December 24, 2014 - The DePuy ASR Hip Settlement
In November, 2013, Johnson & Johnson agreed to a multi-billion dollar deal which would settle thousands of ASR lawsuits for those who have undergone revision surgery following implantation of a defective ASR hip device. In a separate agreement, Johnson & Johnson agreed to pay all medical costs related to ASR revision surgery; it is expected the final tab could reach between $3-4 billion dollars. The typical payment for patients who were forced to undergo revision surgery would be roughly $250,000, before legal fees. The Lawyers for the plaintiffs would receive about one-third of the overall payout. Some patients would receive less money due to a user’s fee imposed on the awards which adjusts the payout based on how long the patient had the ASR implant.
This settlement would affect roughly 8,000 of the 12,000 total claims against Johnson & Johnson and DePuy regarding the ASR hip implant. The remaining 4,000 patients would not receive any of this settlement money unless they undergo revision surgery prior to the completion of the plan. Prior to this agreement, a very large settlement in an ASR case potentially “set the stage” for those to come. In March, 2013, Loren Kransky, a 65-year old retired prison guard from Montana was awarded $8.3 million collars for the damages he suffered from a defective ASR hip implant. During this trial, attorneys for Johnson & Johnson alleged that Kransky’s prior health issues—including cancer, diabetes, kidney disease, vascular disease and a long history of smoking—were responsible for his health problems rather than the ASR implant.
At this point, DePuy officials continued to maintain that the ASR did not have a design flaw. Kransky’s attorneys stated DePuy was well aware of the design deficiencies long before Kransky’s implant surgery, but held little regard for patient safety. As proof of that, an internal DePuy document dated September 27, 2007, described the “massively increased wear,” that can occur when the “cup is oriented at a steep angle.”14 A May, 2008 e-mail from DePuy’s head of marketing, Paul Berman, stated “We will ultimately need a cup redesign, but the short-term action is to manage perceptions.”14
Paul Berman also authored an e-mail regarding DePuy sales representatives “telling surgeons DePuy is making an emergency change to the ASR cup. We must keep the ASR 2 project under total wrap, particularly in the U.S. where we will not make the change immediately…Lastly, I propose any future reference to ASR 2 is Project ALPHA.”14 Project ALPHA was reportedly a code name for the re-design of the ASR which would have made specific changes to increase the safety of the implant, yet these changes were never made, some believe for financial reasons alone. Reportedly, Kransky’s attorney even introduced an exhibit which showed that the ASR failed the testing standards set out by its own manufacturer.
DePuy News Following the Recall
The Johnson & Johnson “reach” extends to virtually every corner of the medical industry. Despite the “warm and fuzzy” feeling most of us associate with J & J, the recent rash of recalls and lawsuits is fast turning the company into a public relations nightmare. Over the past four years, J & J has recalled more than 30 of its products—including the ASR—and is under fire for refusing to recall the Pinnacle metal hip implant, despite the over 3000 lawsuits associated with the Pinnacle. Johnson & Johnson issued a recall on the Adept all-metal hip implant which was marketed overseas. Although the number of Adepts implanted is much smaller than the number of ASR’s (about 10,000 implants), the recall is yet one more blow against the huge corporation. In 2007, Johnson & Johnson agreed to pay over $80 million dollars in fines following an investigation which alleged that J & J had offered payoffs to surgeons to ensure their own brands of hip implants were used over other brands.
At this point, those who have been harmed by an ASR hip implant and have not yet had revision surgery should speak with a knowledgeable hip implant attorney in order to determine whether the statute of limitations has passed for them and what they need to do in order to receive a fair compensation for an implant they believed to be safe. Patients who received a faulty ASR implant and later fund out the statute of limitations in their state had run could feel despair regarding their health and future, however a highly experienced attorney may be able to argue the statute should not have begun to run until the patient received proper notification of the recall.
Depending on the circumstances of each specific patient, a knowledgeable attorney could also argue that no overt failure of the device was experienced until after the statute had run. Most states operate under a two-year statute of limitations although some have longer statutes and a few have statutes as short as a year. Those who have experienced no problems with their ASR should nevertheless have regular medical testing done; blood work to measure cobalt and chromium levels, x-rays and MRI’s to determine whether the implant is still working as it should.