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Canadian Attorney Files DePuy Class Action

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Toronto, OntarioIn early December 2010, Colin Stevenson of Stevensons LLP, a Canadian law firm based in Toronto, filed a products liability class-action lawsuit against Johnson & Johnson and its DePuy Orthopaedics subsidiary. Mr. Stevenson discusses the Canadian Depuy lawsuit with LawyersandSettlements.

Q: (LawyersandSettlements) This Canadian class action claims that Johnson & Johnson and DePuy Orthopaedics, the manufacturer of DePuy Hip Implants, made a faulty device. Is your class-action lawsuit any different than the US lawsuits?

A: (Colin Stevenson) We filed a claim against DePuy and J&J with a similar approach to that taken in the US, but one of the big differences in Canada is that we have an additional product recalled. The US recall was limited to the DePuy ASR XL Acetabular System, and in Canada, the DePuy ASR Hip Resurfacing System has also been recalled.

As well, unlike the US, we are able to pursue this DePuy claim as a class action because the Courts in Canada accept that this is fair and just in pharmaceutical and medical product cases. One other issue, however, is that damages in Canada don't tend to be so dramatic—we don't tend to have punitive damages, and the damages for pain and suffering are capped by the Supreme Court of Canada. Ultimately, however, we are able to protect the interests of all Canadian residents, although we do want any Canadians with these implants to e-mail us.

Q: (LAS) At what stage is the Canadian class action?

A: (Colin Stevenson) We have commenced an action in Toronto and are currently pursuing certification status. Once the class becomes certified, it will become a national class action.

Q: (LAS) What does certification mean?

A: (Colin Stevenson) Before an action can become a class action, the court must approve the case as a class action. Certification is the first step. At the certification hearing, the court looks at whether the case raises common issues, and at whether there are alternative and better avenues for handling the plaintiff's claim. If the court decides that a class action is not the preferable procedure, the plaintiff will only be allowed to bring a claim as an individual lawsuit.

Q: (LAS) What are the chances of getting a Canadian class action certified?

A: (Colin Stevenson) Provincial laws in Canada allow class actions and, as of 2011, all the provinces, with the exception of P.E.I., have enacted comprehensive class-actions legislation.

Canadian courts have repeatedly certified product liability class actions because they have consistently found that certification is the best way to promote access to justice, judicial economy and behaviour modification for such claims.

Mr. Justice Winkler, judicial manager for class actions in the Toronto region, has written (based on the Ontario Law Reform Commission, 1982 Report on Class Actions):

"Product liability cases could be expensive for plaintiffs. Although each claim might be small, they often devolved into battles between experts. The high cost of marshalling this evidence and the lengthy trials which ensued meant that few plaintiffs could afford to pursue such cases to trial...Class proceedings legislation provided a solution to these problems by enabling plaintiffs to bring their claims as a group...In short, product liability cases were the quintessential model for the type of case class proceedings legislation was designed to remediate."

Q: (LAS) What are the advantages of a class action rather than separate lawsuits?

A: (Colin Stevenson) The advantage is that we have a relatively liberal class-action regime that allows a class of people to pursue this matter without having to pursue numerous individual lawsuits.

The biggest advantage for Canadians participating in the class action is that they don't have to incur the cost of individual claims, nor the time and effort—and cost—which are undertaken by us to pursue it on their own behalf. They can rely on the work done by the representative plaintiffs and the class-action counsel in pursuing the matter on behalf of everyone involved.

As well, class actions are one of the best ways for individuals to work together for the collective good, and we value our role as lawyers for this group.

Be sure to register with our law firm to ensure that the court and defendants are aware of the extent of harm suffered by individuals across the country.

Q: (LAS) What should someone do if they have had a Depuy hip implant, or even suspect it is DePuy?

A: (Colin Stevenson) First, contact your orthopaedic surgeon to determine whether you received a DePuy ASR hip implant. If you don't know who performed your hip replacement surgery, ask your primary care physician or the hospital where the surgery took place.

Next, if you (or anyone you know) had either of these implants [the DePuy ASR XL Acetabular System and the DePuy ASR Hip Resurfacing System], you ought to register with our firm because these implants have been recalled.

If the defective device is taken out, DePuy is trying to get the part sent to them. Instead, Canadian lawyers advise you to keep the removed implant; we will store it and have it tested by our expert. As well, our lawyers can deal with the surgeon to ensure that will happen.

Q: (LAS) What are the DePuy Hip Implant Adverse Events?

A: (Colin Stevenson) Patients who reported DePuy hip problems in the first five years and had revision surgery reported a variety of symptoms, including pain, swelling and problems walking. Other symptoms that may indicate a serious problem with your hip replacement parts include:

- Loosening—when the implant does not stay attached to the bone in the correct position
- Fracture—where the bone around the implant may have broken
- Dislocation—where the two parts of the implant that move against each other are no longer aligned
- Metal debris—where metal particles from the component parts moving together spread around the hip area

Q: (LAS) If a patient has a DePuy hip replacement and hasn't experienced any DePuy hip side effects, is there still a potential for permanent damage?

A: (Colin Stevenson) Even if you don't have any symptoms, there is a serious medical question about the long-term impact of these metal-on-metal implants and the effects of what the doctors call "metallosis."

Metallosis is believed to occur in DePuy hip patients due to high levels of cobalt and cadmium in the blood as a result of the wear and tear in these joints. A faulty hip cup can cause "edge-loading," which means that the joint's ball rubs against the cup's edge, chiseling off debris. Because the ASR's constituent metals include cobalt and cadmium, tests of some patients have shown elevated levels of cobalt and chromium ions in their blood.

The people who don't have significant pain or physical problems at this time still need monitoring, especially to determine blood levels of these heavy metals. People who are in pain may need the device explanted. If the part is taken out, DePuy is trying to get the part sent to them. We want the victims to keep the removed implant. We will store it and have it tested by our expert.

If the victim contacts us, we will deal with the surgeon to ensure that happens.

Q: (LAS) Are all orthopedic surgeons and physicians in Canada aware of the DePuy recall?

A: (Colin Stevenson) We think most orthopedic surgeons ought to be aware of the recall because Depuy has written to them all. The manufacturer has to rely on surgeons to contact the victims. Most patients do not know about a recall until they have received a letter from their surgeon.

Q: (LAS) Who and how many Canadians may be at risk?

A: (Colin Stevenson) In addition to the representative plaintiffs, we have been contacted by numerous potential class members from across Canada, but we need everyone to call us so that total damages can be more readily calculated.

At this time, our best estimate is about 4,000 Canadians affected by a faulty DePuy implant, but that number is subject to review once we see the documents. (Health Canada will be monitoring the Canada DePuy recall.) Although only a handful of incidents were reported to Health Canada regarding the devices from patients or their doctors about the early failure of the device, most people don't complain to Health Canada, so this indicates that the problem is much larger—the first implants go back to 2003. These medical devices were marketed to younger patients, especially women. They were designed to provide a greater range of mobility, to last longer and to be smaller.

Q: (LAS) Who is going to pay for another surgery?

A: (Colin Stevenson) We have been retained by OHIP and other provincial health insurers to protect their interests. This means that the medical cost for the insurers will be recovered as well as the compensation for individual victims.

Q: (LAS) Does your firm have much experience with product liability cases and class actions?

A: (Colin Stevenson) Yes. We have just settled the Zyprexa pharmaceutical class action that resulted in about $30 million class-action settlement across Canada, which was approved in early 2010. We were also lead counsel on the Maple Leaf Foods Listeria case. And we are part of the Canadian counsel team in the Vioxx litigation.

Q: (LAS) How much will it cost for legal representation in a class action?

A: (Colin Stevenson) Our firm handles cases on a contingent fee basis. If there is no recovery, there is no fee.

Another major advantage of class actions over individual lawsuits is the reduced risk and cost for the class members. In individual lawsuits, each individual is responsible for their own lawyer's costs. With class actions, you have the option to retain a law firm for a contingency fee basis. That is, lawyers representing the class will only be paid if the case is won or settled, and those legal fees will be paid only from the money that the defendants are ordered to pay. Also, the fee to be paid must first be approved by a judge. That way, the judge will ensure that the fees paid are fair and reasonable and based on the difficulty of the case, the amount of work done, as well as on level of risk involved.

(As well, in an individual lawsuit, a person could be ordered to pay some of the other side's legal costs if some of the procedural steps or the case is lost. In a class action, class members,excluding the representative plaintiff, cannot be made to pay the other side's legal costs—regardless of the outcome.)

Q: (LAS) How can I join a DePuy Class Action Lawsuit?

A: (Colin Stevenson) Depuy ASR hip replacement patients may be eligible for compensation due to the injuries they have suffered as a result of being implanted with the defective device. Past and future pain, suffering, medical bills, lost earnings and disfigurement are among the damages that the patients may be entitled to recover.

Once a case is certified as a class action, all members of the class who have not previously settled their claim will automatically be included in the class action. Following, a certification notice will be sent out to members of the class. This allows class members the opportunity to opt out of the class action if they choose to do so.

Should you wish to participate in the Depuy Class Action, you need to make sure that we have a current mailing address for you, so that we can keep you informed of important developments in the case. It would also be helpful if you could provide us with information about your health, which will help us learn about your case and better understand how Depuy implants may have affected you and other Canadians.

Q: (LAS) Can I also file an individual lawsuit against DePuy?

A: (Colin Stevenson) Yes. A class member can choose not to participate in a class action by opting out. If you decide to opt out, you will not be bound by any settlement or judgment in the class action. Keep in mind that you will also not be entitled to any payment from a settlement or judgment that is reached. Anyone who opts out is entitled to bring an individual action or otherwise try to reach their own settlement with the defendant(s).

Q: (LAS) How long will a DePuy class action take?

A: (Colin Stevenson) Many class actions also settle, usually before the case proceeds to trial. On the other hand, many defendants have fought long and hard to avoid liability. A number of cases have gone on for years and years, and still have not been resolved. It is difficult to predict how long a particular case will last, particularly up against a determined defendant. We must be patient, and determined, in order to succeed and see justice prevail.

Q: (LAS) How will members be notified regarding a settlement?

A: (Colin Stevenson) The court will order a notification program. We always want to ensure that as many people are notified as possible so everyone who is harmed by defective products can be properly paid.

READ ABOUT DEPUY HIP REPLACEMENT LAWSUITS

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READER COMMENTS

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I have suffered for years with this DePuy hip replacement, have had two removed and I still have pain as a result of the replacements being faulty. How long is this settlement going to take I have been waiting since 2009. There is no question DePuy is at fault, people will be dead before they get anything from the the suffering they have endured.why do these move so slowly, it could drive people crazy waiting and waiting with no information as to the end of this. It is a case of prifits before people. My whole family has suffered, they have a Mother who is suffering and can't enjoy time with them. Does anyone care?

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