DePuy Settlement is Moving Forward
DePuy Orthopaedics, a medical device manufacturer unit owned by Johnson & Johnson, announced a few days prior to a June 1, 2014 deadline, that it will not exercise its option to walk away from a proposed $2.5 billion global settlement regarding DePuy ASR implants.
DePuy had the option to withdraw the settlement if a certain percentage of the victims did not elect to participate in the settlement. Unfortunately for DePuy, almost all eligible patients agreed to the rigid settlement conditions proposed by the giant hip implant manufacturer.
Settlements start at a base of $250,000
Factors considered in the settlement are age, number of revisions and extent of injuries. Many of the victims have experienced years of pain and medical treatment. The base rate barely covers liens and prior and future medical bills, but years of wrangling against the giant conglomerate, Johnson & Johnson, have worn down the patience and resources of victims.
The DePuy ASR was marketed as two versions – a hip resurfacing implant and a hip replacement prosthesis, but only the replacement prosthesis was approved for marketing in the U.S. Nearly 100,000 patients have received both devices globally.
Research in Australia and the U.K.
ABC Australia reported that DePuy began the global recall in 2010 when the failure rates reached alarming rates.
Dr. Anton Nargol, an orthopedic surgeon in England, was hired by Johnson & Johnson to be a consultant to audit implants in his patients. Dr. Nargol told an Australian television station show called The Walking Wounded that he had implanted the DePuy ASR in about 500 patients between 2004 and 2009. Thirty percent of the ASR resurfacing devices had failed as well as 60% of the ASR total hip implant devices.
Dr. Nargol later collaborated with Dr. David Langton, an orthopaedic registrar and researcher. Together, they measured the dimension of the implants and determined they did not meet specifications. They submitted the implants to DePuy but were told the implants were fine. Both professionals now testify on behalf of plaintiffs.
Dr. Nargol told ABC that one of the upper management at DePuy confided in him that the specifications of the implants that he and Langton submitted to them were too small. Furthermore, Dr. Langton measured failed devices removed from patients on a coordinate measuring machine, the same machine which is used by DePuy in its factories. He found that the company’s stated measurements of the head and cup were inconsistent with the actual measurements of the devices. He told ABC that between 20% and 40% of the tested devices were outside of the listed specifications and “…that the cup seems to be smaller than was actually intended.”
Findings made by Dr. Langton and other researchers suggest that the overall design of the ASR total hip implant prosthesis led to more metal debris being shed in patients than from any comparable metal-on-metal device, an allegation which DePuy strongly denies. Johnson & Johnson dismissed Dr. Nargol and Dr. Langton’s claims, stating that DePuy has a “robust quality control” and that Dr. Langton and Dr. Nargol are paid plaintiff witnesses.
Although many patients in the US may think the base settlement of $250,000 is too low, Australian patients have only been offered $33,000, though many have had their revisions and medical costs paid by DePuy.
Johnson & Johnson Denies Culpability
Johnson & Johnson continues to deny design flaws or defects of either ASR product and refuses to admit liability for any harm or injuries caused to patients by the device. Furthermore, DePuy continues to uphold that “…the evidence will show the company acted appropriately and responsibly.” However, the evidence currently mounting against them is forcing them to shell out a whopping $2.5 billion dollars in damages.
If J&J and other medical device manufacturers can not feel empathy for tens of thousands of patients after thousands and thousands of complaints and lawsuits, then perhaps one day they will come to understand that using the FDA’s Section 510(k) to cut corners and shave costs is more expensive to their bottom line in the long run. It won’t cripple them, like many of their patients, but it will hit them where it hurts.
Saunders & Walker, P.A.
If you would like to know more about the ASR hip recalls and settlements, give us a call at (800) 748-7115.