Two months ago on March 8, 2013, California jurors awarded Loren Kransky a settlement in the amount of $8.3 million dollars for the injuries he sustained from a DePuy ASR hip implant device. The ASR all-metal implant was recalled by DePuy in August, 2010, following reports from a number of patients who suffered premature device implant failure as well as symptoms of metallosis.
Over 90,000 ASR devices were implanted across the globe prior to the recall, and while the all-metal design was intended to be more durable, lasting as long as fifteen years, it is estimated that at least one out of every eight ASR patients was forced to undergo revision surgery within five years of implantation. The jurors in the Kransky case found the ASR design to be flawed, causing metal toxicity and other health problems for Kransky. The jury did reject claims that DePuy and its parent company, Johnson & Johnson, acted with malice or failed to warn consumers of potential risks so no punitive damages were awarded.
On April 17, 2013, DePuy Orthopedics filed a motion to overturn Kransky’s multi-million dollar judgment, stating the jury’s findings regarding the alleged design defects and failure to warn lacked consistency. DePuy believes the verdict warrants judgment notwithstanding the verdict or an entirely new trial. DePuy contends the jury’s findings that the ASR did have design defects, but there was no failure to warn by DePuy are clearly incompatible with one another.
The Court instructed the jury that they could find the ASR to be defectively designed only if the design was dangerous beyond what was expected by the plaintiff’s surgeon. Further, they could find a failure to warn only if DePuy clearly failed to warn surgeons of dangers which were not easily recognizable. Therefore, if DePuy clearly warned Mr. Kransky’s physicians of any ASR dangers which would not be recognizable, then how could the ASR design have been found dangerous beyond that expected by the physician?
To further complicate the matter, the jury in an ASR case in Chicago—the second ASR case to go to trial—returned a verdict of $0. In the Chicago case as in the Kransky case DePuy’s lawyers claimed prior medical issues. The plaintiff in the Chicago case suffered from Crohn’s Disease and had a litany of immunity issues, therefore DePuy claimed she had a much higher sensitivity—essentially that an abnormal body responded negatively to a normal amount of implant wear. In the Kransky case the attorneys similarly pointed to his health issues including diabetes, cancer, kidney disease, vascular disease and a history of smoking. DePuy claimed these health issues were to blame for the failure of the ASR rather than a defective design however the jury rejected those claims.
DePuy had promised an appeal following the Kransky verdict, stating they believed the ASR to be properly designed and citing the fact that the jury was not allowed to hear testimony regarding FDA approval of the ASR. With over 11,000 more trials to be heard, plaintiffs are likely anxious regarding DePuy’s motion to have the Kransky verdict vacated.