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Johnson & – Johnson Ordered to Pay $8.3 Million in Hip Implant Case – NYTimes.com.
VICTORY & JUSTICE:
J.&J. Loses First Case Over Faulty Hip Implant
By BARRY MEIER
Published: March 8, 2013
A jury in Los Angeles on Friday ordered Johnson & Johnson to pay more than $8.3 million in damages to a Montana man in the first of more than 10,000 lawsuits pending against the medical products maker in connection with a now-recalled artificial hip.
The 12-member panel, however, declined to issue punitive damages, saying the company’s DePuy orthopedics unit, which made and marketed the all-metal device, did not act with fraud or malice. The implant, known as the Articular Surface Replacement, or A.S.R., was recalled in mid-2010.
In a statement, the company described the verdict as “mixed” and said that it planned to appeal the damage award. It disputed the finding by the jury that the A.S.R. was defectively designed.
It was impossible to say what the verdict, which came in a Los Angeles state court, would mean for other A.S.R.-related cases. A trial on a second lawsuit is scheduled to begin Monday in Chicago, with other cases expected to proceed later this year.
In its decision, the panel ordered Johnson & Johnson to pay the case’s plaintiff, a retired Montana prison guard, Loren Kransky, $338,000 to cover his medical expenses. It also ordered him to be paid $8 million to cover his pain and emotional suffering.
Some lawyers and industry analysts have estimated that the suits ultimately would cost Johnson & Johnson billions of dollars to resolve.
Thousands of the individual cases have been consolidated into a large proceeding in a Federal District Court in Ohio and a resolution of that action could provide a framework for settling the bulk of the cases and determining awards to patients.
The A.S.R. belonged to a class of once widely used hip replacements whose cup and ball components were both made of metal.
It was first sold by DePuy in 2003 outside the United States for use in an alternative hip replacement procedure called resurfacing. Two years later, DePuy started selling another version of the A.S.R. for use in the United States in standard hip replacements that used the same cup component as the resurfacing device.
However, the A.S.R.’s design caused the cup and ball to strike against each other as a patient moved, resulting in the shedding of metallic debris. That debris inflamed and damaged tissue and bone, causing pain and, in some cases, permanent injuries to patients.
Today, all-metal hips like the A.S.R. are rarely used by surgeons because most models suffered from similar problems. But data from orthopedic registries suggests that the A.S.R. was far worse than many competing products.
An internal Johnson & Johnson document introduced at the Los Angeles trial estimated that close to 40 percent of patients who received an A.S.R. will need to undergo a second operation within five years of the first to have the implant removed and replaced. In a recent filing with the Securities and Exchange Commission, Johnson & Johnson said that there are 10,750 A.S.R. lawsuits.
Traditional artificial hips, which are made of metal and plastic, are expected to last 15 years or more before needing to be replaced, and the normal replacement rate for early unexpected failures is about 5 percent after five years.
The lawsuit heard in Los Angeles was not originally scheduled to be the first over the A.S.R. but it was moved up because Mr. Kransky was found to have terminal cancer. Before the start of the Los Angeles trial, which began in late January, Mr. Kransky’s lawyers had not expected him to live through it.
Internal Johnson & Johnson documents that became public during the trial indicated that company executives were told by surgeons, who were also paid consultants to the device maker, that the design of A.S.R. was flawed. In addition, some surgeons also urged the device maker to slow sales of the implant or stop them completely, records show.
In the case, evidence was also presented that showed that Johnson & Johnson considered redesigning the A.S.R. to reduce its problems, but then abandoned the project because the implant’s sales did not justify the costs of the redesign. One of the DePuy executives involved in that decision was Andrew Ekdahl, who now heads Johnson & Johnson’s orthopedics division.
Johnson & Johnson executives like Mr. Ekdahl have said throughout the A.S.R. episode that they acted responsibly and moved to recall the device in 2010 when data from an orthopedic registry in Britain showed that its failure rate was higher than normal.
Before reaching its verdict Friday, the jury that heard Mr. Kransky’s case deliberated for more than five days. Mr. Kransky’s lawyers, citing what they described as the unethical behavior of DePuy executives in failing to warn doctors and patients of the device’s defects, asked jurors to punish Johnson & Johnson by awarding their client $36 million to $144 million. Jurors declined to do so.
Nonetheless, lawyers representing Mr. Kransky hailed the verdict.
