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Lawyers involved in the federal DePuy ASR hip replacement litigation appeared in court yesterday to confirm details of a settlement agreement that will resolve about 8,000 lawsuits for a payment of at least $2.5 billion. However, under terms of the agreement, the hip maker may end up paying closer to $4 billion to resolve the cases.
Information about the hip replacement settlement for DePuy ASR patients was presented yesterday in the U.S. District Court for the Northern District of Ohio before Judge David A. Katz, who is presiding over more than two-thirds of all product liability lawsuits filed nationwide over the recalled hip implant.
The cases stem from a DePuy ASR hip recall issued in August 2010, which impacted more than 90,000 implants sold world-wide. The hip system was removed from the market after data suggested that about one out of every eight would fail within five years. However, more recent data has suggested that the DePuy hip failure rate may ultimately be substantially higher, likely ending up in the 35% to 45% range.
More than 12,000 DePuy ASR hip replacement lawsuits have been filed by individuals in the U.S. who experienced problems with the implant, all involving similar allegations that the metal-on-metal design of the artificial hip was defective, resulting in the release of metallic debris into the body as the metal parts rub against each other during normal wear and tear.
Plaintiffs allege that Johnson & Johnson and their DePuy Orthopaedics subsidiary failed to adequately research the design or warn about the risk of the device failing within a few years.
DePuy ASR Hip Settlement
Under terms of the agreement outlined by lawyers at a hearing late Tuesday afternoon, Johnson & Johnson will pay about $250,000 for each hip patient who required replacement of their DePuy ASR implant, plus the manufacturer will cover medical costs related to the procedures and liens from health insurance carriers.
About 8,000 claims would be covered by the agreement, including individuals in the United States who had a DePuy ASR implant for at least 180 days and required removal before August 31. The average payment of $250,000 for pain and suffering in each claim will be paid from a pool of $2 billion, with certain factors impacting the base settlement amount, including the age of the plaintiff, the length of time the implant was in place, the weight of the plaintiff, whether they were a smoker and other circumstances.
For individuals who suffered “extraordinary injuries”, including complications associated with the revision surgery, additional compensation may be obtained from another pool of $475 million.
The agreement is not mandatory, and each individual plaintiff will still have the option of whether to accept or reject the offer. However, the deal reportedly requires 94% of eligible claimants to accept the terms for it to proceed.
While the hip replacement settlement will resolve the majority of claims, it will not end all DePuy ASR lawsuits. Individuals who decline the offer and those who have not had to have their DePuy ASR hip replaced will continue to litigate their claims. In addition, individuals who have their hips fail in the future will be able to seek compensation moving forward.
Prior to the agreement, only two DePuy ASR cases made it to trial nationwide, with a California jury awarding $8.3 million in damages earlier this year and a second trial in Illinois state court resulting in a defense verdict weeks later.
Additional bellwether trials were expected to begin early next year in the federal court system and New Jersey state court, however those cases will not go forward in light of this agreement.