This past weekend marked the 2nd anniversary of the August 26, 2010, DePuy ASR hip implant recall. The date could become significant if lawyers for Johnson & Johnson and its DePuy Orthopaedic’s unit attempt to argue that the statute of limitations for filing DePuy ASR hip replacement lawsuits began tolling the day the recall was issued.
Many states have placed two year statutes of limitations on medical device lawsuits. According to a report from Mass Device.com, if judges in those states ruled that the 2-year window started on the day the DePuy ASR hip implant recall was announced, patients who have yet to file their claims would be barred from doing so.
The good news is that DePuy has not yet attempted to make that argument, and no court has ruled on the issue so far.
DePuy Orthopaedics recalled its ASR Hip Resurfacing System and ASR Acetabular System after data from the National Joint Registry of England and Wales showed that 1 out of every 8 patients (12%-13%) who had received the devices had to undergo revision surgery within five years. A total of 93,000 implants were sold worldwide, including 37,000 in the U.S.
The first DePuy ASR hip implant lawsuit was actually filed a few months before the recall was issued, in June 2010, by a Florida woman, according to Mass Device. That suit was followed by three California lawsuits just days later. Since, then the DePuy ASR hip replacement device has been named in some 8,000 product liability claims, with more lawsuits being filed nearly every day. The complaints allege the metal-on-metal hip replacements can shed dangerous amounts of chromium and cobalt into patients’ bloodstreams, leading to a number of serious health problems, including pain, swelling, and dislocation, as well as metallosis, a reaction that results in tissue and bone loss, the formation of pseudotumors, and long-term heart, kidney, nerve and thyroid problems.
Around 6,000 claims have been consolidated in a federal multidistrict litigation before the Honorable Judge David Katz in U.S. District Court, Northern District of Ohio. The first bellwether trials in that litigation are scheduled to start on May 6, 2013 and July 8, 2013.
Another 2,000 complaints are pending in various state courts around the country. Earlier this month, DePuy and Johnson & Johnson agreed to settle three Nevada state claims for a total of $600,000. An expert interviewed by Bloomberg News asserted that the settlements were at the low end of what plaintiffs could expect, and speculated that most settlements will range from $200,000 to $500,000 per plaintiff.
Johnson & Johnson disclosed in January that it had set aside $800 million to cover legal issues associated with the DePuy ASR hip implant. However, many legal observers believe that the company could end up paying as much as $2 billion to resolve the lawsuits.