Drug Recall Lawyer Blog

DePuy issued a U.S. recall of its metal-on-metal ASR hip implants in August of 2010 (after 93,000 implant procedures) because of an extremely high failure rate requiring patients to have revision surgeries. Evidence so far indicates that the device is exceedingly difficult for orthopaedic surgeons to implant properly. For background on the DePuy saga, see our DePuy Recall website and prior DePuy Drug Recall Lawyer Blog entries.

The hip implant was withdrawn from the Australian market in late 2009. DePuy (a subsidiary of Johnson & Johnson) told the public in the U.S. shortly thereafter that it was phasing out the implant because they were “focusing on newer technologies.”

The Australian Senate likened these hip implants to “ticking time bombs.” They want a system put in place to monitor adverse outcomes for hip implant patients, and they want to make sure doctors and patients are aware of the problems they may be facing. Most importantly, they want to make sure implant patients are continually monitored for future problems.

The medical monitoring program would help people to be regularly evaluated for metallosis, blood poisoning caused by metal fragments from the implants. So far, 430 out of 5,500 Australian patients have undergone a second surgery because of the faulty implant—that’s almost a ten percent failure rate. The real number is probably higher—many patients may be in line for that surgery, and experts believe that many more installed devices will fail within about six years of implant.

If you have had a DePuy ASR hip implant, and you are experiencing problems or have had to replace the implant, contact us at 800-553-8082 or get a free online consultation.
Sources: Sydney Morning Herald

• All Metal Hip Replacement: No Advantage Over Older Implants
• Metal On Metal Hip Replacents - A Colossal Failure?
• New Repor Highlights Metal Hip Problems
• Hip Replacement Profits

The vast majority of DePuy hip replacement lawsuits will - if they go to trial - be tried in the states where the surgeries occurred (excluding bellwether trials and state court cases). But the discovery of these DePuy cases is consolidated in Ohio. That means for now, every federal court case sits in what is called an MDL in Ohio.

Some DePuy plaintiffs' lawyers, for various reasons, do not want to wait on the slow pace of the MDL in Ohio. A number of cases that were transferred from Alabama have named a sales representative from DePuy/Johnson & Johnson as a defendant. Plaintiffs' lawyers claim because there is diversity of citizenship - an Alabama resident on both sides of the "v" - that the cases should be remanded to Alabama.

Let's be honest. Plaintiffs' lawyers would not have named this sales rep if he was not an Alabama resident. The DePuy lawsuits are clearly not about a sales rep. Still, that is not the litmus test as to whether the joinder is fraudulent. In fact, the burden for the defendants is quite high. To keep these Alabama cases in the MDL, DePuy was required to meet the difficult burden of showing either “(1) there is no possibility the plaintiff can establish a cause of action against the resident defendant; or (2) the plaintiff has fraudulently pled jurisdictional facts to bring the resident defendant into state court; or (3) there is no real connection between the claims against a diverse defendant and those against a non-diverse defendant.

Continue reading "Where Are DePuy Hip Implant Cases? New Opinions from MDL Judge in Ohio" »

On Monday, a U.S. Judicial Panel on Multidistrict Litigation assigned all DePuy Pinnacle hip implant recall lawsuits pending in federal courts nationwide to Judge James E. Kinkeadein in the U.S. District Court for the Northern District of Texas.

The whole idea of the MDL process confuses victims? Are the DePuy claims a class action lawsuit?

The answer is the DePuy hip claims are "sort of" a class action lawsuit. The federal cases will be consolidated in Texas for what is called core discovery - interrogatories (written questions) to DePuy, depositions of key DePuy witnesses and experts on both sides, and other discovery procedures to determine the facts of these lawsuits. Typically, the MDL judge may preside over a few trials to help both sides better understand the value of the cases. If there is not a global "class action settlement" at that point, the cases are sent back to their home state for specific discovery and trial.

What is the settlement value of these DePuy hip implant cases? Anyone who answers this question definitively is not being entirely honest - at this point, no one really knows. But DePuy/Johnson & Johnson have set aside almost $1 billion to pay these claims and, ultimately, I don't think is going to cover it. Many of these cases have trial values that are worth millions of dollars. So are high six figure and seven figure DePuy settlements likely? I think so. But only time will tell.

Do you have a DePuy Pinnacle hip implant? Get more information at 800-553-8082 or get a free online consultation here.

Nine plaintiffs filed a motion in the DePuy recall MDL saying that, for all of the legal nuances, "Hey, keep us out of the MDL because we are getting old and don't want to wait forever for this." The MDL panel judge said that while she appreciates the concern of plaintiffs of advanced age and their desire for quick resolution of these lawsuits, these argument should be taken up by the transferee judge, who is "invested with wide discretion to structure pretrial proceedings to accommodate the needs of all parties" to the Depuy lawsuits.

You can read the order here.

