Discovery in DePuy Pinnacle Hip MDL Moving Forward, as Lawsuits Mount

Detailed ground rules for the production of documents in the federal DePuy Pinnacle hip replacement MDL have been issued, providing for the exchange of information that will help the parties discover potentially admissible evidence. At the same time, the number of lawsuits filed by individuals who have experienced problems with the metal-on-metal hip implant continues to increase at a fast rate. 

In May 2011, the U.S. Judicial Panel on Multidistrict Litigation centralized all federal lawsuits involving DePuy Pinnacle hip replacements, ordering that pretrial proceedings will be handled before Judge Ed Kinkeade in the U.S. District Court for the Northern District of Texas.

At the time the DePuy Pinnacle MDL was formed, about 57 complaints were pending in various courts throughout the country. Just under one year later, more than 1,600 cases are pending before Judge Kinkeade, according to a Master Case List (PDF) issued by the Court on May 1, 2012, with more than 50 of those lawsuits filed during the last week of April 2012.

In a Case Management Order (PDF) issued May 7, Judge Kinkeade laid out extensive and detailed rules for the document discovery process in the MDL, designed to expedite the process while ensuring that company business secrets are not compromised. This early phase of the litigation typically involves the exchange of millions of pages of physical and electronic records.

Although no time-frame for the first trials has been established in the DePuy Pinnacle MDL, it is common practice in complex product liability litigation of this nature for a small group of cases, known as bellwethers, to be selected for early trial dates after document production has begun.

Once the common discovery has been largely completed on issues that apply to all cases, the court may allow case-specific discovery to move forward in the bellwether cases and set a series of test trials in the MDL. Such early trial dates are often useful in helping the parties gauge how juries are likely to respond to evidence that may be introduced in many of the cases.

In addition to lawsuits over the Pinnacle hip implants, Johnson & Johnson and their DePuy Orthopaedics subsidiary also face more than 6,000 similar complaints filed by individuals who have experienced problems from the recalled DePuy ASR hip replacement.

The ASR litigation was centralized as part of an MDL in December 2010, before Judge David A. Katz in the U.S. District Court for the Northern District of Ohio. According to prior reports, the first DePuy ASR trial dates are not expected to begin in the federal court system until March or April 2013, but state court trials could as early as December 2011.

Similar issues will be presented throughout the DePuy Pinnacle and DePuy ASR litigation, as they both involve metal-on-metal designs, where plaintiffs allege that the implants carry an increased risk of failure as microscopic metal particles are shed into the body from the metal parts rubbing against each other.

In May 2011, the FDA asked all manufacturers of metal-on-metal hip systems to obtain more information about the level at which the metal particles become dangerous, how much metal they actually shed and what the potential side effects are.

In June, the FDA will host an independent panel of experts to review the safety concerns with metal-on-metal hip replacement and resurfacing systems, and make recommendations about any regulatory actions that should be taken to protect consumers from the risks associated with the microscopic shavings of cobalt and chromium that may be released into the body.

Litigation is also pending involving different metal-on-metal hip systems, such as the Wright Medical Conserve Plus and the BioMet M2A-Magnum.