DePuy Verdict Upheld
On Friday, California Judge J. Stephen Czuleger rejected DePuy Orthopedics request for a new trial, maintaining the March jury decision that found that the company’s metal-on-metal implants were defectively designed.
The judge’s decision upholds an $8.3 million award to Loren Kransky, a 65-year-old former prison guard who claimed he suffered serious health problems after an ASR system failed and metal debris spread through his body. Kransky claimed DePuy and its parent company Johnson & Johnson were responsible for injuries caused by the defective, and eventually recalled, A.S.R. hip implant.
Kransky’s was the first complaint to go to trial among the high-profile lawsuits over the implants. Johnson & Johnson announced shortly after the original trial that it would attempt to reverse the decision. The company is facing thousands of lawsuits worldwide over the defective A.S.R. joint, with the outcome of this suit closely watched. and losing this appeal could set a strong precedent for upcoming trials.
In his decision Judge Czuleger denied any attempts to appeal the ruling on the grounds that the plaintiff had failed to provid enough evidence to establish that the products were defective in design.
In the Los Angeles trial, despite overwhelming evidence to the contrary, DePuy denied that it knew the device was defective. The company maintained that failure of the A.S.R. was entirely the result of surgeons implanting the device improperly.
The A.S.R. 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.
At the original trial in Los Angeles internal company documents were revealed that showed DePuy had long known of problems with the A.S.R. It was aware of abnormally high failure rates with the device yet it continued to market it aggressively in the United States even after company head Andrew Ekdahl was told by consultants that the device was faulty and failing at alarming rates.
The jury rebuked that argument entirely, and by upholding the verdict, Judge Czuleger sends a strong message to DePuy that try as it may to deny responsibility, it will ultimately have to answer to the victims of one of the greatest medical device failures in history.

It should come as no surprise that the first crisis facing Pope Francis involves a sex abuse scandal.
Roberto Octavio González Nieves, the outspoken Archbishop of San Juan, Puerto Rico, has been accused by Vatican emissaries of allegedly protecting pedophile priests.
This past December, Cardinal Marc Ouellet, Prefect of the Congregation for Bishops at the Vatican, asked Archbishop Gonzalez Nieves to leave his post and move elsewhere within the Church. Since then the Vatican has made numerous more requests for the Archbishop to step down, all of which he has refused.
The U.S. territory’s most senior Catholic has said there is no reason for him to resign, despite being asked to do so by the Vatican. “Injustice, persecution, defamation, distortion of the facts and an unfair process cannot be reasons to resign,” he said in a letter to the Cardinal Ouellet in February.
The matter is important because the Vatican has long been criticized by victims of sexually abusive priests for having failed to punish bishops who shielded abusive priests, moving them from parish to parish rather than reporting them to police. If the Vatican is trying to persuade Gonzalez Nieves to resign for having done just that, it would mark a significant development.
There continue to be cases worldwide of pedophile priests being sheltered by the Catholic Church hierarchy. Many of the Cardinals who voted in Pope Francis at the conclave in March have been involved in scandals and accused of cover-ups.
The church continues to insist it will do everything it can to protect children from pedophile priests. But recent scandals in Los Angeles, Milwaukee, New Jersey, Boston and Puerto Rico seem to suggest the church is still more concerned with protecting its brand than helping the victims of sexual abuse.
In Puerto Rico alone, Saunders & Walker has filed a number of federal lawsuits against various bishops for allowing and covering up sex abuse of children.
Archbishop González Nieves remains defiant and the Vatican has yet to indicate if it will forcibly remove him if he continues to resist resigning on his own. It is worth noting that the archbishop has sought the council of Cardinal Bernard Law, who resigned in disgrace as archbishop of Boston in 2002 when the clerical sex abuse scandal exploded in the U.S. Rather than being punished for covering up for the pedophiles on his staff, however, Law was given the plum job as archpriest of one of the Vatican’s major basilicas in Rome.
