Bellwether Trials Commence in DePuy ASR Hip Implant Litigation

Joseph Kasouf, Esq.

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On Friday, January 25, 2013, a jury heard arguments in the first of approximately 10,000 lawsuits filed against Johnson and Johnson’s subsidiary, DePuy Orthopedics Inc. This first trial, involving only one plaintiff, commenced after a global settlement offer of $200,000 per plaintiff was rejected, a deal which could have cost the Defendant in excess of $2 billion.

In his opening statement, Michael Kelly, Counsel for Plaintiff, indicated that Defendant knew that its ASR hip implant unit had design defects, but hid such defects from the surgeons who implanted the device. Among such defects was the design of the ASR cup, in which the metal ball of the hip replacement was meant to rotate. Because the cup was shallower than other cups, the joint was prone to failure and led to release of toxic debris – cobalt and chromium ions - into the bloodstream.

Kelly, in his opening argument, showed the jury a horrific post-hip surgery image of Plaintiff’s hip socket containing black material linked to the ASR implant unit. According to the deposition testimony of Plaintiff’s doctor, if the material had not been removed, Plaintiff would have died due to the cobalt and chromium building up in his bloodstream.

One of the first witnesses called in the case, a former DePuy Product Manager, admitted that DePuy never told surgeons that the failure rate of the ASR implants requiring revision surgeries was eight times that of other metal-on-metal devices manufactured by competitors, such as Pinnacle. He said that Defendant elected not to redesign the ASR cup because of financial and business reasons.

In response, Counsel for Defendant focused the opening arguments on establishing Plaintiff’s current condition was caused by other factors unrelated to the ASR hip implant unit. Counsel for Defendant attributed Plaintiff’s current health issues to a life-long smoking habit, exposure to Agent Orange during the Vietnam War and Plaintiff’s kidney cancer hindering his body’s ability to filter chromium and cobalt. Further, Defense Counsel alleged that because the removal of the implant did not remediate Plaintiff’s health problems supposedly caused by the metal hip, then the injury was not caused by the implant.

Although a global settlement is likely, the parties will try several bellwether cases first in order to put a firm value on individual cases.

Kransky v. DePuy, Docket No. BC456086, Cal. Sup. Ct., Los Angeles.

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