Johnson & Johnson ASR Hip Settlement Announced

The much anticipated Johnson & Johnson Depuy ASR Hip settlement agreement has been announced. The agreement was announced during an open court hearing in Judge Katz’s courtroom. Of course, the agreement has to be approved by Judge Katz. Another caveat for the agreement to go through is that 94% of all claimants must opt-in and agree to the settlement.

Details of the agreement are now readily available for the general public. In what was rumored to be a $4 Billion settlement, in actuality is more in line with a $2.5 Billion settlement. The settlement only covers those claimants who have had a revision surgery on their DePuy ASR metal-on-metal hip prior to August 31, 2013. This number is estimated to be close to 8,000 claimants.

Those claimants who have not yet had a revision surgery are technically shut out of receiving any compensation in this agreement. It is anticipated that another round of settlements will occur as the device fails in these claimants and they need revision surgery.

The base payment for a revision claimant will be about $250,000. That payment will fluctuate based on a number of factors including age, weight, length of time the implant was in, and if the claimant smoked. There will also be a pool of $475 Million for the most severely injured.

Settlement Reached in California ASR Trial

Johnson & Johnson subsidiary DePuy Orthopaedics has agreed to settle a DePuy ASR hip lawsuit on the eve of trial. The case would have been the first “bellwether” trial in a California state court consolidation of ASR cases.  The Plaintiff, Mr. Robert Eugene Ottman, was set to begin presenting his case in less than two weeks in San Francisco. (Ottman v. Johnson & Johnson Services, et al., No. CGC-12-517391; Calif. Super. Ct., San Francisco Cty.)

 

The details of the settlement, including what the amount of the settlement is, are not yet available but have been confirmed in a statement by the Mr. Ottman’s attorneys. The Court has given the parties two months to file the necessary dismissal of the complaint.

 

Depending on the amount and terms of the settlement, including medical subrogation and future costs, this development appears to be a good thing. In the consolidated cases in California alone, there appears to be approximately 2,000 cases filed. This does not include the Federal MDL, in which there are close to 8,000 cases pending. The Federal MDL docket, which is centralized in the Northern District of Ohio, is still awaiting its first bellwether trial. That bellwether has been postponed twice already and will commence sometime before January 2014. The California settlement will most likely have some impact on that bellwether trial.

 

Two other trials involving DePuy ASR lawsuits have already concluded at the state court level. In March, a plaintiff was awarded more than $8 million after a Los Angeles Superior Court jury found that the hip implant was defectively designed. (Kransky v. DePuy, BC456086, California Superior Court, Los Angeles County). This case was not a part of the consolidated California docket. However, a jury in Chicago found for Johnson & Johnson in a second trial just one month later. (Strum v. DePuy, 2011-L-9352, Circuit Court of Cook County). Both of these results have been covered on my blog and you can read my earlier posts regarding these outcomes.

 

Trials also are scheduled in state courts in San Francisco in October; in Hackensack, New Jersey, in October and January; in West Palm Beach, Florida, in November; in Chicago in December; and in Los Angeles in January 2014.

If you or a loved one have had hip replacement surgery and have been implanted with a defective DePuy hip, you may be entitled to compensation for medical bills, pain and suffering, lost wages and other injuries. Our firm is currently investigating claims for those people who have been implanted with DePuy hip replacement devices, both ASR and Pinnacle. If you would like a free case evaluation, please contact Booth Samuels at toll free 1-866-515-8880 or at booths@pittmandutton.com.

Bellwether MDL ASR Case Postponed Again

The first bellwether case to be tried in the MDL out of Ohio has been postponed again.

The trial was to begin today, September 24, after it was continued from a setting of September 9th. Judge Katz issued an Order yesterday citing reasons such as the difficulty in the scheduling of expert witnesses for appearance at trial and the need to conduct more discovery. Judge Katz did not reset the date for the trial to begin, but instead left it open for commencement within 90 days.

Two state court trials are still set to proceed. One is set for October 15 in California and the other is set for October 21 in New Jersey. We will be monitoring these cases closely.