Perhaps in the wake of being accused of protecting pedophile priests Archbishop González Nieves sees the opportunity for a promotion.
It seems to be the way the Catholic Church works.

Teacher Sex Abuse Molestation
As more accusers came forward, a former yeshiva teacher in Lakewood New Jersey abruptly changed pleas Monday in the middle of his trial, admitting he had sexually abused a boy he met while working as a camp counselor.
Rabbi Yosef Kolko pleaded guilty to aggravated sexual assault, sexual assault and child endangerment. The abuse occurred from August 2008 to February 2009. It ranged from fondling to oral sex and stopped when the boy told his father, who confronted Kolko.
The change in plea came several days after the the prosecutor’s office was contacted by two other victims who also accused Kolko of sexual assault, Senior Assistant Prosecutor Laura Pierro said.
The case may be a watershed for the prosecutor’s office and the Orthodox Jewish community in Lakewood, which has in the past been reluctant to bring criminal matters to civil authorities, preferring instead to handle them through rabbinical courts and senior rabbis.
The father of the victim had originally taken the matter to rabbinical court. In the Orthodox community it is considered heretical, if not blasphemous, to take legal matters outside the community. But after a few months, he was unsatisfied with how the case was being handled and that Kolko was still teaching.
It was only after the father found out that Kolko was going to be allowed to teach at a summer sleepover camp that he approached the Lakewood prosecutor’s office.
As a result, the family was ostracized by the Orthodox Jewish community. The Asbury Park Press reported that a flier was circulated within a large Lakewood Orthodox Jewish community, saying the boy’s father had made a mockery of the Torah and committed a “terrible deed” by taking the case to state prosecutors.
Pierro, the prosecutor, claims that the father made a “historic step” in the Orthodox community by taking the accusations to her office but admits that, “there certainly are members of the community who remain outspoken against what the father did on behalf of his son.”
The conviction may be historic in the Orthodox community, but it remains a painful reminder that the scourge of child sex abuse – and the inexcusable failure of adults to do all they can to protect the victims – is not limited to the Catholic Church.
Penn State tolerated Jerry Sandusky raping children because it was more scared of the damage that might be done to the school’s reputation. Orthodox leaders were reluctant to take action against Kolko out of fear of embarrassing the community.
In every case of suspected child abuse, it is imperative that the facts be reported to the authorities and prosecutors be allowed to investigate. The Catholic Church, Penn State, and Orthodox leaders in Lakewood all failed this test. Because of that justice was delayed and more children were put at risk because predators were allowed to remain free.
It is rare that an adult driven to abuse children will stop at one victim. It continues until someone puts a stop to it.
In the end, it is not about religion or football. It is about the sexual abuse of children. That should never be tolerated, under any circumstance.
Sex Abuse Attorney

The Rev. Michael Fugee works with youth groups, attends youth retreats, and hears the confessions of minors.
The Rev. Michael Fugee is a self-confessed pedophile.
It has recently been revealed that Fugee has openly worked with children for the past several years through an unofficial association with a Monmouth County church — St. Mary’s Parish in Colts Neck, N.J. He did so with the approval of New Jersey’s highest-ranking Catholic official, Newark Archbishop John J. Myers.
In 2001, Fugee confessed to twice fondling the genitals of a 14-year-old boy during wrestling matches. At the time, the priest served as assistant pastor at the Church of St. Elizabeth in Wyckoff.
Two years later, he was convicted by a jury and sentenced to five years’ probation. In 2006, an appellate panel vacated the verdict, ruling that a portion of the confession — in which Fugee described himself as bisexual or homosexual — should have been withheld from jurors because they might have drawn “an unfounded association between homosexuality and pedophilia.” The rest of the confession stood.
