The Depuy litigation saga is finally up and running.The plaintiff in the first trial brought against Johnson & Johnson has won $8.3 million in damages from the company following a 2010 recall of 93,000 defective all-metal hip implants manufactured by its orthopaedics subsidiary DePuy. However, the company will not have to pay punitive damages after it was ruled that the company had not been deceptive or malevolent.
DePuy, unhappy with the claim that the ASR devices had design flaws will appeal the decision. The company faces 10,000 lawsuits in the US alone and there are thousands of litigation claims yet to confront Johnson & Johnson outside the US as well. The Depuy recall could end up costing J & J millions in damages. The plaintiff received $338,000 to cover medical expenses and $8 million to compensate pain and suffering.
Depuy ASR – the failure rates
The Depuy ASR metal on metal hip was initially marketed outside the US in 2003 as a resurfacing device however a full hip replacement was later manufactured and sold worldwide as well. Both models had very high failure rates and patients experienced enormous discomfort and even permanent damage as a result of the metal parts of the joint striking each other sending metal fragments into the blood and surrounding tissue.
It should be noted that the DePuy was not the only manufacturer of all-metal implants to suffer high failure rates. Stryker, and the Smith & Nephew [with their own Birmingham hip], are two of the other manufacturers to be facing litigation following high failure rates of their own hip implant devices. Indeed, surgeons have largely switched back to traditional hip implants. Nevertheless, the ASR devices had significantly higher failure rates than other underperforming products.
J & J executives have tried to claim that the 2010 recall of the ASR devices demonstrated how responsibly the company had acted – however these claims were undermined by much of the evidence that emerged during the trial. A document from within DePuy showed that there were already fears that 2 in 5 patients may require follow up surgeries to remove the ASR devices within 5 years. By contrast, traditional metal-and-plastic implants have around a 5% failure rate and tend to last 15 or more years.
It also became evident that Depuy company executives were aware that the ASR devices had design flaws. However, the advice of a number of independent surgeons appears to have been completely ignored and a proposed redesign was shelved because it was considered too expensive.
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