ASR Bellwether Trial Delayed

The first bellwether trial to come out of the MDL has been postponed by Judge Katz for two weeks. The trial was supposed to start today, Monday, September 9 in Cleveland, Ohio.

 

The reason for the continuance is that there remain outstanding issues that must be resolved by the Court.

 

For instance, the Defendants filed a Daubert motion last Wednesday on one of the Plaintiff's key expert witnesses.  Also, the Court had not yet ruled on the critical choice of law issue that impacts punitive damages (DePuy arguing Indiana or for United Kingdom law to apply).  Defendants also just objected to 600 of the 700 exhibits identified by the Plaintiff for which the Court has yet to even begun to review.  DePuy served a rebuttal expert report  yesterday that the Plaintiff has not had a chance to address.

 

These and other pending motions must be resolved before either side can open its case and therefore the Court is opting to adjourn the trial for two weeks.

 

 

 

Judge Katz Rules Evidence of Recall Not Allowable In ASR Bellwether Case

In what was a major ruling, Judge Katz of the U.S. District Court for the Northern District of Ohio, the presiding Judge of the DePuy ASR MDL, ruled that evidence of the recall of the DePuy ASR metal-on-metal hip implant can be excluded from a bellwether trial over the device.

The first bellwether trial, Ann McCracken v. DePuy Orthopaedics, is slated for trial beginning September 9th.

Katz ruled last month on a number of pre-trial motions from both plaintiffs and defendants, granting DePuy's bid to keep evidence about the recall out of the trial. McCracken had argued that the recall should not count as a "subsequent remedial measure" following the 2009 implantation of a DePuy ASR LX model.

Katz disagreed, and ruled for DePuy. McCracken had a revision surgery performed in January 2011. Judge Katz noted in his order that evidence relating to the voluntary recall by DePuy of the ASR hip implant was inadmissible in this case because the Plaintiff’s original hip replacement surgery took place prior to when the recall was issued. Judge Katz determined the recall to be a “subsequent remedial measure,” which would have prevented harm if it had occurred prior to the plaintiff’s initial surgery.

Judge Katz also denied a motion by McCracken to exclude evidence of the FDA’s 510(k) clearance process of the device. Although  stated in her motion that the evidence was “irrelevant and prejudicial,” Judge Katz noted that the 510(k) process was the way in which this particular device arrived on the market. He ruled the defendants should be allowed to present the 510(k) process as evidence, as all parties involved would understand this is a clearance process based on an equivalency standard and not just a rubber stamp by the FDA.

We are not sure what this means for the first bellwether trial but I do not think it is a good sign of things to come. We are still confident that the bellwether jury will see the facts in a reasonable light and weigh the evidence accordingly.

DePuy Files Summary Judgment in California ASR Case

Johnson & Johnson, DePuy Orthopaedics Inc. and their affiliated companies have moved for summary adjudication in an ASR hip implant case scheduled to be California’s first bellwether trial on October 1, 2013.

The Defendants filed their summary judgment motion in San Francisco Superior Court July 26. This was the deadline given by Judge Richard A. Kramer, who presides over the coordinated DePuy ASR hip cases in California.

 

The Plaintiff in the case is Robert Eugene Ottman. His opposition motion is due August 30. The judge has already scheduled a hearing on dispositive motions for September 13.

 

In related news, Judge Kramer has ruled that some plaintiffs who are in the consolidated action in California can add DePuy Pinnacle hip implant claims to their lawsuits. The ruling came as a result of a motion filed jointly by seven plaintiffs. DePuy recalled the metal-on-metal ASR in 2010, but has not yet recalled the metal-on-metal Pinnacle hip replacement system. All signs from the Defendants point to no recall in sight.

The two DePuy products have been under U.S. Food and Drug Administration scrutiny, primarily because of one dangerous alleged side effect called “metal poisoning,” or “metallosis.” According to the FDA, metal ions could peel off into the patient’s bloodstream when the device’s metal parts rub together. This could lead to potentially severe health problems such as tissue damage, necrosis and pseudo-tumors.

