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DePuy Seeks Alternate Court for ASR Hip Implant Lawsuit Consolidation

Oct 5, 2010 | Parker Waichman LLP

Johnson & Johnson unit DePuy Orthopaedics is fighting efforts to consolidate DePuy ASR hip implant lawsuits in the U.S. District Court for the District of New Jersey before Judge Susan D. Wigenton. DePuy is opposing the selection of Judge Wigenton because she is already overseeing consolidated lawsuits involving the Zimmer Durom Cup hip implant.

Johnson & Johnson announced the recall of the DePuy ASR Hip Implant system in August, after data from the National Joint Registry of England and Wales showed that 1 out of every 8 patients (12%-13%) who had received the recalled devices had to undergo revision surgery within five years of receiving it. The recall involved the ASR XL Acetabular System, a hip socket used in traditional hip replacement, and the ASR Hip Resurfacing System, a partial hip replacement that involves placing a metal cap on the ball of the femur. Only the ASR XL Acetabular System was approved for use in the US. About 93,000 people around the world received one of the recalled implants.

While the recall was only issued in August, DePuy had been receiving reports for several years regarding early failures of the implant. According to a report on the Independent, a UK media outlet, the Australian Joint Registry – the second largest database in the world after the England and Wales National Joint Registry – issued seven reports to DePuy starting in 2007 that identified problems with the hip implant system. The ASR system was finally withdrawn from the Australian market in December 2009.

DePuy was already phasing out the ASR hip implant system when it finally acknowledged in March 2010 that the device was prone to early failure. By that time, the US Food & Drug Administration (FDA) had received hundreds of reports describing premature failure of the DePuy ASR hip implant system. Still, it would be months before the DePuy ASR hip implant system was finally recalled.

Since the DePuy ASR hip implant recall was announced, victims of this defective device have been filing lawsuits alleging that the company failed to adequately test the hip implant and failed to immediately issue a recall when it became apparent that users were experiencing a higher-than-expected failure rate. In September, plaintiffs’ attorneys motioned the US Judicial Panel on Multidistrict Litigation to consolidate all such federal cases in a multidistrict litigation before Judge Susan D. Wigenton.

A multidistrict litigation would allow all DePuy ASR hip implant lawsuits to be coordinated under one judge for pretrial litigation to avoid duplicative discovery, inconsistent rulings and to conserve the resources of the parties, witnesses and the court. When lawsuits are consolidated as a multidistrict litigation, each retains its own identity. If the MDL process does not resolve the cases, they are transferred back to the court where they originated for trial.

While DePuy isn’t opposed to the consolidation, it is opposed to Judge Wigenton’s selection. In its response to the multidistrict litigation panel, DePuy’s lawyers argued that Judge Wigenton’s selection would be inappropriate because the Zimmer Durom Cup litigation involves similar allegations and could cause confusion and unintended prejudice to all parties. The response seeks to have the DePuy ASR hip implant lawsuits consolidated in either the Northern District of Indiana at South Bend or the Northern District of Ohio at Toledo; both of which are near DePuy’s Warsaw, Indiana, headquarters.

Some plaintiffs in DePuy ASR hip implant lawsuits are also seeking to have the litigation consolidated in a different court, including the Central District of California and the Northern District of Illinois.

The Judicial Panel on Multidistrict Litigation is expected to hear oral arguments on the matter on November 18, when it convenes at Duke University in South Carolina.

The Judicial Panel on Multidistrict Litigation was created in 1968. Since then, it has consolidated hundreds of thousands of lawsuits that involved high numbers of plaintiffs, including litigation over asbestos, breast implants and other matters.


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