To avoid a retrial, Fugee entered a rehabilitation program, underwent counseling for sex offenders and signed a binding agreement that would dictate the remainder of his life as a Roman Catholic priest. The agreement with the Bergen County Prosecutor’s office stipulated that would have no affiliation with youth groups, would not attend youth retreats, and was barred from hearing the confessions of minors.
In recent years, Fugee has repeatedly violated that agreement with the Bergen County Prosecutor’s office – with the blessing of Archbishop Myers.
It is a pattern that has become all too familiar in the Catholic Church. When a sexual predator is identified within the church, the reaction is to deny or dismiss the charges and quietly transfer the guilty priest. Little, if any, consideration is ever given to the victims. Quite often the pedophile priests are given new assignments and parishioners there are never informed of the priest’s past.
The archdiocese of New Jersey continued to assign Fugee without disclosing his history. He held positions as Chaplain of St. Michael’s Medical Center, as co-director of the Office of Continuing Education and Ongoing Formation of Priests, and lived at Church of the Sacred Heart in Rochelle Park parish. In each instance he was removed only after his past had been revealed to parishioners in the press.
At St. Mary’s, where Fugee has had an unofficial association for several years, he was originally invited to participate by the church’s youth ministers, who were longtime friends. The church’s pastor, the Rev. Thomas Triggs, was aware of Fugee’s past but chose not share that information with other parishioners.
Since his involvement with St. Mary’s was revealed by the press there has been a public outcry. Parishioners of the church are outraged they were never informed of Fugee’s past and victims groups are flabbergasted he was allowed to keep working with children.
The response from the church has been, sadly, predictable. In a feat of verbal gymnastics, Archbishop Myers defended his decision to allow Fugee to continue working in the archdiocese without informing parishioners of his past. In a letter to other priests in the parish this past February, Myers wrote that in his interpretation of the case, “no sexual abuse had occurred,” and that had guided him to allow Fugee to return to the ministry.
In spite of Fugee’s confession to having groped a teenager, in spite of Fugee’s agreement with the Bergen County prosecutors office to never to work with children again, Archbishop Myers chose to allow this pedophile priest to keep working.
What should be noted is that Archbishop Myers helped draft the 2002 Dallas Charter, which required disclosure of allegations of sexual abuse of minors by Catholic clergy.
What also should be noted is that in his February letter, Archbishop Myers never mentioned the two teenage boys whom Rev. Michael Fugee admitted having molested.

The long awaited first jury trial in the DePuy ASR hip implant federal multidistrict litigation was set to begin on June 3, 2013. Judge Katz moved the trial to September 2013. Judge Katz is the federal judge in charge of the vast majority of DePuy ASR cases which are in the federal court system. Lawyers for the injured patients argued for a shorter postponement of only a few weeks but the judge thought that due to the number of unsettled legal issues and the fact that the next open trial date on his calendar was not until September that the trial would be moved to September.
In August it will be three years since the DePuy ASR hip implant recall and DePuy has yet to make any fair offers to settle these cases. I believe that at this point only repeated jury trial will force this company to the table to settle these cases. They cannot try 11,000 lawsuits so they have to institute a settlement program at some point.
So far, there have been two jury trials in the state courts of California and Illinois. The first verdict was in California for 8.3 million dollars and the second jury verdict in Chicago was zero for the plaintiffs.
Saunders and Walker and other law firms around the country are continuing to fight for victims of this greedy company and we hope that justice will prevail sometime soon in the future.

Two years ago the Supreme Court unknowingly created a two-tiered system for the liability faced by drug makers. In Pliva v. Mensing, the court severely limited the conditions under which consumers of generic drugs could sue the manufacturers.
The court ruled that since makers of generic drugs did not have control over the content of warning labels, they could not be held liable for failing to alert patients to the risks of taking their drugs.
Now, the Supreme Court is set to decide a number of cases that challenge that earlier ruling.
At issue is a group of three consolidated cases brought by women who took the generic equivalent of Reglan for stomach ailments and developed a serious neurological disorder. Appeals courts ruled against the drug makers, saying that the federal regulatory regime did not block claims under state law.