Our firm is currently investigating claims for those people who have been implanted with DePuy hip replacement devices, ASR, Pinnacle, and all other metal-on-metal hips. If you would like a free case evaluation, please contact Booth Samuels at toll free 1-866-515-8880 or at booths@pittmandutton.com.

 

 

 

 

California Judge Denies DePuy's Motion to Toss Out $8.3M Verdict

 

 

A California Superior Court judge has denied DePuy Orthopaedics’ motions for new trial or judgment notwithstanding the verdict, upholding the $8.3 million judgment that resulted from the state’s first trial of a DePuy ASR hip implant case. The case is Kransky v. DePuy, BC456086, California Superior Court, Los Angeles County.

 

In March, the jury hearing the DePuy ASR recall lawsuit in California found the ASR hip was defectively designed, and awarded more than $8.3 million to the Plaintiff, Loren Kransky. Mr. Kransky sued the company under the theory that the ASR was defectively designed as well as DePuy's failure to warn his doctors that its product was dangerous. He claimed that the ASR hip caused him to suffer severe side effects, including metal poisoning. The jury found in favor of Mr. Kransky on the design defect claim and in favor of DePuy on the failure-to-warn claim.

 

During that trial, evidence was introduced which indicated Johnson & Johnson and its subsidiary, DePuy Orthopaedics, had knowledge that the ASR hip product was defective years before the recall was announced. The recall occurred in August 2010. However, that information was not shared with the public at large or the medical community. According to a New York Times report published on April 16th, much of the same evidence was introduced in a second trial that concluded last month in Illinois state court. However, the jury hearing that case found for Johnson & Johnson. For more information on that case, see my previous blog posts.

 

Los Angeles Superior Court Judge J. Stephen Czuleger issued his decision from the bench following a hearing May 24 and has scheduled a hearing in June on the plaintiff’s attorneys’ request for approximately $1.2 million in costs. DePuy submitted its motion for JNOV April 17^th in the corporation’s bid to persuade Judge Czuleger to throw out the verdict. In their motion, Depuy argued that the jury had erred and its verdict was inconsistent.Thus far, there has been no written order.

 

Judge Czuleger ruled that although there was a "legitimate conflict" in the evidence at trial as to when DePuy knew that its ASR hip implants were dangerous, this did not bar Mr. Kransky's ability to hold DePuy liable for a defectively designed product. The judge also rejected DePuy's claim that the overall body of evidence was insufficient to support Mr. Kransky's verdict, noting that there was "strong evidence" in support of his claim.

Court records indicate that there are more than 11,000 DePuy ASR hip lawsuits currently pending throughout the United States, most of which have been filed in a multidistrict litigation underway in U.S. District Court, Northern District of Ohio. The first trials in the MDL are expected to begin in September 2013. That date is subject to change as the first bellwether case has been continued already this year. The ASR MDL is titled In re: DePuy Orthopaedics, Inc. ASR Hip Implant Products Liability Litigation – MDL 2197.

Our firm is currently investigating claims for those people who have been implanted with the DePuy hip replacement devices, both ASR and Pinnacles. If you would like a free case evaluation, please contact Booth Samuels toll free 1-866-515-8880 or by email at booths@pittmandutton.com.



 

 

 

First DePuy ASR Case in MDL Rescheduled

The first bellwether trial for thousands of DePuy ASR hip lawsuits pending before the U.S. District Court, Northern District of Ohio, has been rescheduled. Originally slated to begin on June 3rd, the trial will now begin on September 9th, as per an order issued by U.S. District Judge David A. Katz on May 7th. Judge Katz continued the setting to allow time for further briefing and possible oral arguments on pre-trial motions. The next status conference in the federal DePuy ASR litigation will be held on May 14th, according to the Order.

There are about 10,750 lawsuits filed over the recalled all-metal hip implant. Approximately three-quarters of them are pending in the MDL.

