The worldwide recall of the ASR XL Acetabular System and the ASR Hip Resurfacing System made and sold by Johnson & Johnson subsidiary DePuy Orthopaedics has led to the filing of hundreds of lawsuits against the medical device manufacturer, and as more claimants come forward, the total number of hip replacement lawsuits against DePuy could rise into the thousands, or even tens of thousands.

The claims against DePuy all stem from the fact that the ASR hip devices have a five-year revision rate of approximately 12.5 percent. This means that 1 out of 8 patients who received one of the recalled hips will require a second hip replacement surgery after just five years. Replacement hips typically last fifteen years.

Victims can have substantial losses

Patients who require a revision surgery could incur considerable losses, including medical costs, lost wages, pain and suffering, and more. And even if revision surgery is not necessary, patients who received a DePuy hip will need to undergo testing to determine whether the units they received are functioning properly. (This testing is not free.) DePuy has stated that it intends to reimburse patients for costs related to the recall. Despite this promise, however, receiving full and fair compensation from the company may not be possible without a lawsuit.

Legal theories of liability

The lawsuits filed to date against DePuy allege, among other things, that the company failed to adequately research the ASR hips and failed to issue a recall in a timely manner. Both of these claims are based in the law of product liability, which, generally speaking, holds manufacturers, distributors, suppliers, retailers, and others along the “chain of distribution” of a consumer product liable for injuries that those products cause. (“Liable” in this sense means legally responsible).

There are three major types of product liability claims: manufacturing defect; design defect; and failure to warn (also called marketing defect). By claiming that DePuy failed to properly test and research the ASRs, claimants are invoking the design defect theory of product liability. The second charge, that DePuy failed to issue a recall when they knew about ASR deficiencies, is also supported by product liability laws. In this case, the legal justification comes from the failure to warn provision of product liability. There is considerable evidence that DePuy knew about the high revision rate associated with the ASR units for years but failed to issue a recall.

It follows logically that had patients known about the ASR defects, they either would have chosen another brand of implant, or would have become aware sooner of the source of their pain, weakness, and other side effects, and taken remedial action sooner. The actual claims in a lawsuit filed against DePuy vary from case to case, as does the amount of compensation a plaintiff can hope to recover.

Published November 17, 2011 by