The federal judge overseeing thousands of DePuy ASR hip recall lawsuits has remanded one complaint back to state court, after rejecting DePuy Orthopaedics’ argument that an in-state distributor also named as a defendant had been fraudulently joined to defeat the federal court’s diversity jurisdiction.

The lawsuit, which names four DePuy ASR hip recipients as plaintiffs, was filed in January 2011, in Illinois state court, Champaign County. In addition to DePuy Orthopaedics Inc., DePuy Inc., and Johnson & Johnson Inc., an Illinois distributor, Premier Orthopaedic Sales Inc., was named as a defendant. The DePuy defendants had the complaint moved to Illinois federal court, asserting Premier was fraudulently joined. In doing so, they cited the Illinois Distributor Statute, which does not allow most product liability claims to go forward against a distributor unless it can be show that the distributor exercised significant control over design or manufacture, or provided warnings, or knew of or created the alleged defect.

The case was ultimately transferred to the DePuy ASR hip implant multidistrict litigation in U.S. District Court, Northern District of Ohio, where thousands of other DePuy ASR hip recall lawsuits are currently pending. The plaintiffs then moved to have the lawsuit remanded back to Illinois state court.

In his Opinion granting the remand, U.S. District Judge David Katz agreed with plaintiffs’ argument that Premier was not protected by the Distributor Statute because it was aware of the high revision rates reported by patients implanted with the DePuy ASR hip implant. Among other things, he noted that an Illinois appellate court has held that a plaintiff must show that the presumptively dismissed defendant “had actual knowledge of the unreasonably dangerous nature of the physical characteristics/design of the product, not just actual knowledge that the physical characteristics/design existed.”

DePuy ASR hip implants were named in a worldwide recall in August 2010, after data indicated they had a higher than acceptable rate of premature failure. The DePuy ASR hip recall involved DePuy Orthopaedics’ ASR XL Acetabular and ASR Hip Resurfacing hip devices, some 93,000 of which were sold worldwide.

The DePuy ASR hip devices are metal-on-metal hip implants, a class of implants that has come under great scrutiny in recent years. A growing body of research has indicated that all-metal implants can shed dangerous amounts of metal ions into tissue surrounding the implant. In addition to premature failure, this phenomenon can result in a soft-tissue reaction called metallosis, tissue death, and the formation of pseudo tumors and effusions (pockets of fluid) in the area of the joint. Some research has also indicated that the accumulation of toxic metal ions in the bloodstream may affect other organ systems, including the heart and kidneys, in the long-term.

In addition to the thousands of lawsuits pending against the ASR hip implant, DePuy Orthopaedics and Johnson & Johnson are also named in thousands of complaints involving a metal-on-metal version of the DePuy Pinnacle hip implant system. Most of those complaints are pending in a federal multidistrict litigation in U.S. District Court, Northern District of Texas.

Other metal-on-metal hip implants are also the subject of litigation, including:

  • Wright Profemur and Conserve hip implants
  • Biomet Magnum hip replacement
  • Stryker Rejuvenate and ABG II hip stems
Published November 29, 2012 by