• Wednesday, December 08th, 2010

If you watch television or read the newspapers, you know that practically every personal injury lawyer in the U.S. has been fishing for potential clients to sue DePuy over its recalled ASR XL Acetabular hip replacement system. The product was recalled in August 2010.

Numerous lawsuits have been filed throughout various jurisdictions throughout the U.S. The recall affects 93,000 people, including 37,000 in the U.S.

Lawsuit Consolidation

Those lawsuits are now being consolidated in the federal court in the Northern District of Ohio by order of the Judicial Panel on Multidistrict Litigation. The panel indicated that at least seven different lawsuits over the recalled systems are currently pending in six different states. Each of the cases being transferred come from different federal court districts, including two from different districts in Alabama, and one from California, Kentucky, Illinois, Mississippi and Utah.

U.S. District Judge David A. Katz in Toledo will supervise evidence-gathering efforts in the cases. “Such consolidation will serve the convenience of the parties and witnesses and promote the just and efficient conduct of the litigation,” said a panel statement. Bloomberg News reports that about 150 federal lawsuits are pending.

A DePuy spokeswoman said that DePuy recalled both the ASR XL Acetabular System, a total hip-replacement product approved by the FDA in August 2005, and the DePuy ASR Hip Resurfacing System, which wasn’t used in the U.S.

Shades of Sulzer

Some trial lawyers are comparing this suit to the 2001 Sulzer AG agreement where the company paid $1 billion to settle product liability suites involving defective hip and knee replacements by its former Sulzer Medica unit. They believe this litigation has the makings to be significantly larger because Sulzer was a relatively small company with little to no product liability insurance.

In addition, in the Sulzer litigation there were no allegations of toxic injury from the implants. In this case, there are allegations of toxic exposure to chromium and cobalt, both of which can have serious adverse health effects. Thus, the damages here may include revision surgery to get the metal-on-metal implant out, systemic hypersensitivity to the metal load in the body (requiring use of non-metal replacement devices), bone loss around the implant, metal shavings in the tissues causing necrosis of the tissue, cobalt poisoning, non-malignant tumors, and increased risk of cancer.

“DePuy looks forward to working with Judge Katz and counsel for plaintiffs to address the issues raised by this litigation,” said the DePuy spokesperson in an e-mail to Bloomberg News. “DePuy remains committed to covering reasonable and customary costs of testing and treatment for patients who need services, including revision surgery if it is necessary, associated with the ASR recall.”

While the pretrial management of the cases in a consolidation are often managed similar to how a class action lawsuit would be handled, each claim will still remain an individual lawsuit.

If a settlement agreement is not reached following pretrial proceedings and any bellwether jury trials, each of the consolidated cases would be remanded back to the jurisdiction where they were originally filed for trial.

Source: ryortho

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One Response

  1. 1
    Lauran Siordia 

    Thank you for sharing.

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