If the makers of generics can’t be held liable, who can? The position of the generics is one in which they would be immune from liability for selling a product with inadequate warnings — even though the name-brand company selling the same drug with the same warnings would be liable.
That position would leave the women who were harmed by the generic version of Reglan with no recourse.
In another similar case heard by the court recently, Bartlett v. Mutual Pharmaceutical Company, defendant Karen Bartlett developed a rare but severe reaction to the anti-inflammatory drug Sulindac after a doctor prescribed it to treat shoulder pain in 2004.
Sulindac, similar to Ibuprofen, is in a class of drugs known as nonsteroidal anti-inflammatory drugs — or Nsaids — which are in widespread use and was approved by the FDA in 1978. Within weeks of taking the generic version of Sulindac, Bartlett developed toxic epidermal necrolysis, a severe form of a related condition called Stevens-Johnson Syndrome. The reaction permanently damaged her lungs and esophagus and rendered her legally blind.
Bartlett sued Mutual Pharmaceutical Company, which made the generic drug she took, arguing that the drug’s design was dangerous and defective. A jury in the Federal District Court in Concord, N.H., awarded her $21 million. An appeals court upheld the verdict.
Now Mutual Pharmaceutical Company has appealed the case to the U.S. Supreme Court, maintaining it can’t be held liable since it had no control over the drug’s warning label or design.
If the court agrees with Mutual and rules that generic companies cannot be sued for defective products, what recourse will patients have who were injured by a generic drug? Then the question becomes can a generic manufacturer be held liable for anything?
It is worth noting that currently 70 percent of prescriptions in the U.S. are being filled with generic drugs and of that number, a third of generics have no brand-name competitors.
If the Supreme Court rules in favor of the makers of generic drug in these cases, who will remain liable if the drugs harm patients?
Karen Bartlett is desperate to know the answer to that question.

A jury in Chicago rejected claims this week that the DePuy orthopedics unit of Johnson & Johnson inappropriately marketed an artificial hip, which the company recalled in 2010.
This comes in direct contrast to the $8.3 million dollar verdict awarded last month against DePuy in Los Angeles District Court which found that the company had knowingly marketed a faulty hip implant that it later recalled.
This verdict came in the second trial of over 10,000 pending lawsuits involving the all-metal device, which was known as the Articular Surface Replacement or A.S.R. This was part of a once-popular class of metal-on-metal hip implants developed almost a decade ago. It was an attempt to improve on traditional joints that were made of metal and plastic. But shortly after the release of the A.S.R., complaints started coming from patients and doctors about implant failure and tissue and bone damage caused by metallic debris. Patients typically cite pain and say they are immobilized by joint dislocations, infections and bone fractures.
The evidence presented against DePuy in both trials was remarkably similar and centered on the fact that the company continued to market the device even after they learned the joint was defective. In both trials internal DePuy documents were introduced that showed beyond a doubt that company officials knew that the design of the A.S.R. was flawed long before they recalled the device and even considered redesigning the implant. The documents also showed that they never shared that information with doctors and patients
It remains unclear why the juries returned such differing verdicts, but in both trials the evidence against DePuy was staggering.
In the Chicago trial the jury was concerned whether the plaintiff’s need for a revision surgery was because of the defect in the product or for some other reason. Apparently, the injured plaintiff in this case continued to have pain and problems even after the DePuy ASR was removed. The DePuy attorneys had argued that the plaintiff had a metal sensitivity to any metal in her body and that her problem would have occurred no matter what type of metal implant she had.
In my experience as a trial lawyer, juries frequently demand stronger evidence than the law requires before they will award millions of dollars in a case. In cases where they have questions about the strength of the evidence they render a defense verdict.
