DePuy ASR Settlements May Leave Thousands Without Recourse

The DePuy ASR recall has cost Johnson & Johnson millions of dollars in litigation and medical expenses, and despite a $2.5 billion settlement proposal to compensate 8,000 hip replacement patients, the accord may still leave thousands of injured recipients in a financial lurch.

Concern is centered around the many hundreds of patients who had their hip revision surgery after the accord’s deadline – August 31, 2013. For these individuals, or those who have yet to need corrective surgery, it’s unclear whether they will see a dime of compensation for DePuy hip problems, even though the modular device is known to suffer design flaws and high failure rates.

Under the terms of the agreement, DePuy ASR settlements would offer patients a base award of $250,000, but this figure would be adjusted based on several factors including the patient’s complications and extent of injuries, medical history, age and length of hospitalization.

Critics of the settlement argue that the deal’s payout structure is vague. Do ASR settlements include lost wages for those who couldn’t work while they were recuperating? And what about patients who were implanted with the metal-on-metal hip but have yet to experience any problems, though they are bound to suffer complications in the near future?

Injured patients in outrage over proposed DePuy ASR settlements

In order for the DePuy hip settlement to proceed, at least 94 percent of ASR recipients must agree to the accord’s stipulations and file claims on or before April 1, 2014. Should participation levels fall short, DePuy reserves the right to walk away from the deal on June 1, 2014.  According to the New York Times, the accord was proposed to Ohio District Judge David A. Katz on Tuesday, November 19.

DePuy voluntarily pulled all Articular Surface Replacement (ASR) hip systems off the U.S. market in 2010 after the National Joint Registry of England and Wales published alarming failure rates of the device.  The report revealed that ASR hip implant failure, which required replacement surgery, was between 12 and 13 percent within the first years of implantation. However, the manufacturer has since stated that ASR hip complications and failure is likely in 40 percent of recipients within the first five years.

The DePuy ASR recall affected roughly 37,000 units in the United States and 93,000 globally.

An estimated 12,000 DePuy ASR hip lawsuits are currently pending in state and federal courts, with nearly 8,000 of these claims brought by patients who endured hip revision surgery. The remaining 4,000 product liability cases involve claimants who suffered metal contamination and other debilitating side effects from the modular components, which were prone to corrosion and fretting.

Compensation for DePuy hip problems

If enough claims are made, the settlement would cover around 8,000 patients in the U.S. who had the ASR hip implant explanted due to premature wear and complications.

The amount awarded to each person would depend on:

• If the patient smoked at the time of revision surgery
• How long the ASR device was implanted
• If the person had hip replacement on the same hip before receiving the ASR
• A body mass index (BMI) of more than 35 before ASR implantation
• The patient’s age

Those who sustained “extraordinary injuries” related to the metal hip implant – such as double revision surgery in both hips – would qualify for supplemental compensation, according to hip replacement lawyers and other settlement administrators.