“This is a victory for Mr. Kransky and thousands of other badly damaged A.S.R. patients who have yet to get their day in court,” Brian Panish, one of Mr. Kransky’s lawyers, said in a statement. “Jurors across the country will return similar verdicts until J.&J. takes full responsibility.”
A DePuy spokeswoman, Lorie Gawreluk, said in the company’s statement that it planned to appeal Friday’s verdict, contending that the A.S.R.’s design was not defective.
- The Hip Replacement Case Shows Why Doctors Often Remain Silent – NYTimes.com (earlsview.com)
- Damages awarded in J&J’s DePuy hip implant case (wfaa.com)
- Parker Waichman LLP Weighs-In on $8.3 Million Verdict in DePuy ASR Hip Implant Trial (prweb.com)
- Johnson & Johnson to award security guard $8.3m over faulty implant (guardian.co.uk)
- Recalls-R-US… Johnson & Johnson Confirms Inquiry Into Hip Devices – NYTimes.com (earlsview.com)
- DePuy ASR Hip Replacement Implant Lawsuit Trial Raises Questions About Johnson & Johnson’s Actions in Years Prior to DePuy ASR Hip Replacement Recall, According to Alonso (prweb.com)
- Johnson & Johnson Pays Out $8 Million In Lawsuit (huffingtonpost.com)
- Jury awards damages in Johnson & Johnson hip case (kfwbam.com)
Belinda Mcgrath said:
So I wonder what this will mean for the ones in class actions in Australia?.
Katherine McWhirter said:
At that rate by the time we get our cases heard J and J will have gone broke. Just wish something would happen before I kick the bucket.
Belinda Mcgrath said:
True thats exactly what we said! Totally agree with you Katherine. So are you in the class action? My husband is 39 years old and had an asr at 33 and has had four revisions and was left with out a hip for five months. Like you said its worrying that all the sufferes in Australia will get nothing by the time things move over here. 😦 Belinda.
I do not agree, Belinda, as all of these counselors now have sweat on their brow!
Settlement offers will be larger and come quicker for all of us, but if they throw peanuts at us, we go to juries (and they are are now aware of that. I would love to be a fly on the wall in all of the MOM boardrooms now. RED ALERT)!
Thing are much better, much brighter today for all MOM hip implant revision sufferers!
(We love you, Mr. Kransky. Justice meted, precedent established)!
Meg, it’s now going to end VERY well, and you will be compensated for your pain and suffering, as ‘a revision is a revision’ and you have suffered like all of us, and as you note below still do. All settlement offers have jut doubled.
And you’re not going to kick the bucket beforehand! My dad died at 91 and his bother is still going strong at 94!
Keep the faith, baby, you’ve got plenty of time.
(Maybe one stipulation of your settlement [or trial] is your use of their corporate jet for all of your travel)!
Katherine McWhirter said:
There are so many worse off than me – had the revision last July, still limping badly and need my stick or I get a lot of pain. My life as I knew it has gone, but I am still a lot better than some of the younger ones who seem to have more problems. I am very bitter about the whole thing and as I am 75 my travelling life has suddenly come to an end, but does anyone care, not really, even the Dr. said”:technically I have done a good job” and you might never walk properly again. No suggestion of physio or any other form of therapy. I guess I can still get around and unless I do too much the pain isnt too bad. However, where and how is it all going to end.
Don’t worry, Johnson & Johnson have put aside $3billion dollars for these cases and they probably also have insurance too. Your time will come!
The ending of this case was the stone being dropped in the water, the ripples will continue on long after the stone has landed on the bottom forever still in the darkness of history.
Beautiful prose, sir! And spot on accurate, as this bodes very well for all of us. Corporate counsel at EVERY MOM manufacturer know what this means, and please, let no one take the $200k as a few people already have. Every MOM device peddler is taking notice, and yes, as Gayle says above, “your (our) time will come”!
Absolutely! Ass kicking time. Even if our hips prevent the actual motion!
Well lets hope that everyon gets what they are entitled to. Howevever no money brings back quality time bringing up your young children as babies. Missing playing and helping with them while your on the couch in constant pain, not knowing whats going on. Thinking its all in ya head. Being in ya 30’s. Such a shame a reall shame.
I have had a Smith and Nephew replacement 5 years ago and had a revision in October with Cobalt levels 65 times higher than “normal”. Had bone deterioration and tissue damage and black “sludge”, they discovered during the revision. Hopefully S&N are next on the list.
