On July 8, 2011, The Wall Street Journal weighed in on the status of the DePuy ASR mass tort litigation.  Noting that there are about 1,000 lawsuits currently pending in federal and state courts nationwide against Johnson & Johnson and its subsidiary, DePuy Orthopeadics, the WSJ compared the DePuy ASR litigation to a wave of recent highly-publicized mass torts such as out-of-control Toyotas, the BP PLC’s oil spill, asbestos exposure, and Merck’s painkiller Vioxx—all of which resulted in immense large-scale litigation.  Further, the WSJ estimated that Johnson & Johnson stands to lose over $1 billion if the company is found liable in the ASR lawsuits for manufacturing defective medical devices and the resulting injuries sustained by victims.

Additionally, the article chronicled events leading up to the current status of the litigation, and included a synopsis of the positions that parties on both sides are taking.  Plaintiffs in the ASR lawsuits allege that DePuy knew that the metal-on-metal hip joints were defective, yet failed to recall them from the market in a timely fashion.  DePuy denies that the company had any indication that the products were defective prior to the recall; DePuy also denies plaintiffs’ allegations that the metal-on-metal devices conclusively cause chromium and cobalt poisoning.

According to the WSJ, the outcome of these lawsuits may turn on when DePuy actually knew the ASR hip replacements were defective.  If DePuy had a prolonged period of knowledge that the ASR implants were defectively designed and failed to act, the amount of damages plaintiffs may recover could be affected.  Plaintiffs contend that an Australian medical device registry first logged complaints and put DePuy on notice of the products’ flaws in 2007.  However, DePuy did not recall the ASR devices until last August.

Moreover, the article also addressed the developing controversy surrounding the Pinnacle implant, another DePuy metal-on-metal device, which has not been recalled.  Defending the product, a DePuy spokeswoman stated that it is “one of the most widely used and clinically successful” devices on the market . . . and it is “safe and effective.”  However, an increasing number of lawsuits are currently being filed alleging that its similar design to the ASR implant is causing similar problems.

As the DePuy ASR litigation continues to unfold, especially once the estimated 18 million pages of documents defendants are expected to produce are reviewed, one thing is certain—the stakes on both sides are high.

Published July 11, 2011 by