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DePuy CEO Alex Gorsky Asked to Testify in ASR Hip Implant Lawsuits

Sep 14, 2012 | Parker Waichman LLP

Those who’ve filed lawsuits against DePuy Orthopaedics in one state court over its defective and recalled ASR and ASR XL metal-on-metal hip implants want the company’s new chief executive to take the stand in any future trials.

According to a report, CEO Alex Gorsky has been asked to testify as part of a lawsuit filed in Delaware that includes lead Plaintiff Moria Jackson and several others. Gorsky’s company is accused of hiding data that showed its ASR line of metal-on-metal hip implants was defective but continued marketing them as safe and a better alternative to traditional joint replacements. 

DePuy ordered a recall on the ASR hip implants in August 2010 after finally admitting that the devices failed early, in less than five years, at an extremely high rate of 10 to 12 percent. Close to 100,000 people worldwide received the defective implant during a total hip replacement surgery prior to the recall.

 Like those in the Delaware state lawsuit, recipients of these devices were told that its revolutionary metal-on-metal design would cause less complications in the future, last longer, and require less revision and replacement surgeries over the lifespan of the device and the recipient. Further, the all-metal design, the company said, meant that the hip implant was ideal for people younger than the traditional hip replacement candidate.

 The Plaintiffs in the Delaware case realize that Gorsky played a key role in initially getting the ASR line of implants onto the market and keeping them there for several years before too many people began experiencing serious complications. Prior to his assuming the CEO role at DePuy Orthopaedics, Gorsky served as head of Johnson & Johnson’s medical device division. DePuy is a division of Johnson & Johnson.

 Though the company admits that as many as 12 percent of its devices are prone to early failure, other studies have found failure rates close to three-times as high.

 The report cites court documents explaining why Gorsky has been called to testify in the Delaware lawsuits: “Gorsky directly oversaw J&J subsidiaries (and co-defendants) DePuy Orthopedics Inc. and DePuy International Ltd., and was directly involved in decision-making concerning the DePuy ASR device at the center of this suit. As a result of Mr. Gorsky's apparent role in decision-making on the testing, study, complaint-investigation, continued sale, and subsequent recall of the DePuy ASR device, he has relevant knowledge regarding the subject matter of this litigation, the discovery of which is reasonably calculated to lead to the discovery of admissible evidence.”

 Earlier this week, plaintiffs in the federal Multidistrict Litigation filed in an Ohio courtroom called for eight former and current executives with DePuy to testify as part of that ongoing lawsuit. DePuy equated the request to have Gorsky testify in Delaware to a “fishing expedition.”

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