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J&J Profit Pursuit Led to Defective Hip, Lawyer Argues
By Maurice Possley & David Voreacos – Mar 1, 2013 12:17 PM ET
Johnson & Johnson (JNJ)’s pursuit of profit led it to sell a defective metal-on-metal hip that failed faster than any similar device, a lawyer argued at the first of 10,750 lawsuits over the recalled implant to go to trial.
Jurors in Los Angeles heard closing arguments today on claims by Loren Kranksy, 65, that J&J’s DePuy unit defectively designed its ASR hip and failed to warn of the risks. Kransky attorney Brian Panish asked for compensatory damages of $5.3 million and punitive damages of as much as $179 million.
J&J, the world’s largest seller of health-care products, failed patients before recalling 93,000 ASR hips in August 2010, Panish said. At the time, J&J’s DePuy unit said 12 percent failed within in five years, requiring follow-up revision surgeries. The Australian rate hit 44 percent in 2012, he said.
“That design was defective from the first day they put it out,” Panish argued to the state court jury at a trial that began Jan. 25. “It was beyond what any hip had ever done to anyone in the history of the world. It’s not even close.”
J&J, based in New Brunswick, New Jersey, denies that it defectively designed the device or failed to warn of the risks associated with it. Analysts say resolving the lawsuits could cost the company billions of dollars.
After the summations, Judge J. Stephen Czuleger instructed jurors on the law. Deliberations are expected to begin tomorrow.
Kransky, a retired prison guard from Montana, had his hip implanted in December 2007 and removed in February 2012. His “diabetes, cancer, kidney disease, heart disease, vascular disease and his many other health problems are unrelated” to his hip, J&J attorney Michael Zellers said in his summation.
“This case is about what caused Mr. Kransky’s injuries,” Zellers said. “The evidence is clear that Mr. Kransky’s injuries were not caused by a defect in the ASR hip. It’s not a case about a recall. It’s not about revision rates of the ASR today.”
Zellers denied claims by Kransky and his attorneys that the tissue around his hip was damaged because the device, made of chromium and cobalt, shed metal ions.
Kransky testified that he believed the debris was poisoning him, and he feared the revision because he thought it would kill him. Records show his metals level was eight times higher than the level DePuy considered acceptable.
“There is no scientific support that Mr. Kransky’s metal ions were toxic,” Zellers said. “The evidence in this case was that Mr. Kransky was not being poisoned and that the cobalt and chromium levels in his system were not toxic.”
Zellers said Kransky’s revision came after his hip grew infected, not because of problems with the ASR.
“Mr. Kransky had an infected hip,” Zellers said. “That caused him pain. That pain caused the revision.”
Panish asked jurors to award Kransky $338,000 for his medical expenses and $5 million for his pain and suffering. Jurors also should impose punitive damages of $72 million to $179 million on DePuy, or 2 percent to 5 percent of the company’s value, Panish argued.
“This is a company that needs a solid message sent to them,” Panish said. “Nobody has ever accepted responsibility from DePuy. For a company in today’s world to do this to patients — unfortunately, it happens because the money corrupts. They don’t have a soul.”
J&J failed to test the ASR adequately before it was sold in the U.S. in 2005, and ignored reports by leading surgeons of mounting patient complaints, Panish said.
Surgeons implanted a metal cup in the hip and a metal ball atop the femur that rotated inside the cup. Panish said DePuy failed to test the cup at any angle other than the optimum one of 45 degrees. Witnesses said that the steeper the angle, the greater the amount of metal debris that was shed.
Panish said the ASR was “unsafe at any angle.”
Zellers responded to Panish’s criticism of DePuy for failing to conduct a clinical study before selling the ASR.
“This was the mostly extensively tested device in DePuy history at the time,” he said. “They worked hard to develop a product that had low wear and would last a long time.”
He denied that DePuy hid its testing data.
“DePuy shared its information with everyone,” he said. “This was not something DePuy hid and kept in its laboratory.”
He said the evidence showed that Kransky’s hip was implanted at an angle greater than 55 degrees.
“If you are going to put a cup in at that angle, you are going to get more wear,” he said.
Zellers told jurors that complaints about the hip jumped after the recall, and not because it was defective.
“When the recall occurred,” he said, “there were many, many, many complaints related to the ASR. That’s understandable. There was a lot of publicity. There was worry by patients.”
Kransky’s lawyers “have tried to make you angry at DePuy,” Zellers said. “They have tried to convince you that DePuy acted maliciously. DePuy set out to make the very best hip device they could make. DePuy is a good company. It has a superb reputation. DePuy is an open and honest company.”
In a rebuttal argument, Kransky attorney Michael Kelly derided Zellers for suggesting that revisions rose after the recall because of lawyers, like it was a “global conspiracy.”
He said revisions came two to four years after the implant, with the biggest year of U.S. sales in 2007, at 10,581.
“Surprise, surprise, these are the ones that are hurting people right on schedule,” Kelly said.
He said for DePuy to say Kransky had an infected hip was “complete, total, utter bunk.”
Kelly also told the jury that Zellers said there’s “no perfect hip.”
“Ladies and gentlemen, this is not an imperfect hip,” he said. “This is a public health disaster.”
The case is Kransky v. DePuy, BC456086, California Superior Court, Los Angeles County (Los Angeles).
To contact the reporters on this story: Maurice Possley in Los Angeles Superior Court firstname.lastname@example.org; David Voreacos in Newark at email@example.com
To contact the editor responsible for this story: Michael Hytha at firstname.lastname@example.org
- J&J Profit Pursuit Led to Defective Hip, Lawyer Argues (bloomberg.com)
- J&J Failed to Warn of Metal Hip Implant Flaws, Lawyers Argue (earlsview.com)
- Johnson & Johnson Plaintiff: Profit Motive Led to Defective Hip Implant (counselheal.com)
- J&J Expert Says Infection, Not Defect, Led to Hip Failure – Bloomberg (bloomberg.com)
- J&J Feared Metal Backlash Would Hurt Hip Sales, Jury Told – Bloomberg (earlsview.com)
- J&J Failed Own Safety Test in Hip Design, Witness Says – Bloomberg (earlsview.com)
- Business: Washington Post Business Page, Business News (earlsview.com)
- When Doctors Keep Quiet about Dangerous Hip Devices (earlsview.com)
- DePuy ASR Hip Lawsuit News: Plaintiff’s Attorney Alleges J&J Pursued Profits Over Safety; Asks for as Much as $180 Million in Damages (prweb.com)
- DePuy Defective Hip Implant Claims | eLocal (elocallawyers.com)