First DePuy ASR Trial Set to Go Out Monday January 7th

 

The first DePuy ASR hip trial in the nation is scheduled to begin on Monday, January 7, 2013, in Prince George's Maryland Circuit Court. Bellwether trials in the federal DePuy ASR hip litigation will commence later this year. The trial is expected to last three weeks, according to court documents. (Jackson, et al. v. Chesapeake Surgical Ltd., et al., CAL 10-32147)

Thousands of DePuy ASR hip lawsuits are also pending in a multidistrict litigation underway in U.S. District Court, Northern District of Ohio, MDL No. 2197. According to court documents, the first trial in the federal DePuy ASR hip litigation will begin on May 6, 2013, with a second trial set for July 8, 2013.

6,000 DePuy ASR hip replacement lawsuits have been consolidated into the MDL based in Toledo, Ohio. Those proceedings are overseen by U.S. District Judge David A. Katz.  There are another 2,000 cases filed against Johnson & Johnson’s subsidiary DePuy across the United States, including lawsuits filed in Nevada, Maryland, California, Wisconsin, Florida and Utah.

The MDL is due to convene for a status conference in January 2013, during which time the court will most likely detail preparations for the first bellwether trials.

Although the statute of limitations has run in many states, people who have not yet filed a lawsuit should contact Booth Samuels toll free at 866-515-8880.

 

ASR Total Hip Replacement: A Painful Fail?

Trainee Orthopedic Surgeon David Langton from Newcastle University in the UK has dedicated the last three years of his life studying metal on metal hip replacements, specifically the ASR model, in an effort to attain his PHD. He believes that there is a problem with the configuration of the metal on metal hip replacement, namely the size of the cup. This causes wear to take in the "ring of the cup". "Chromium Cobalt ions concentrate in the hip fluid" and are also released into the blood. This subsequent accumulation of metal ions is "directly related to soft tissue damage and bony damage around the joints". His study has found that hip pain and groin pain are often noted side effects from these metal on metal hip replacements.
Site: David Langton on Metal on Metal Hips
Site: David Langton on Metal on Metal Hips

DePuy Pinnacle MDL News

More than 900 federal DePuy Pinnacle hip replacement lawsuits have been filed and have been included in the multidistrict litigation, or “MDL”, In re: DePuy Orthopaedics, Inc. Pinnacle Hip Implant Products Liability Litigation (MDL No. 2244). On February 1, 2012, a Master Cast List was entered by the court, detailing the case numbers, filing dates, and transferor districts of the DePuy hip replacement lawsuits currently pending before Judge James E. Kinkeade in the U.S. District Court for the Northern District of Texas. These cases were centralized for MDL on May 23, 2011.

Judge Kinkeade recently appointed plaintiffs’ counsel to serve on various leadership committees. In addition to assigning leadership rules, Judge Kinkeade appointed James M. Stanton as Special Master to help the court with pre-trial, trial and post-trial tasks. Now that DePuy hip replacement lawyers involved in the litigation have been assigned leadership roles and a Special Master named, discovery and motion practice can move forward. The initial discovery process will likely involve the identification and noticing of certain witnesses for depositions.

Growing at a rate of roughly 100 lawsuits per month, the Pinnacle hip litigation has steadily picked up steam since its inception nearly nine months ago. The growth of the DePuy Pinnacle MDL might be due to Johnson & Johnson’s recall of another one of its hip implant products. In August 2010, Johnson & Johnson issued a worldwide recall of its ASR metal-on-metal hip implants due to their excessively high failure rates. The recall was prompted by a study from the National Joint Registry of England and Wales, which concluded that 1 out of every 8 patients who received the devices had to undergo revision surgery within five years.

The growth of the Pinnacle MDL may also be attributed to greater consumer awareness of the dangers of metal-on-metal hip replacements, which have been widely reported by the media in recent months. The New York Times in December 2011 described problems with all-metal hips—originally intended to be more durable than implants made from metal and plastic components—as “the most widespread medical implant failure in decades.”

