Bellwether Trial Scheduled for DePuy ASR Hip Litigation

One of the growing list of DePuy ASR hip replacement lawsuits has been given an early trial date as part of ‘bellwether’ hearings designed to gauge juries’ reaction to the evidence. The trial – which will be at least the third lawsuit in the ongoing DePuy hip litigation to reach a jury – is scheduled to begin in New Jersey this October. Hundreds of similar complaints are currently pending in the state, where DePuy is headquartered.

More than 600 DePuy ASR hip replacement lawsuits were recently consolidated into a Multi-County Litigation (MCL), set to be heard before Judge Brian R. Martinotti in the Superior Court of New Jersey for Bergen County.

The bellwether trial will begin on October 21, according to a case management order issued by Judge Martinotti. A deadline of June 17 has been established for plaintiffs to identify expert witnesses. The defense has until August 2 to do the same. All ‘discovery’ must be with the court by September 13, and Judge Martinotti will issue further deadlines for witnesses, exhibits and depositions in due course.

At least two other DePuy ASR lawsuits have been heard in state courts around the United States. In California, a jury verdict of $8.3 million was awarded, and a trial in Illinois found in favor of DePuy.

Anyone involved in DePuy hip litigation will be watching closely. The outcome of the bellwether trial will influence the size of any potential settlement reached between DePuy and plaintiffs.

More than 10,000 DePuy hip lawsuits pending

State and federal courts are waiting to process more than 10,000 DePuy ASR hip replacement lawsuits, all making similar allegations about the controversial metal-on-metal hip implant. Most lawsuits were filed following the negative publicity surrounding the system’s withdrawal from the market, a move instigated by parent company Johnson & Johnson in August 2010.

The implant was withdrawn after research data suggested a failure rate as high as 1 in 8 devices. Some experts have estimated the failure rate to be even higher – as much as 30% over the course of six years. By the time Johnson & Johnson issued the ASR hip recall,  some 90,000 patients across the world had already been implanted with the system.

Most DePuy hip lawsuits are pending as part of a multidistrict litigation (MDL 2197), being presided over by U.S. District Judge David Katz in the Northern District of Ohio.

Lawyers blame controversial route to market

Some legal experts have cited the ASR hip implant’s route to market as a contributing factor in its high failure rate. The FDA’s safety review process allowed a number of metal-on-metal implants, like the DePuy ASR, to be fast-tracked owing to their similarity to previously approved products. Manufacturers were able to bypass clinical trials, and the high risk of metallosis (metal poisoning) and other complications were not adequately studied.

As the number of DePuy ASR hip replacement lawsuits has increased, the FDA issued new guidelines for the approval of metal-on-metal implants:

• Physicians must only use metal-on-metal systems when there is no alternative
• They must pay close attention to patients who have received a metal-on-metal implant
• Manufacturers must prove the safety of their existing systems
• Any metal-on-metal implant produced in future will have to undergo rigorous, comprehensive clinical tests before reaching the market