Opening arguments took place Jan. 25 in the trial of a lawsuit brought in California against Johnson & Johnson by a patient who received the company’s allegedly faulty “ASR” implant in hip replacement surgery.
The device at issue, called the Articular Surface Replacement (ASR), is a metal ball and socket, the parts of which can grind against each other and release metal into the body, which can be toxic and require revision surgery.
Focus on Internal Documents
J&J’s DePuy Orthopaedics division reportedly recalled the device in 2010, after British studies began showing a high failure rate. Around 30,000 patients in the United States have an ASR device. Thousands of them have brought lawsuits that have been consolidated against J&J and DePuy.
The suit in California – the first to go to trial – is led by plaintiff Loren Kransky, a retired prison guard who has cancer and is not expected to live much longer.
In his suit, Kransky is reportedly alleging failure to warn, negligent recall, and manufacturing defects. His 2007 hip replacement with the ASR had to be redone in 2012, and he says he was poisoned by chromium and cobalt released by the device.
Kransky’s lawyer, Michael Kelly, introduced documents during opening arguments that reportedly suggest that J&J execs knew there were serious problems with the ASR. They were aware that the device had a critical design flaw revealed in internal testing in 2007 and that doctors were complaining about the device failing, but the company hid that information, according to the New York Times.
Internal DePuy documents released as part of discovery showed that testing had revealed that the ASR would fail within only five years in 37 percent of patients, according to the New York Times.
Big Damages on the Line
Kelly reportedly charged in his opening statement that when DePuy execs found out about the possible defects, “They acted in a manner that was indifferent.”
But in his opening argument, a lawyer for DuPuy reportedly said the company “acted as an extremely responsible manufacturer.” The lawyer pointed to DePuy’s position that it had decided in 2009 to phase out the ASR model because of slow sales and not safety problems.
Kelly reportedly said he plans to ask the jury for punitive damages at the end of the trial “to send a message to the defendants who failed to share with doctors what they knew.”
J&J and DePuy have already settled some cases. Some of those plaintiffs had been asking for $20 million plus punitive damages, so there is likely a lot of money on the line for these companies.
J&J set aside $922 million in 2012 to deal with the DePuy ASR lawsuits, according to the company.