Everybody wants in. You can't do a search on Google without finding 20 lawyers looking for recalled DePuy hip replacement cases. It is pathetic. (Oh, now that you mention it, you can find some pandering from us here.)

Anyway, the fund that manages health benefits for a number of towns in New Jersey has filed a class action lawsuit against DePuy Orthopaedics over its ASR hip implant recall. The fund accuses DePuy (Johnson & Johnson) of fraud and unjust enrichment, alleging DePuy knew its hip implants had problems and left them on the market, ostensibly hoping no one would notice (no one did for a while, actually).

In other words, their lawsuit mimics the language of virtually every DePuy hip replacement lawsuit.

Johnson & Johnson’s fourth-quarter profit fell 12% and projected lower than expected earnings in 2011. One big reason: J&J recorded a $922 million charge for the cost of defending and paying claims in the DePuy ASR hip recall lawsuits.

I don't think $922 million is going to be enough to cover the Depuy and Pinnacle hip lawsuits. But it does give an indication that J&J is starting to put money aside to deal with cost of the recall.

If J&J wants to increase profitability, it has to get back to the basics of making great products. It is easy to forget, J&J was once the gold standard in the industry. It has a long way to dig itself out of the hole it created.

History tells us that it is not the crime but the cover-up that often causes the most damage. In drug and medical device cases, there is usually a Nixonian leitmotif: what did you know and when did you know it with respect to the potential harm caused by the drug.

Last month, another DePuy class action lawsuit was filed. The claim is an interesting cover-up allegation. The class action claims that after the DePuy ASR recall, the company deceived patients by agreeing to make things right and in exchange, getting access to hip recall victims' medical records. Of course, making things right is relative. DePuy has essentially promised victims nothing in exchange for something, which is the essence of this class action lawsuit.

This byproduct DePuy hip recall lawsuit is probably a sideshow to the core of these hip implant lawsuits. Rummaging through plaintiffs' medical records while pretending to promise them something in exchange is awful. It is a clear end run artifice designed to fool plaintiffs into believing they don't need a lawyer. But the compensation for this inappropriate conduct pales in comparison to the real injuries that stem from the DePuy ASR hip recall. But this class action lawsuit underscores that people are mad and DePuy is not making things any better by not playing it straight with victims.

If you have a potential DePuy hip implant lawsuit, call 800-553-8082 or get a free online consultation.

More hip implant problems, this time with Johnson & Johnson’s DePuy Orthopaedics division (click here for Stryker and Zimmer hip implant issues).

Contrary to the good corporate responsibility of Boston Scientific for their quickly recalled defibrillators, DePuy seems to have taken their sweet time with their ASR hip implants, in addition to trying (and failing) to direct public misinformation on the issue.

First the background: the DePuy ASR hip implant is used for hip resurfacing (which is apparently not an issue), and more traditional hip replacement, which is at issue. The device is a metal-on-metal ball and socket, which can cause metal debris early in the life of the implant. That metal debris causes inflammation, and can lead to damaged muscles and soft tissue. The end result is that a very expensive and painful replacement surgery intended to last about 15 years ends up needing revision within two or three years.

Use of the device in the United States started in 2005. Since 2008, the FDA has received approximately 300 complaints (most people don’t complain to the FDA, so this indicates that the problem is much larger) from patients or their doctors about the early failure of the device.

Here’s where DePuy and Johnson & Johnson try to hide the ball from consumers. The product is more heavily used in Australia, and it was withdrawn from the Australian market in December of 2009—three to four months ago. A few months ago, the public was informed that DePuy would be phasing out the ASR hip implant here in the U.S. because of “slowing sales.” Indeed, last month DePuy’s worldwide vice president for regulatory affairs stated that “With declining sales of this particular product in its market segment, we are focusing on newer technologies.” So, according to the manufacturer, there was no safety issue. This "phasing out" seems to me to be diction-wrangling in order to avoid a technical recall, with its incumbent bad publicity.

But, with two years of reports of device failures, the experience of the Australian market, and DePuy’s own statements now indicate that the ASR has significant problems, and the failure rate directly impacts patient safety. The March 6 letter from DePuy states that the device has a higher failure rate when used on “certain types of patients,” which include those of short stature (often women) and people with certain bone weaknesses. This very statement seems to encourage doctors to stop using it. I wouldn't be surprised if DePuy is offering surgeons a refund (or perhaps DePuy credit) on returned ASR hip implants.

Add to this the fact that there is no information for consumers about the hip replacement problems anywhere on DePuy’s website or Johnson & Johnson’s website, and it is clear that the manufacturers are simply trying to avoid their responsibilities. The "phasing out" should have come sooner (at least at the same time as the Australian "withdrawal" from the market), and the manufacturer should have confessed its problems early, instead of lying to the public about “slowing sales.”

If you have a questions about a potential hip replacement lawsuit, call 800-553-8082 or go online for an internet consultation.