Hi Jan, do you know if you had only the BHR procedure itself of whether or not you ended up with a (fictitious) BHR THA (a ‘total’ hip). I’m sure — well, I hope — you were told that in the BHR procedure, they try and resurface the bone in order to affix the short-stemmed, two piece BHR Head to it, and in some cases they don’t have ‘viable’ bone to work with. They then move to performing a ‘total hip'(THA) while you’re still under anesthesia. In that case, you would have what they have tried (mightily) to call a BHR THA. No such device exists, as the ‘BHR Head’ is not a real device. It is simply a name Smith and Nephew bestowed upon a ‘generic’ modular head approved for a completely different purpose and procedure unrelated to hip resurfacing.
They always place the BHR acetabular cup in your body first, and then if your bone is too arthritic for the resurfacing procedure, they try to dictate misleading data that might appear on your op report, such as :”Total hip resurfacing arthroplasty with conversion to total arhthroplasty”. Mr. Smith, please, which is it? There can either be a ‘resurfacing’ surgery or a ‘total hip arthroplasty’ surgery, not both — so please don’t keep us guessing!
But there is a legal reason they do this, and it’s too much to write here, especially if you have the primary S&N BHR. At present I know of only one case involving the BHR that is taking place in the U.S. — http://www.schmidtlaw.com/birmingham-hip-implant-lawsuit-filed-in-illinois/
Please find out from your doctor or your hospital records exactly which you have in your body. You also need to find out what your state’s ‘statute of limitations’ for any legal action is, before it’s too late to file suit against S&N (assuming you want to).
All of this would become moot if these people at S$N realize their product is merely a Cadillac in comparison to J&J’s Chevrolet — and that even ‘luxury’ cars break down. But they’ll wait and watch this trial and others and wait as long as they can, until the possibility that they might lose more $ in lawsuits overrides their current reluctance to settle $ with injured recipients like you and me. And many other people who visit this website.
Good luck to you.
Harold Tock said:
Hello from the UK,
Thank you, it was nice to have a link to look at to see what is happening in the rest of the world with the courts actually giving some credibility to the suffering of ordinary folk who can not afford to take these monster companies on. I personally will not see any claim in my lifetime as the companies can drag it out forever and here in the UK I believe that after 6 years the claim will not be valid.
Good luck to all fellow sufferers.
Harry, East Yorkshire,UK
Harold Tock said:
My personal experiences: I have had a Smith & Nephew Birmingham 36mm metal on metal hip replacement in 2008 and the NHS in Hull & East Riding took 3 years of tests MRI,Ultrasound,CT scans, Guided ultrasonic injections,blood tests and other tests. All of which left me to tell the consultant who tried to persuade me nothing was wrong to perform a revision. After waiting 24 weeks I rang to ask when I was to be operated on and the secretary told me possibly within the next three months so I went online and found a hospital and surgeon in Lille, France who gave me a date in 7 days. I went to France and after coming round the doctor told me I was very lucky as he found a tumour the size of a very large orange on my hip and he said if that had burst while on the operating table he would have not been able to save me as the tumour was connected to blood vessels and any poison would have gone all round my body and in 48 hours and I would have died. This is when I realised that for the last three years the NHS were just wasting both my time and their money as they did not find anything wrong even with all the fancy equipment. The French doctor found the tumour and knew where it was within 30 seconds of his first examination on a bench in a room later confirmed with a simple x-ray. There is no-one to blame it is just one of those things that companies like Smith & Nephews refusing to acknowledge publicly that in pursuit of profits it does not matter who gets hurt or is made to suffer as long as they can make money. The company Depuy in America has accepted that metal on metal will create problems but not our own English companies. One has to ask the question how far before someone takes responsibility. The government’s medical research body was told of my pain and problems more than a year ago. Is it too much to get answers or is there more covering up that anyone is prepared to be accountable for. The old prostheses is being tested in a Paris laboratory as part of the French doctors investigation and research into metal on metal problems as he told me he is getting very many patients coming to him for metal on metal problems. atlantisbird.
Adrian Thomas said:
“The verdict will set a starting price for other Plaintiffs in settlement discussions”said Erik Gordon a U of M Business Professor as reported by Bloomberg News lets just hope our Attorneys are checking this out instead of sitting on their duffs and waiting for the phone to ring,I’ve talked to so many Attorneys that don’t have a clue about these cases, I think they’re scared of the big J&J and we might have to get the Attorneys that get it done like Mr.Kransky,and like Mr.K,I think we should not settle for less than 7 figures,though we’re worth more I can’t sit or stand for more than 10 minutes,whose gonna hire me?
