An estimated 10,750 lawsuits have been filed in the United States by patients alleging that the recalled DePuy ASR all-metal artificial hip implant is defective, including more than 8,000 lawsuits consolidated into a single class action lawsuit to be tried in a federal court in Toledo, Ohio. Another 2,000 cases will be tried separately in California courts. According to some legal experts, these lawsuits may cost DePuy parent company Johnson and Johnson billions of dollars to resolve. The first of these lawsuits to go to trial was settled in Los Angeles, California last week the jury awarded $8.3 million in compensatory damages to the plaintiff, a former Montana prison guard. The second of these lawsuits, filed by a 54-year-old Illinois nurse alleging that the DePuy all-metal hip joint shed toxic debris in her soft tissue and bloodstream, requiring her to undergo a second revision surgery to replace the failed implant.
The defendant’s attorney argued that DePuy was not aware of any defects when it marketed the implants to patients and healthcare providers as a safe and more durable alternative to implants made of other materials such as plastic or ceramic. According to Johnson and Johnson’s lawyer, the company voluntarily recalled the implant in 2010 following a U.K. study indicating that the ASR all-metal hip joint failed prematurely in 13 percent of British patients. A subsequent internal study conducted by DePuy researchers in 2011 concluded that 34 percent of these implants failed in the U.S. within 4 years and six months. Within seven years of their installation, approximately 44 percent of ASR implants failed in Australia, according to a study conducted last year. According to Johnson and Johnson’s attorney’s, the recall, prompted by the higher than average failure rates, does not mean the company is admitting wrongdoing or that the device’s design is defective.
The jury in the first trial awarded compensatory damages to the plaintiff for medical bills and pain and suffering, but declined to award the up to $179 million in punitive requested by the plaintiff’s attorneys, finding that Johnson and Johnson had adequately informed patients of potential defects. Witnesses in the trial described reports from surgeons and medical experts employed by the company warning DePuy executives of possible problems with these devices years before the official recall announcement. Some legal experts have predict that other plaintiffs, who may seem more sympathetic to jurors, could be awarded significant punitive damages. The next case will go to trial in May, unless it is settled before the set court date.
