As First DePuy ASR Bellwether Case Goes to Trial, Judge Rules Manufacturer Can Exclude Recall Evidence
A federal judge ruled in July that Johnson & Johnson subsidiary DePuy can exclude evidence related to their all-metal hip replacement device recall in the first bellwether trial against theDePuy ASR hip replacement device.
The orthopedics division pulled the DePuy ASR device in 2010, blaming the recall on bad sales figures. However, it later came to light that a huge number of personal injury complaints against the all-metal hip device had come in, both to J&J and to the FDA, and that the defect complaints might have spurred the device recall.
The DePuy ASR litigation has been consolidated in a federal court in Northern Ohio, the honorable Judge David Katz presiding. The first bellwether trial in the multidistrict litigation (MDL) is Ann McCracken v. DePuy Orthopaedics, and will start in September.
In July, Judge Katz ruled on several pre-trial motions, including allowing Johnson & Johnson and DePuy to exclude recall information as evidence of manufacturing defect in the DePuy ASR devices. Plaintiff McCracken also argued that the recall shouldn’t count as a “subsequent remedial measure,” following her hip replacement surgery using a DePuy ASR LX model.
Katz agreed to the plaintiff’s filing, on the grounds that McCracken is likely to assert her claim as having begun at the time of her hip replacement surgery in 2009. Court records show she had a revision surgery in 2011.
“Her injury began with the initial implantation and, but for that event, she would not have suffered injury, including the revision surgery,” Katz wrote. “Assuming the plaintiff will claim her harm commenced before the recall, in this instance, the recall is a subsequent remedial measure which, if it had occurred prior to the implantation, would have prevented the harm. As such, the recall is inadmissible.”
Katz also ruled that the manufacturer can use evidence from the FDA granting the DePuy ASR clearance under the questionable 501(K) rules.
“The court is persuaded that Defendants are entitled to present evidence of the 510(k) clearance as it represents the process by which the device came to be on the market and is, therefore, relevant,” he wrote. “Despite plaintiff’s protestations, the probative value outweighs the danger of unfair prejudice or jury confusion and this evidence will also be subject to a special jury instruction. Therefore, plaintiff’s motion to exclude evidence of 510(k) clearance is denied.”
Katz also ruled that DePuy can exclude evidence that they paid expert witnesses in prior trials, but must divulge information if they pay expert witnesses in this particular trial.
The first California bellwether trial against DePuy Orthopedics ended in favor of the plaintiff, Loren Kransky, at the end of February 2013. The jury awarded $8.3 million to the plaintiff for pain and suffering related to a defectively-manufactured device. In May of this year, the judge rejected DePuy’s request for a new trial.
The Strom Law Firm Can Help with DePuy ASR and Pinnacle Metal Hip Replacement Injury Lawsuits
The metal hip replacement devices manufactured by DePuy are dangerous. The FDA said: “It is known that over time, the metal particles around some implants can cause damage to bone and/or tissue surrounding the implant and joint.” In addition, the FDA adds that there are a “small number of patients in which high levels of metal ions in the bloodstream may have caused other types of symptoms or illnesses elsewhere in the body, including effects on the heart, nervous system, and thyroid gland.”
If you or a loved one has received a metal hip replacement device, specifically from DePuy Orthopedics, and have since suffered painful side effects, you may be entitled to compensation. The attorneys at the Strom Law Firm can help. We offer free, confidential consultations to discuss the facts of your case, so do not hesitate to contact us. 803.252.4800.