Not Guilty! DePuy wins its 2nd ASR metal-on-metal hip product liability case
DePuy Orthopaedics, Inc. announced on April 16, 2013 that a jury in Cook County Illinois returned a verdict in favor of the company in a product liability lawsuit over the company’s ASR metal-on-metal hip system.
It’s the second jury to reach a decision. On March 8, 2013 the first jury in Los Angeles awarded $8.3 million to the plaintiff in compensatory damages because they found the design was defective. That jury did not award any punitive damages because the company was cleared of charges of selling the device when it allegedly knew the device would not function properly.
The price of settling the remaining 10,000 plus pending cases against the company has now been driven down. The company had reportedly offered $200,000 per case to settle. That offer was rejected by plaintiff’s counsel.
Lorie Gawreluk, DePuy’s spokeswoman, said the company’s actions concerning the product, “were appropriate and responsible, including the program to address patients’ medical costs related to the recall.”
Within days of the recalling the device in 2010, the company set up a help line for patients in dozens of countries. According to the company statement, the line has served “tens of thousands of callers.” The company also created a worldwide reimbursement program for ASR patients that, so far, has resulted in thousands of payments to patients for testing and treatment and other out-of-pocket expenses. DePuy also set up a process to provide information to surgeons and to work with surgeons so that they could get information to their patients.
“DePuy is committed to improving patients’ lives, and the company regrets that the ASR Hip System did not perform as expected for some patients. Since the recall, DePuy has worked to provide patients and surgeons with the information and support they need,” added Gawreluk. “Joint replacement surgery is one of the greatest medical advances of our time, and we remain dedicated to serving patients who need this important treatment.”
The Jury Speaks
Bloomberg News reported on April 16 that the jury of seven women and five men deliberated for slightly more than a day after a five week trial.
Early on the day of the verdict, jurors reportedly sent a note to the judge asking if they must be unanimous in their verdict. According to Bloomberg, four jurors wanted to side with the plaintiff, forewoman Ameenah Muhammad- Williams said outside the courtroom after the trial was over.
“There was a majority that was for DePuy and a minority that was for the plaintiff,” said Muhammad-Williams. “Their case was not strong enough for all 12 of us to agree.”
A point of contention with plaintiffs has been the question of what did the company know about the performance of the 93,000 ASR hips that have been sold and when did they know it.
In reporting the not guilty verdict, the New York Times couldn’t resist stating that internal DePuy documents introduced at the trials “indicated that company officials knew that the design of the ASR was flawed long before they recalled the device and even considered redesigning the implant. They never shared that information with doctors and patients, those documents show.”
Juries that have listened to months of testimony and evidence seem to have rejected that narrative.
The company says in its April 16 statement that in 2010, it received new information from the National Joint Registry of England and Wales reporting that some ASR patients were undergoing a second hip replacement surgery sooner than expected. “After receiving this information, the company acted quickly by voluntarily recalling the product in every country where it was sold. Before then, the totality of the data available to the company showed ASR was performing consistent with the class of monoblock metal-on-metal hip implants.”
There is no sugar-coating that this has been a professional and personal disaster for many individuals at DePuy, and most importantly for patients continuing to suffer from failures of their implants. The search for better procedures and implants has been littered with failed outcomes before finding success. Just ask Sir Charles Charnley, FRS. But the search for villains narrowed with this latest jury verdict as DePuy promises to continue to try and make things right for the patients.