J&J Reported to Pay $4 Billion DePuy Hip Settlement

Plaintiffs involved in DePuy ASR hip litigation may soon be compensated for their pain, suffering and damages sustained from the flawed metal-on-metal Articular Surface Replacement, or A.S.R., implant. Two attorneys who were briefed on the accord told The New York Times that Johnson & Johnson has agreed to pay up to $4 billion to resolve thousands of product liability claims filed by patients harmed by the recalled hip replacement.

A company spokesperson declined to comment on the possible DePuy hip settlement, which is subject to court approval before any funds are dispersed. If the plan goes through, insiders say that an announcement will likely be made in the next few days.

DePuy hip settlement must include at least 94% of plaintiffs

People familiar with the tentative deal told Bloomberg News that at least 94 percent of all ASR lawsuit plaintiffs must agree to the terms of the accord or else the company may withdraw its offer. The settlement marks the second multibillion-dollar payout this month for the pharmaceutical giant, which on November 4 agreed to pay $2.2 billion over civil and criminal charges involving illegal marketing of Risperdal and other antipsychotics.

An estimated 7,500 DePuy hip lawsuits – filed in state and federal courts – will be resolved if the settlement wins court approval. Under the terms of the accord, each plaintiff would be compensated roughly $350,000, a figure that may fluctuate slightly given the person’s medical history, age and associated hip replacement complications. Lawyers say that individuals who have not had hip revision surgery would not be eligible for DePuy hip settlements. One product liability attorney told Bloomberg, “It’s certainly a lot of money, but there are whole bunch of people who contend these hips caused grievous injuries…So some of them may feel like this isn’t enough compensation for what they’ve gone through.”

Metal-on-metal design at the core of ASR hip litigation

In 2005, the ASR hip was promoted as a more durable option for active patients, given its study metal construction, but the ball and cup were later shown to rub against one another, shedding metallic debris in the process. DePuy decided to pull the ASR off all global markets in mid-2010, after the device was reported to suffer abnormally high failure rates.

Now, the company concedes that ASR hip failure will occur in up to 40 percent of patients within the first five years. Such unprecedented failure rates have spurred litigation, FDA warnings and a ban on such metal-on-metal hip replacements in UK hospitals funded by the government.

When the manufacturer implemented the DePuy ASR recall, it offered to compensate patients for revision surgery expenses– a program that has already cost J&J over $993 million. Those who have taken legal action are demanding additional compensation for lost wages, diminished earning capacity, loss of spousal consortium, as well as pain and emotional suffering. Sources close to the litigation say the settlement would consider damages for individuals who sustained “extreme injuries” from the hip implant, and those who remained in hospital for long periods during the recovery process after the removal surgery.

J&J reportedly also agreed to earmark additional funds to reimburse Medicare and private insurance carriers for ASR claims, which will likely tack on millions of dollars to the anticipated $4 billion settlement.