The U.S. Judicial Panel on Multidistrict Litigation has decided that all DePuy ASR hip recall lawsuits filed in various federal district courts throughout the United States will be consolidated for pretrial litigation in the U.S. District Court for the Northern District of Ohio.
In an order issued late last week, the panel indicated that at least seven different lawsuits over recalled DePuy ASR hip replacement systems currently pending in six different states will be transferred to U.S. District Judge David A. Katz. In addition, as DePuy ASR recall lawyers continue to file new federal cases on behalf of individuals who received one of the metal-on-metal hip replacements, they will be transferred to Judge Katz’s court for handling as part of an MDL, or multidistrict litigation.
It is expected that several thousand DePuy hip lawsuits will ultimately be filed as a result of the recall issued in August 2010 by DePuy Orthopaedics, a subsidiary of Johnson & Johnson.
At the time of the DePuy hip recall, approximately 93,000 of the devices had been sold. Conservative estimates suggest that about 12% to 13% may fail within five years, but some experts suggest that the rate of hip revision surgery involving the implant will ultimately be substantially higher.
All of the complaints involve similar allegations that DePuy and Johnson & Johnson failed to adequately research their metal-on-metal hip replacement system and failed to immediately issue a recall after it became apparent that users were experiencing a higher-than-expected rate of problems with DePuy ASR hip implants.
Each of the cases initially being transferred into the MDL come from a different federal court district, including two from different districts in Alabama, and one from California, Kentucky, Illinois, Mississippi and Utah. An eighth case, from the District of Maryland, was excluded because the plaintiff does not have a DePuy ASR-series implant. Two other cases may be excluded later by Judge Katz if it is discovered the plaintiffs do not have ASR implants.
The MDL panel said that the two cases were vague about the types of implants involved, but decided to allow Judge Katz to make the ruling on whether they should be removed from the MDL after further discovery. In placing the cases in Ohio, the court rejected the plaintiffs’ suggestions of consolidation in Texas and Alabama and chose a federal court which attorneys for DePuy had suggested.
Consolidation of the DePuy hip recall litigation before one judge as part of an MDL is designed to reduce duplicative discovery, avoid contradictory rulings from different judges and to serve the convenience of the court, witnesses and parties. While the pretrial management of the cases in an MDL is often managed similar to how a DePuy ASR class action lawsuit would be handled, each claim will still remain an individual lawsuit.
If a DePuy hip recall settlement agreement is not reached following pretrial proceedings and any bellwether jury trials, each of the consolidated cases would be remanded back to the jurisdiction where they were originally filed for trial.
The DePuy ASR is a metal-on-metal hip replacement system developed in 2005. Health care professionals have increasingly been warning about problems with metal-on-metal hip implants, which can shed metal particles into the body. The particles can damage soft tissue, cause inflammatory reactions and lead to bone loss. The DePuy ASR hip failures appear to be linked to a defective design of the acetabular cup, which is shallower than acetabular cups made by other companies, making it prone to problems.