Johnson & Johnson May Pay $3B to Settle DePuy ASR Hip Lawsuits

Bloomberg News is reporting that Johnson & Johnson may offer more than $3 billion to settle all DePuy ASR hip lawsuits, which could average out to nearly $300,000 per claim for individuals who received one of the recalled metal-on-metal hip systems.  

Johnson & Johnson’s DePuy Orthopedics subsidiary currently faces about 11,500 product liability lawsuits brought by individuals who allege that they have suffered complications from an ASR XL hip replacement, which was removed from the market in 2010 amid reports of a higher-than-expected number of early failures.

A report by Bloomberg News this week indicates that “people familiar with the matter” have confirmed that the manufacturer is now discussing paying more than $3 billion in DePuy ASR hip settlements, with the information coming only weeks before the first federal trial is scheduled to begin.

Prior reports have suggested that plaintiffs rejected overtures from Johnson & Johnson to pay an average of more than $200,000 per case to settle the DePuy ASR litigation. However, attorneys invlolved in the lawsuits indicated that the offer was too low and did not provide sufficient compensation for individuals who received one of the recalled components.

A number of early trials involving the DePuy ASR implant are expected between September 2013 and January 2014, and the outcome of those cases may influence further negotiations. Bloomberg News also indicates that a number of other facts still have to be resolved before any agreement can be reached, including the number of years the manufacturer agrees to pay for future claims, as well as Medicare reimbursements and what provisions will be provided for plaintiffs who have suffered more significant injuries.

Upcoming Trials May Affect Settlement Negotiations

In the federal court system, all lawsuits over DePuy ASR implants filed in U.S. District Courts throughout the country have been centralized for coordinated pretrial proceedings in the Northern District of Ohio, as part of an MDL or Multi-District Litigation.

A small group of cases have been prepared for early trial dates, known as “bellwether” cases because they are designed to help the parties gauge how juries are likely to respond to evidence and testimony that may be repeated throughout the litigation.

In the DePuy ASR hip MDL, the first case is scheduled to begin on September 9, involving a lawsuit filed by Ann McCracken, who alleges that she received one of the metal-on-metal implants months before it was recalled from the market and required revision surgery less than two years later.

While about 8,000 DePuy ASR lawsuits are a part of the federal MDL, there are thousands filed in state courts nationwide. Two trials at the state level have already been concluded.

In March, a California jury awarded $8.3 million in damages in the first DePuy ASR trial in the country, after the plaintiff was given an expedited trial date due to his grave health. However, a subsequent trial in Illinois state court ended in a defense verdict in April, after the jury concluded that the manufacturer was not liable for failing to warn about the risk of problems.

Metal on Metal Hip Replacement Problems

The DePuy ASR is a metal-on-metal hip replacement system which features chromium and cobalt in it’s ball-and-socket design.  As the metal parts rub against each other, microscopic metal particles may be shed into the body, potentially resulting in metallosis, which may cause the device to loosen or fail, according to allegations raised in the complaints.

A DePuy ASR recall was issued in August 2010, after Johnson & Johnson acknowledged that about one out of every 8 implants may fail within five years. However, other reports have suggested that design problems may cause a far greater number of the artificial hips to fail.

In addition to claims brought by individuals who received an ASR implant, a number of other metal-on-metal hip lawsuits have been filed against the manufacturers of artificial hip systems that feature a similar design. At least three other consolidated federal MDLs have been established for lawsuits over other hip implants.

According to the most recent case list (PDF) provided by the U.S. Judicial Panel on Multidistrict Litigation, there are currently 4,278 DePuy Pinnacle hip lawsuits pending in the Northern District of Texas, 587 Biomet Magnum hip lawsuits pending in the Northern District of Indiana and about Wright Conserve hip lawsuits pending in Northern District of Georgia.