A Los Angeles jury recently awarded a DePuy ASR hip recipient, Loren “Bill” Kransky, $8.3 million for his injuries involving his hip replacement.   This was the first of 10,750 DePuy ASR hip lawsuits to go to trial. The jury’s verdict, which came after 6 days of deliberation, included $338,136 in damages for medical expenses and $8 million for physical pain and emotional suffering.

Plaintiff attorney Brian Panish had requested $5.3 million in compensatory damages and as much as $179 million in punitive damage. Although the jury decided that DePuy did not owe punitive damages, Panish seems confident that they will come. “This is the first day of reckoning for DePuy,” he said after the verdict was announced. “We’ll get punitive damages in the next trial.” At least one juror answered to reporters that he wanted to give punitive damages based on DePuy’s delay in addressing the problem.

In opening arguments of the trial, internal DePuy documents revealed just how much DePuy knew about failure rates leading up to the recall (you can see them here). Kransky had his hip replaced in December 2007 and had his revision surgery in February 2012. As expected, DePuy focused on the Kransky’s other health conditions. “It’s not a case about a recall. It’s not about revision rates” argued Johnson & Johnson attorney Michael Zellers in his summation.

DePuy has already announced in a statement that they plan to appeal the jury’s decision. “We believe the ASR XL was properly designed, and that DePuy’s actions concerning the product were appropriate and responsible” said spokeswoman Lorie Gawreluk.

Source: Bloomberg

While this verdict is favorable for DePuy plaintiffs, there is still a long road ahead in resolving these claims. Even if DePuy is not successful in their appeal, this verdict cannot be used as an indicator of how every case will be compensated. The cases will be judged based on their own merits, and DePuy has made it clear they are not rolling over without a fight. Bellwether Trials, which will commence this spring, will be an important component to the litigation as well.

Contact us if you have any questions about your hip replacement, the litigation, and/or a potential claim.

After a recent request to consolidate pending cases against Stryker Orthopedics in New Jersey State Court, Stryker announced last month that they will not object to the consolidation terms outlined in the petition. This means that cases will likely be consolidated in the requested venue of Bergen County, under Judge Brian Martinotti.

Judge Brian Martinotti has experience with similar cases involving defective metal-on-metal implants. In Addition, the location of Bergen County is close to the defendant’s headquarters. At least 10 cases have been filed so far in the state of New Jersey.

Earlier this month, the United States Judicial Panel on Multidistrict Litigation (JPML) decided that Biomet M2A Magnum hip claims will be centralized in the Northern District of Indiana (See Case MDL No. 2391). The pretrial proceedings will be assigned to the Honorable Robert L. Miller, Jr., who is experienced and well-versed in complex mass tort litigation.

The Panel made this decision despite objections from Biomet, whose lawyers argued against consolidation. Specifically, defendants argued that consolidation of the lawsuits was not appropriate because (1) plaintiffs’ injuries were too different, (2) the Biomet M2A Magnum was not subject to a recall, and (3) the system has been comparatively less problematic than similar hip implant products of its competitors.

However, the Panel’s final position stated that, since the cases involved common questions of fact, consolidation would better serve the convenience of both parties and the witnesses involved.

Although the Panel agreed with plaintiffs on the issue of centralizing the claims, the JPML had its own ideas pertaining to the appropriate district for the proceedings. The Northern District of California, the Eastern District of Louisiana, the District of New Jersey, the Eastern District of New York, the Southern District of New York, the Southern District of Ohio, and the Southern District of Texas were all suggestions from plaintiffs in support of centralization. However, the Panel decided on the Northern District of Indiana based on its central geographic location, proximity to Biomet’s headquarters in Warsaw, Indiana, and favorable docket conditions.

The Biomet M2a Magnum litigation now joins the DePuy ASR, DePuy Pinnacle, Zimmer Durom and Wright Conserve as the fifth MDL for metal-on-metal hip implant devices. There have also been motions in multiple states to consolidate cases for the recently recalled Stryker Rejuvenate and ABG II hips.

What is an MDL?

When a drug, medical device, or other type of product is alleged to cause injuries and/or deaths, many lawsuits against the manufacturer of the product can be filed in courtrooms across the country.

If these cases are deemed similar enough to each other, they can be merged into a multidistrict litigation for consistency and efficiency purposes. The goal of the MDL process is to avoid duplicate discovery, inconsistent pre-trial rulings and conflicting verdicts.

The MDL process also helps speed up the process of handling numerous (sometimes thousands) of separate civil lawsuits pertaining to the same alleged tort (wrongdoing).

In determining whether consolidation to an MDL is appropriate, a panel considers whether civil actions pending in different districts involve one or more common question of fact. If it is decided that consolidation makes sense, the panel will then decide on the district in which to centralize and the judge to preside over the matter.

Although multidistrict litigations can be confused with class action suits, they have important differences. The cases that are consolidated into an MDL start and remain individual claims throughout the litigation.

Over the course of the next three months, eight top DePuy Orthopaedics executives will be required to testify in the DePuy ASR multidistrict litigation under the Honorable David A. Katz. The company leaders, which include the former and current company presidents, will be required to produce ASR-related documents, notes, outlines, presentation materials, testimonies and oral proposals prepared or given to them.

After this year’s discovery of a smoking gun email between top executives, DePuy has been questioned as to exactly how much – and for how long – they knew about failure rates.

The DePuy ASR XL system was passed through the FDA through the 510(k) clearance program, which does not require rigorous clinical trials before it is approved for the U.S. market. However, the ASR Resurfacing System did not qualify for 510(k) clearance, thus requiring the FDA’s review of clinical trials. After their review, the FDA rejected DePuy’s application, requesting additional trials due to safety concerns. In August of 2009, internal emails uncovered executives’ doubts that additional testing would improve safety data.

According to a drugwatch argicle, the multidistrict litigation is now made up of over 6,000 federal cases. DePuy will also face over 2,000 more lawsuits are filed in state courts.

To see the company executives that will be expected to testify, see the drugwatch article by clicking here.

As lawsuits have continued to pile up against Johnson & Johnson’s DePuy Orthopaedics over their recalled ASR hip, the company has reached what is believed to be the first settlement for cases brought by recipients of the device. Reports name Anneliese Rundle, Martha Bender and Katherine Guy as the first claimants to reach a settlement with DePuy over their injuries. Their trial was scheduled for December and would have been the first case to be presented to a jury in the United States.

The next trial for DePuy ASR lawsuits is set for January of 2013.