I believe that the evidence is very strong that the DePuy ASR is a defective and dangerous product and that is why it was recalled. The verdict in Chicago certainly did not affirm that the DePuy ASR is a good product. Rather the verdict hinged on the causation of the plaintiff’s pain, not whether the product was defective or not.
The company’s strategy in both trials has so far been one of denial. In his opening statement in Chicago, DePuy attorney Richard Sarver stated, “We absolutely didn’t say the product is a defective product.” To say the recall “is an admission of a defect, it is absolutely absurd.”
Yet in both trials internal documents were introduced that showed consulting surgeons had warned officials at DePuy the implant was faulty and that, by 2008, they knew the cup needed to be redesigned. Even more telling was that DePuy’s own internal estimates that indicated the joint was projected to fail within five years in about 40 percent of the patients. That represents a failure rate eight times higher than most orthopedic implants
DePuy president Andrew Ekdahl downplayed the internal findings and testified that the device was withdrawn, not because it was defective, but simply because “it didn’t meet clinical expectations.”
Yet in the interim between the two trials a study was released by the American Academy of Orthopedic Surgeons, AAOS, which puts the current revision rate of patients with ASR implants at a staggering 40 percent. This number was eerily similar to the 40 percent failure rate DePuy arrived at internally. While the company can continue to attempt to discount its own findings, the study by AAOS is harder to counter.
There are numbers of other jury trials scheduled this year and each case has variations and differences, if DePuy continues with its defense strategy I believe in the end most of the verdicts will be against them. DePuy executives knowingly marketed a defective product and yet they insisted — right up to a moment the device was recalled — that it was safe.
The ASR is one of the worst hip implants ever put on the market and for that reason there is no need to be discouraged by an early defense verdict. With thousands of trials remaining, it will be the job of trial lawyers to fight for the rights of injured consumers and protect them from major corporations like DePuy. The rights of patients, not profits, should always be paramount.
The DePuy A.S.R. is part of the biggest medical device failures in decades and it was the first to be recalled in 2010. Since then the Smith & Nephew R3 and the Zimmer Durom Cup have also been recalled. The Stryker Rejuvenate was recalled in 2012 for metal contamination as well 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.

One of the primary reasons for hip replacement is to allow patients to restore the quality of life they had before their hips became a problem. The ability to regain lost mobility and go back to work and exercise are at the top of patients’ list of reasons why they had hip-replacement surgery.
But there is one important quality of life issue that’s almost never mentioned when considering a hip-replacement . . . sex.
In a recent article in the New York Times, (“Surprise Path to Better Sex: Hip Surgery,” April 8, 2013), Tara Parker-Pope writes of how many patients had given up sexual activities because of pain and loss of motion in their joints. But after joint replacement, pain was greatly decreased and motion improved. Most patients reported being able to enjoy pain-free sex again.
In the past decade, the number of hip-replacement surgeries has risen by 85 percent. In 2010 alone, there were over 300,000 hip-replacement surgeries performed. In active middle-age adults, 45-65, the number of hip-replacement surgeries tripled, accounting for 128,000 of that total. In terms of quality of life, a healthy sex life is important, especially in this demographic.
“It’s certainly a topic that is on everyone’s mind, but it’s not a topic that is always spoken about openly,” says Dr. Charles Cornell, clinical director of orthopedic surgery at the Hospital for Special Surgery in New York. Many patients are still hesitant to talk about how joint pain has affected their sex lives.
But it’s beginning to change. Dr. Claudette Lajam, an orthopedic surgeon at New York University Langone Medical Center, said that so many patients have questions about intimacy after joint replacement that she added a page to her Web site devoted to sex. “That page gets the most hits of any page on my Web site,” Lajam says.
Another sign the issue of sex and joint replacement is growing in the public consciousness is when celebrities openly discuss the problem. In a recent interview, the actress and fitness guru Jane Fonda spoke openly of what her hip-replacement meant, “…I’m happier, the sex is better and I understand life better. I don’t want to be young again.”
