DePuy ASR Settlement
Today in Los Angeles a jury awarded $8.3 million to a former prison guard who accused Johnson & Johnson’s DePuy Orthopedics subsidiary of knowingly marketing a faulty hip implant that it later recalled.
In the first of over 10,000 lawsuits filed against DePuy, jurors found that the now-recalled ASR implant had caused Loren Kransky, 65, to suffer from metal poisoning and other health problems after he underwent hip-replacement surgery in 2007.
Since DePuy introduced the ASR, almost 93,000 patients have received the implant. Roughly one-third of those recipients were in the United States. From the beginning there were complaints from patients and doctors about the device. The joint failed at an unacceptable rate and doctors discovered tissue damage caused by metal debris from the implant. Common complaints from patients with an ASR included pain- and joint-dislocations, infections and bone fractures. This led Johnson & Johnson to recall the device in 2010.
This suit came to trial first under a California statute that allows for cases involving plaintiffs with terminal diseases to be expedited. Kransky, a retired Montana prison guard, suffers from kidney cancer and other ailments. Jurors were able to see past these health problems and recognize the intense pain and suffering caused solely by the defective ASR joint. This sets a strong precedent as the other suits prepare to go forward.
In spite of the decisive verdict, Loire Gawreluk, a DePuy spokeswoman, said the company plans to appeal.
The trial’s evidence was overwhelming that DePuy had long known of problems with the ASR. Internal documents from DePuy showed that the company had concerns about the ASR joint long before 2010. It was aware of abnormally high failure rates with the device yet it continued to market it aggressively in the United States. Company head Andrew Ekdahl was told by consultants to DePuy as early as 2008 that the device was faulty and failing at alarming rates.
DePuy continues to deny it knew early on the device was defective. It claimed in the trial that ASR failure was entirely the result of surgeons implanting the device improperly.
The jury rebuked that argument completely and, despite the promise of an appeal, the verdict will set a starting price for other plaintiffs in settlement discussions.
Johnson & Johnson has set aside more than $3 billion to cover the ASR recall. Yet rather than settle the almost 11,000 law suits filed against it, the company intends to proceed on a case-by-case basis. This initial verdict in Los Angeles calls this strategy into question.
In closing arguments, Kransky’s attorney Michael Kelly said, “This is not an imperfect hip, this is a public health disaster. Somebody needs to tell them, ‘Build these things right. Don’t let this happen again.’ ”
While Johnson & Johnson continue to resist a settlement, analysts predicted that the decision will begin to make the company reconsider. Continued litigation will be onerous and expensive and the company will be forced to offer a national settlement under which thousands of hip plaintiffs would likely take what is offered rather than face years of litigation and appeals.
The ASR represents only a part of the biggest medical device failure in decades. Since its recall in 2010, the Smith & Nephew R3 and the Zimmer Durom Cup have also been recalled. The Stryker Rejuvenate was recalled in 2012 for metal contamination, but in that case the metal was leaching from the modular neck joint. Metal-on-metal joints still on the market such as the Biomet Magnum, the Encore and the Wright Profemur Converse, Dynasty, and Lineage are also failing at unacceptably high rates.
The verdict in favor of Loren Kransky vindicates the thousands who suffer as a result of having ASR implants. DePuy will continue to insist it acted appropriately. But this trial refutes executives’ claims. Instead the evidence showed a corporation that placed profits above the health of its patients, the welfare of the corporation above the people it served.
DePuy ASR Settlement