Although punitive damages were not awarded, the jury found $8.3 million in damages for the plaintiff against Johnson & Johnson, the manufacturer of the DePuy ASR. “This trial was a pivotal moment and a victory for the plaintiffs because, up until this point, DePuy was denying liability,” says Dr. Malik. “This verdict has shown that a jury of our peers believes that J&J and DePuy, its subsidiary, is negligent.”
When Johnson & Johnson recalled their ASR models more than two years ago, they reported a 12 percent failure rate within five years. Their internal documents and subsequent research revealed a much higher percentage, approaching 50 percent. “The jury understood the medicine and issues in litigation and therefore found against J&J,” adds Dr. Malik. Now a second trial is underway in Chicago and more than 10,000 DePuy victims are all hopeful for another positive plaintiff win.
“Interestingly, no punitive damages were awarded in the California trial because it didn’t find gross negligence on behalf of J&J and DePuy,” explains Dr. Malik. “We, as plaintiff lawyers, firmly believe that this pharmaceutical and medical device giant acted with gross negligence when its DePuy hip replacement was put on the market, and that they knew - or should have known - that the metal on metal hip was defective and failed to do adequate testing prior to its release in the marketplace.”
We are finding out now that in the early 2000’s there was a rush by medical device manufacturers to release their metal-on-metal devices through the fast-tracked 510 K process, which meant their products didn’t have to go through rigorous testing (PMA or Pre Market Approval) as long as the device was similar to ones already on the market, and therein lies the problem. “Whoever got to the marketplace first got the lions share,” says Dr. Malik, “only to find that the metal-on-metal implants turned out to be a fiasco: patients wound up with early failure of the hip replacement and many of them faced revision surgeries.”
Future DePuy Litigation
Next up, the federal court will have its own DePuy hip bellwether trials scheduled. Dr. Malik says these current trials are “one-off individual state court actions,” and once the federal cases start, J&J will have to make some tough decisions.
“There has been a selection of federal cases for the bellwether trials,” adds Dr. Malik. “These ‘mini trials’ are designed to go to trial for several plaintiffs, and if many plaintiffs win, it will pave the way for a global settlement. The settlement may happen earlier if there is a finding by the jury in Federal or State Court actions of gross negligence. Then there will be punitive damages.
READ MORE DEPUY HIP REPLACEMENT LEGAL NEWS
“The first federal trial will start May 6, 2013, and the second trial is set for July 8th. So the pressure is on J&J and DePuy to do the right thing, to settle these cases and get the compensation our clients need. Ultimately, they will make that business decision.
J&J has made several billion dollars on their hips over the last ten years in profits, so a settlement of $4-5 billion would be a drop in the ocean for them and they will simply carry on business as usual.”