant lawsuits for pretrial proceedings before one judge in the U.S. District Court for the District of New Jersey, DePuy Orthopedics filed a response brief last week opposing the proposed selection of the Judge Susan D. Wigenton to preside over the cases.

On September 3, a request was filed to have all lawsuits over recalled DePuy ASR hip implants filed in different federal district courts throughout the United States transferred to Judge Wigenton in New Jersey for coordinated handling as part of an MDL, or multidistrict litigation. In a response filed September 27, the artificial hip maker indicates that it does not oppose consolidation of the cases to facilitate a potential DePuy ASR settlement, but does not believe the litigation should be transferred to Judge Wigenton.

A growing number of hip implant lawsuits have been filed following a DePuy ASR recall issued in August for approximately 93,000 ASR Hip Resurfacing Systems and ASR XL Acetabular Systems. The metal-on-metal hip implant was recalled after data suggested one out of every 8 people implanted with the hip may experience problems from the DePuy ASR within five years, potentially resulting in pain and the need for additional hip surgery.

While a handful of DePuy ASR lawsuits were filed prior to the recall, the litigation is expected to increase dramatically as individuals learn about the recall and the risk of complications with the DePuy metal hip replacement systems.

All of the DePuy ASR hip implant lawsuits involve similar allegations of design defects, which caused 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 hip implant and failed to immediately issue a recall when it became apparent that users were experiencing a higher-than-expected failure rate.

In their response to the MDL Panel, DePuy Orthopaedics, a subsidiary of Johnson & Johnson, opposed the selection of Judge Wigenton because she is already overseeing the Zimmer Durom Cup hip implant litigation, which was transferred to her court in June. The Zimmer hip replacement lawsuits involve similar allegations that individuals experienced problems with the Durom Cup hip implant, a different device sold by a competing manufacturer. DePuy argues that it would be inappropriate to have Judge Wigenton preside over such similar litigation involving different hip implants, and could cause confusion and unintended prejudice to all parties.

In their response, DePuy suggests that the ASR hip litigation should be transferred to either the Northern District of Indiana at South Bend or the Northern District of Ohio at Toledo; both of which are near DePuy’s Warsaw, Indiana, headquarters.

Additional briefs have been filed by other plaintiffs in response to the original motion, offering different venues that would be appropriate for the litigation, including the Central District of California and the Northern District of Illinois, which

In a brief filed September 24, plaintiffs Tabetha Long, Paul Long and Christine Alspaugh argue that the litigation should be centralized in the Northern District of Illinois, where at least three lawsuits have already been filed. The plaintiffs argue that Illinois is centrally located in the United States, and suggest that the size of the Chicago metropolitan area will provide conveniences for the case that other venues do not.

In another brief filed September 27, plaintiff David Bowen suggested that the litigation be centralized in the Central District of California, where Bowen’s case was filed. This is where the designers and developers of the DePuy ASR hip systems are located, which would provide easy access to records, according to the brief. In addition, a number of DePuy ASR lawsuits have been filed in California state court, and the MDL judge would likely try to coordinate the federal cases with the state litigation.

The MDL Panel is expected to hear oral arguments over the DePuy ASR products liability litigation on November 18, when the panel is next scheduled to meet at Duke Law School in Durham, North Carolina. The Panel will determine whether consolidation of the DePuy ASR hip implant litigation is appropriate and consider a variety of different factors in determining where the cases will be transferred, including where relevant documents and witnesses are located, where cases are pending, whether the location is centrally located, the number of other civil cases or MDL cases assigned to each court and the preferences expressed by the parties.

If an MDL is formed, as DePuy ASR hip implant lawyers file cases in federal district courts throughout the United States, they will be transferred to the assigned judge for pretrial proceedings. This will help reduce duplicative discovery among thousands of similar cases, avoid conflicting rulings from judges in different districts