Artificial hips are intended to last at least fifteen years, but some all-metal versions fail as early as a few years after implantation. The high failure rate is widely attributed to the release of metal particles into a patient’s body, which results from friction between the ball and socket portions of metal hips. Some recipients are reporting symptoms of Pinnacle metal toxicity.

Although the metal-on-metal Pinnacle hip replacement devices at issue in the Pinnacle MDL lawsuits were not subject to the hip replacement recall 2010, plaintiffs allege that they share similar design defects to the ASR hip devices.

Pittman, Dutton & Hellums is actively filing cases on behalf of individuals allegedly injured by both types of artificial metal-on-metal hip implants- ASR and Pinnacle models. If you would like a free case evaluation, please contact Booth Samuels toll free at 1-866-515-8880 or at booths@pittmandutton.com.

The Cost of Metal-on-Metal Hip Implants

Some are calling metal-on-metal hip implants the most widespread medical implant failure in decades. Medical and legal experts estimate the hip failures may cost taxpayers, insurers, employers and others billions of dollars in coming years, contributing to the soaring cost of health care. The financial fallout is expected to be unusually large and complex because the episode involves a class of products, not a single device or just one company. There are many companies that manufacture and market metal-on-metal hip prosthetics, but the company most in the spotlight is DePuy Orthopaedics, a division of Johnson & Johnson.

The device’s ball and joint are made of metal and are failing at high rates within a few years instead of lasting 10 to 15 years or more, as artificial joints normally do. The wear of metal parts against each other is generating debris that is damaging tissue and, in some cases, crippling patients. Often times, this leads to metallosis, which can cause pseudo-tumors.

The incidents have set off a financial scramble. The New York Times recently reported that lawsuits and complaints against makers of all-metal replacement hips passed the 5,000 mark. Insurers are alerting patients that they plan to recover their expenses from any settlement money that patients receive. Medicare is also expected to try to recover its costs. However, this occurs in almost any lawsuit where a plaintiff is injured and a third-party has paid medical expenses related to that injury. The problem here is the grand scale of that recovery.

The New York Times reported that until a recent sharp decline, all-metal implants accounted for nearly one-third of the estimated 250,000 hip replacements performed each year in the United States. Most of that decline can be attributed to the recall of the ASR hip, which some estimate to have been implanted in 40,000 patients in the United States. As of October, some 3,500 patients had filed a lawsuit involving that device.

Some 500,000 patients have received an all-metal replacement hip, according to one estimate. A new study found that no new artificial hip or knee introduced during a recent five-year period — implants that included some of the all-metal hips — were more durable than older devices, and 30 percent were worse. The numbers on this are stifling. Does this mean that metal-on-metal technology, whether it involves hips or knees, is a complete failure?

Unfortunately, there is no data on the number of all-metal hips, or any prosthetic hip for that matter, that have failed prematurely in the United States because the outcomes of orthopedic procedures are not formally tracked by our government or private companies. However, by analyzing data from overseas and comparing that data to the estimated numbers in the United States, tens of thousands of patients in our country may have to undergo operations over the next decade to replace the implants. This is the conclusion of Dr. Art Sedrakyan, a researcher at Weill Cornell Medical College of Cornell University, who is studying the hip problem.

DePuy would not comment on how much it had paid in recall-related costs. But a spokeswoman, Mindy Tinsley, said in a statement that DePuy was working with patients and insurers.

Along with the ASR-related cases, DePuy also faces over 560 lawsuits in connection with the all-metal version of another hip model, called the Pinnacle. DePuy has not issued a recall of the Pinnacle because the company says that the model is performing well. Nevertheless, Pinnacles are being replaced and the costs for their replacement are being borne by Medicare, insurers or patients themselves.

If you or a loved one have had hip replacement surgery and have been implanted with a defective DePuy hip, you may be entitled to compensation for medical bills, pain and suffering, lost wages and other injuries. Our firm is currently investigating claims for those people who have been implanted with DePuy hip replacement devices, both ASR and Pinnacle. If you would like a free case evaluation, please contact Booth Samuels toll free at 1-866-515-8880 or at booths@pittmandutton.com.