DePuy Orthopaedics Inc. caught another (un)lucky break last week.
For the third time in three months, a judge delayed the first federal trial involving the company’s recalled ASR hip implants due to difficulties in scheduling expert witnesses. Originally slated to begin in July, the trial was first adjourned to Sept. 9 and then again to Sept. 24, according to court documents. On Oct. 25, U.S. District Court Judge David Katz (the Northern District of Ohio) postponed the trial a third time—possibly for 90 days—citing witness and deposition scheduling conflicts as well as snags in the pre-trial discovery process. The bellwether trial is the first of 7,860 similar federal lawsuits against DePuy Orthopaedics; once it begins, the federal trial is expected to be a major milestone since close to 8,000 federal lawsuits are consolidated under Judge Katz, noted the law firm Brown, Paindiris & Scott LLP of Glastonbury, Conn., which is representing a number of plaintiffs in metal-hip lawsuits against J&J and its rivals.
An additional 3,600 ASR lawsuits are pending in state courts, two of which already have been settled—a California jury awarded $8.3 million to a retired Montana prison guard in March (DePuy, naturally, is appealing the verdict) and an Illinois jury sided with the company in April, rejecting claims that DePuy’s ASR XL hip implant was defectively designed and causes debilitating injuries.
"Originally we believed many of these cases would wrap up in 2013, however since DePuy was able to sustain a victory in the Illinois trial it has enabled DePuy to continue to drag out the litigation,” Chris Janish, CEO of Legal-Bay LLC, told The Rock Hill Herald. “Our clients are very frustrated with DePuy at this point, however some of them just cannot wait for justice and need funds to survive.”
Joint replacement registries in both Australia and the United Kingdom have recorded higher than expected complications with DePuy’s ASR Hip Resurfacing System and ASR XL Acetabular System total hip replacement, including a loosening of the implant within the body, bone fractures near the implant, dislocation and a condition called metallosis, which occurs from the rubbing of metal parts.
The growing number of patients needing a second hip replacement prompted Johnson & Johnson’s DePuy Orthopaedics unit to recall its ASR XL Acetabular System, a hip socket used in traditional replacement surgery, and the ASR Hip Resurfacing System, a partial hip replacement that involves placing a metal cap on the ball of the femur in order to preserve more bone. The company announced the recall on Aug. 26, 2010.
DePuy is rumored to be negotiating a $3 billion out-of-court settlement of the lawsuits. Such a deal would give each plaintiff close to $300,000, though the actual payout per case could vary depending upon the specific factors involved. Legal experts, however, are skeptical that DePuy will settle the lawsuits before a trial begins.