Harold, sorry to hear your story but the actual claim time is 10 years for product liability. Please see Lampkin & Co video and info on this page or on mine at http://www.metalhipproblems.co.uk They are going for Smith & Nephew as well as all metal hip implant manufacturers. They have a very strong team and I am not on commission, merely a fellow victim who is trying to help others in the UK and relating stories of other S&N victims worldwide whilst also trying not to take anything away from Earl. We liaise regularly and are on the same page!
Exactly, pardon the pun, bit it is a joint effort.
Harold Tock said:
Thank you for your comments, I have taken the time to send an email to the solicitor but am of the opinion that it will all be same bunch of questions we have had before with nothing being done. There has been some expert in London who has thrown a wobbly on claims against S&N and the lawyers are only interested if the actual company admits fault then it is easy money for them just to fill a form in. Since the operation in France I have had lots of problems including excruciatingly painful neurological tests. Every step since has been painful and I have just accepted that this is the best it is going to get and fortunately at my time of life it may be the easy option to suck it up and get on with the rest of my life. One company in Sheffield told me that they had 78 people on their list who could possibly have a claim against S&N but until S&N admit that the design is wrong and volunteer to pay proper compensation like other companies the solicitors have left me with just a completely empty feeling of I am on my own again.
You may well be right but Lampkin & co have already demonstrated they have applied for my medical records. When they receive these then they can determine a case of which I understand. I was contacted by another legal firm whom I had signed up for in Jan 2012 asking if I was still interested! Probably spurred on by Mr Kransky’s win, naturally I asked them if they liked s*x & travel! Have faith.
Harold Tock said:
Lampkin have been in touch and are sending forms for me to sign. WE have also agreed to visit their offices to discuss matters further on the 2nd April. There is a new government limit coming in at the beginning of April and for all people who think they have a problem they should get in touch with solicitors before then, as the new regulations mean they will have to charge everyone by law up to 25% of any claim. This is because the no-win-no-fee is ending permanently and solicitors must charge the client as it is going to be impossible to charge their fees to the companies such as S&N.
Is there going to be a minimum level of acceptable damages as I have read that some companies are already trying to offer smaller amounts before it goes to court in order to limit the amount once signed up.
As a extra piece of information for all who are still awaiting revision surgery.
After 18 weeks of being on a surgical list or indeed if there is unnecessary delays in treatment you have a right under article 56 of the EU convention of human rights to elect to have any european hospital perform the operation and the NHS PCT have to pay the hospital costs. Personally after 27 weeks I went to Lille in France and although I did not receive any costs for travel and hotel bills and had to pay for the hospital stay and operation up front, when I returned home I sent the invoice to the NHS and they would only pay for the maximum charged in the UK hospitals.
Had I not made the decision to go to France I believe I would have died once the tumour (as big as a large orange on my S&N Birmingham MoM hip) eventually bursts. The French doctor/surgeon was excellent and had a very difficult operation telling me that if the tumour which was attached to all my blood vessels had burst during the operation he would not have been able to save me and it would have been less than 48 hours after i could have died.
Hope this helps.
Barbara Ford said:
I was hopeful last year that it was only a matter of time until all of these MOM hips would be recalled but have now lost faith that Smith and Nephew will ever come clean and admit that their product has caused any problems. They are still spouting the same old crap on their website, claiming that the BHR is the best thing for young patients etc. It’s so disappointing.
I contacted a lawyer last year who, last time I talked to them, were going to get all of my health records from my surgeons office. I’ve heard nothing since. I’ve emailed and played phone tag with no results. I found out last week that the lawyer who was assigned to me has since left the group. I was hooked up with this lawyer via the US drug watchdog.
I now have recalled Stryker Total hips and have a lawyer from Rottenstein law group (whom, I sent a short email message to) calling me, leaving messages saying I do have a case to but he doesn’t know my story. He doesn’t know about my Smith and Nephew failures, only that I currently have Stryker hips, which have been recalled.
I think he’ll run when he hears the rest!!!
Gayle, I hope it turns out to be true that the statute of limitations is 10 years, in the UK, for product liability. I know it sadly isn’t the case here in the US. It differs from state to state and in my state is 3 years, which I think is about average.
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