Despite the fact that a replacement hip should last 15 years or more, if you received an ASR XL Acetabular System or an ASR Hip Resurfacing System, then there is a 1 in 8 chance that your new hip will need to be replaced within the first five years of implantation. This was the reason cited by DePuy Orthopaedics, which manufacturers the ASR hips, when it issued a worldwide recall of the devices in August 2010.

As you may already know, the recall means that, at the very least, you will need to undergo testing to determine whether your ASR hip is functioning properly. At worst, you will require a second painful, invasive surgery. You probably are also aware that filing a lawsuit against DePuy gives you the best possible chance of recovering compensation for any and all expenses related to your ASR hip. But what you may not know, and are probably eager to find out, is how much money you can hope to obtain from DePuy.

No simple answer

Unfortunately, there is no simple, accurate way to answer this question. The actual compensation you might be legally entitled to receive necessarily depends upon the specific, particular circumstances of your case, which can vary significantly from person to person.

By understanding how losses for which you might be compensated are characterized, however, you may be able to gain a bit of perspective on the potential value of your claim. In a product liability case (such as when a defective medical device has injured you), there are four types of damages (money award) you can potentially recover:  

  • 1.Compensatory damages: This is money to cover your actual medical bills, lost wages (if you had to take time off from your job), and any property damage (not usual with medical products) that occurred because of the defective product.
  • 2.Pain and suffering: You might receive additional money for the pain caused to you by your injury that was a result of the defective product.
  • 3.Loss of consortium: If your relationship with your spouse suffers, “loss of consortium” damages might compensate you for this circumstance.
  • 4.Punitive damages: These damages are meant specifically to punish a wrongdoer (such as a company that is not merely negligent but intentionally causes harm). Note that if a court does order a blameworthy party to pay punitive damages, some or all of the money might go to charities, legal aid funds, or other public organizations. Punitive damages are not intended to reward the victim.

Trial or settlement?

The amount of compensation you are able to recover also depends on whether your lawsuit goes to trial or, instead, DePuy and you are both willing to settle the matter out of court. Typically, if a defective product manufacturer believes that it is likely to lose at trial, it will offer you an amount of money in exchange for your agreement not to sue (or to discontinue any suit already started). As a lawsuit progresses toward trial and each side reconsiders the strengths and weaknesses of its case, settlement postures might change. (Settlement is essentially a compromise, and it has been said that the best compromise is one that makes both sides equally unhappy.)

Some manufacturers of defective products acknowledge their fault and are therefore more willing to settle with victims before any lawsuit is filed. Other manufacturers refuse to admit any wrongdoing and will pay monetary damages only if a court orders them to do so. If the manufacturer of a defective product that has caused you harm is unwilling to accept responsibility and offer you compensation, filing a lawsuit will often send a strong message that you are serious about holding the manufacturer responsible for its actions that hurt you or a loved one.

Published November 17, 2011 by