Johnson & Johnson Reaches Deal on DePuy Hip Replacement Cases
Will It Stick?
Johnson & Johnson has agreed to pay almost $2.5 billion to settle about 8,000 lawsuits in which plaintiffs complained of serious problems caused by the company’s hip replacement devices. Other provisions of the agreement could push Johnson & Johnson’s pay-out to $3 billion or more.
The ASR XL Acetabular System and the ASR Hip Resurfacing System manufactured by DePuy Orthopaedics, a division of Johnson & Johnson, are the focus of the lawsuits. Plaintiffs in about 12,000 lawsuits against DePuy have experienced severe pain, loss of mobility, difficulty walking or rising and other problems that required surgery to remove, correct or replace the hip replacement devices.
The problem with the DePuy devices, as well as similar hip devices from some other manufacturers, is the metal-on-metal design. As the metal rubs against metal, metallic debris is released in the body, leading to metallosis (metal poisoning) and many subsequent serious problems.
A six-member panel of plaintiffs’ lawyers negotiated the agreement. If it goes through, it will be one the largest settlements ever in the U.S. for claims related to a medical device.
However, the agreement becomes binding only if a minimum of 94% of eligible plaintiffs accept the offer to settle their lawsuits. There is no class action against DePuy and Johnson & Johnson; each lawsuit is an individual legal action, and it is up to each individual plaintiff to accept the settlement or continue in court with the hope of receiving a larger award from a jury. If settlements fall below the 94% level, Johnson & Johnson could choose to back out of the deal.
The total averages about $250,000 per patient. That is an average; many plaintiffs would receive less. The amount each plaintiff receives will be based on numerous factors: how many revision surgeries were necessary, the extent of one’s adverse effects, how long patients were in the hospital, how long a patient had the device before experiencing problems, the patient’s age, has the plaintiff been a smoker or overweight, etc.
Based on the track record this year, it is hard to predict how future juries will react to claims against DePuy. The first DePuy lawsuit to go to trial, in California Superior Court in March, resulted in an $8.3 million award. However, in the second DePuy trial, in Cook County Circuit Court, Chicago, in April, the jury ruled in favor of DePuy and did not order an award. Since then, two federal cases have been settled for undisclosed amounts.
The agreement announced this week does not cover about 4,000 of the approximately 12,000 lawsuits against DePuy pending in federal and state courts. In those lawsuits, plaintiffs have not yet received revision surgery but contend that such surgery may become necessary. Those claims will be handled in separate negotiations.
The agreement also does not prevent new lawsuits from being filed by people who experience adverse effects from a DePuy hip replacement device in the future. Such plaintiffs could attempt to participate in the settlement or could press their case before a jury.
A hip replacement device is normally expected to last 15-20 years without problems. In an internal 2011 DePuy memo, the company estimated that the ASR device fails within five years in 40% of patients.
It is a bad month for Johnson & Johnson. Earlier this month, the company agreed to pay $2.2 billion to resolve complaints about how the company marketed Risperdal and other pharmaceuticals. Risperdal is an antipsychotic drug used to treat schizophrenia.
If you or a loved one has received a DePuy hip replacement device and have experienced serious problems, it is important to act quickly to participate in the settlement agreement or to pursue one’s claim before a jury.
If you or a loved one have received a hip replacement device by one of the following manufacturers —
- Wright Medical Technology’s Conserve Plus, Profemur Z
- Zimmer’s Metasul Durom Cup
- Biomet’s M2A Magnum
- Smith & Nephew’s R3 Acetabular System —
and have experienced serious problems, it is also important to consult an attorney soon. The agreement with Johnson & Johnson may set the stage for how lawsuits against those will be handled.
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