Along with improving sex lives, hip-replacements can also help improve relationships. When a member of a partnership becomes disabled, it challenges that partnership. The early failure of a hip implant causes significant suffering on the part of both partners in an intimate relationship.
The lawsuits that our firm is filing against hip implant manufacturers DePuy, Stryker, Zimmer, Biomet, Wright Medical and Smith & Nephew all include consortium claims for spouses for the suffering sustained by them and the damage to the sex life of both partners.
A legal consortium claim is much more than just loss of sexual activity it includes all the types of suffering and changes in lifestyle of both partners as a result of a hip implant recall and surgery to replace the defective hip implant. Consortium compensation can include lost companionship, anguish and worry for their partner and for their relationship.
At a jury trial in most states the jury is charged with coming up with a separate figure to compensate the non-physically injured partner for their losses in this category. The recent New York Times article and other public discussion about the sex issue should help jurors hearing lawsuits involving hip implants have a better understanding of what these implant patients and their partners have been going through. This in turn may help increase jury verdict wards for loss of consortium claims in hip implant lawsuits.

Pope Francis I Catholic Church Sexual Abuse
Cardinal Jose Maria Bergoglio of Argentina has been elected by the College of Cardinals as the next pope. It was announced from the balcony of St. Peter’s Basilica Wednesday evening. He will take the name of Francis and is the 266th pontiff of the Catholic Church.
Bergolio’s selection came at the end of the first full day of the conclave and was sealed on only the fifth ballot. It would indicate that the College of Cardinals was in agreement but came as a surprise to many outsiders. Going into the conclave Bergoglio wasn’t considered to be one of the favorites, in spite of being the rumored as the runner-up in the 2005 conclave that elected Pope Benedict.
Formally the Bishop of Buenos Aires, Bergoglio will be the first non-European pope and seen as a nod to the growing significance of the church in the global south. In 2001 Archbishop Bergolio was elevated to Cardinal by Pope John Paul II, and began serving as an administrator of the Roman Curia – the administrative apparatus of the entire Catholic Church – which operates out of the Vatican.
The new pope inherits a Catholic Church mired in turmoil, much of it made worse by his predecessor pope Benedict. One of the first things Pope Francis must face is a sexual abuse crisis that has undermined the church’s moral authority around the globe.
As the College of Cardinals convened there were charges being brought against pedophile priests on every continent the Catholic Church operates. While the Vatican continues to downplay the crisis, new allegations emerge almost daily. Even during the conclave Cardinal Keith O’Brien, the archbishop of Scotland, was forced to resign amidst allegations of improper sexual relations going back 30 years.
On the same day Pope Francis was named, Cardinal Roger Mahoney of Los Angeles was receiving fresh attention for his role in the cover-up of sexual abuse by priests. The Archdiocese of Los Angeles agreed to pay a total of nearly $10 million to settle four child sex abuse cases brought against them. There is stark evidence that while he was bishop there, Mahoney helped a confessed pedophile priest evade law enforcement by sending him out of state to a church-run treatment center, then placing the priest back in the Los Angeles ministry.
Surveys of American Catholics reveal that they see sex abuse as the biggest problem facing the Catholic Church. Under Benedict the Church’s handling of the sex abuse scandals was cloaked in secrecy, and the impact was disastrous. In Europe, South America, and in the United States thousands of young men and women were victimized, and millions of dollars have been paid in settlements. This great tragedy is far from over.
As Cardinal, Bergoglio gave only three interviews, as Pope Francis he will be forced into the public spotlight. Until now the church’s reaction to the scandal has been entirely reactionary and relied on downplaying accusations or by using religion to bludgeon critics.
It is a pivotal moment for the church. The new pope must speak publically about the issue if he is serious about changing the church and putting an end to this epidemic of sexual abuse. Remaining dedicated to the Church’s current conservative principles will ignore the suffering of the victims and only allow this horrible tragedy to continue.

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.