Despite the fact that the co-inventor of the DePuy ASR testified during the second ASR trial that he would not use the ASR and that the benefits do not outweigh the risks a Chicago jury recently ruled in favor of Johnson & Johnson and DePuy. Thomas P. Schmalzried, testified that he had revised 15 out of 66 implants—a 23% failure and what Schmalzried termed an “unacceptable failure rate.” Even so, jurors felt the case of Carol Strum, a 54-year old nurse, was simply not strong enough to warrant a settlement. Strum received an ASR hip replacement in 2008—that implant failed just three years later leaving her with painful tissue damage and the need for complex and potentially dangerous revision surgery.
DePuy’s attorneys claimed Strum’s hypersensitivity and other health issues caused her revision rather than the recalled ASR device. Even though DePuy lawyers used the same tactic in the first ASR case—attempting to lay blame for the revision on the plaintiff—Loren Kransky was awarded $8.3 million dollars from a jury who found the design of the ASR to be defective. The jury in the Kransky trail deliberated for five days before finding in favor of the plaintiff, however the Krum jury deliberated only one day. Kransky’s implant failed after only four years, leaving him with tissue and bone damaged by metal debris as well as symptoms of metal poisoning.
Finding the ASR hip implant device to be defective, jurors awarded Kransky $338,000 for medical expenses and $8 million for pain and suffering. There were no punitive damages awarded to Kransky as the jury found that there was no failure to warn about the ASR risks on the part of DePuy. On April 17th, Johnson & Johnson and DePuy filed a motion to vacate the verdict in the Kransky case due to the fact the companies feel the jury’s finding of a defective product yet finding there was no failure to warn are incompatible.
With such disparate outcomes between the two cases, it is difficult to predict the future of the nearly 11,000 cases left to try. District Judge David Katz is presiding over more than 7,000 federal ASR lawsuits which have been consolidated into an MDL in the U.S. District Court for the Northern District of Ohio. More than 2,000 are scheduled for California state court and 500 are in the state court in Illinois with the remainder scattered in state courts around the U.S.
There are several bellwether trials planned to determine the likelihood of DePuy settling the outstanding cases as well as the potential value of future awards. The first of these bellwether trials will be heard on June 3, 2013. The ASR litigation is dissimilar from the Pinnacle litigation in terms of the mechanism of failure. The ASR is a new design which implements a very “sunken” spherical cup design—the shallowest cup ever marketed—and creates rim load therefore excessive wear on the edge of the cup where the ball and cup rub together.
Bloomberg reported that J & J recalled the ASR implants after over 90,000 were sold, stating 12 percent of the implants failed within five years. Australian data, however, showed a 44% failure within seven years. During the Strum trial evidence was presented of blackened hip and muscle tissue as well as elevated levels of cobalt and chromium in the bloodstream which makes it hard to understand the jury’s decision. Denman Heard, an attorney for Carol Strum called the ASR hip implant the “biggest public catastrophe of any hip implant ever put on the market.”