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As the over 10,000 pending civil cases await trial, the question that is being asked in litigation preparation is exactly when Johnson & Johnson’s DePuy division found out that there were defects in their product and what information did they conceal from the public? The first case has already been tried and resulted in an $8.3 million verdict for the plaintiff. The second case is already underway in state court in Chicago, IL and many more are to come that will debate the same question in front of a jury.
Metal-On-Metal Hip Implant Problems
Although DePuy did not recall its ASR XL Acetabular metal-on-metal (MOM) hip replacement until 2010, it is being debated that they knew years earlier that there was a problem. These MOM hip implants were touted in the beginning to last 20 years for patients and now even DePuy admits that almost 40% of the implants will need to be replaced within five years of the implant. On top of the replacement or revision surgery, patients may suffer from tissue and muscle damage and may be exposed to dangerous metal poisoning as well.
Knowledge Of Design Flaw Prior To A Withdrawal From The Market
In the second trial, there is speculation that DePuy knew that there were problems with the design of their product back in 2008, two years before they recalled the device. The attorney for the plaintiff has revealed that DePuy discovered flaws in the design in 2008 and considered redesigning the device. However, they did not follow through with the redesign and failed to alert surgeons about the risks of the device.
DePuy even tried to downplay the issues with their device after the recall in 2010. Internal documents from DePuy showed that in 2011, their own internal analysis of their device showed that there was a 37% fail rate in the first five years. However, publicly they denied these facts. When the National Joint Registry of England and Wales estimated that the fail rate was nearly at 1/3 in 2011, DePuy said these numbers were not accurate, even though their own research showed that the fail rate was actually even higher.
The lawyers in both the current case and the thousands to come point to memos and emails as well as testimony from the lead ASR designer, Magnus Flett, that the company did know there were problems well before the recall. This adds to their liability of not only creating a defective product that is causing serious health risks but that they were aware of the problem and did not react proactively to reduce harm to the thousands of patients with these devices in their bodies. As more cases go to trial, it remains to be seen what effect this evidence will have on the outcomes of the pending cases that will be in front of the courts in the months and years to come.
For more information about the pending DePuy trials, please review: