The jury in the first of 10,750 DePuy ASR hip lawsuits to go to trial awarded a Montana man $8.3 million and found Johnson & Johnson negligent for designing a defective implant, The New York Times reported. The panel ordered the billion-dollar medical company to pay the plaintiff, Loren Kransky, $338,000 for medical expenses and $8 million for his pain and suffering; the jury did not award punitive damages.
Experts say the verdict, which came on March 8, sets the bar for future jury awards against J&J, and they predict that punitive damages will likely be awarded in the future.
In an email to Bloomberg, Erik Gordon – a University of Michigan business professor – said: “Most plaintiffs will get more sympathy from jurors than Mr. Kransky elicited. A jury somewhere is going to hit the company with huge punitive damages to send a message that J&J refuses to hear.”
Kransky, a 65-year-old former prison guard, suffered metal poisoning after excessive metal debris flaked off his DePuy ASR implant into his body. Experts at the trial, which took place at the Los Angeles Superior Court, said the metal entered the blood and surrounding tissues because of the ASR’s faulty design.
DePuy ASR: ‘A Public Health Disaster’
In closing arguments, Michael Kelly, Kransky’s attorney, said: “This is not an imperfect hip; this is a public health disaster.”
J&J recalled the ASR in 2010 after studies showed a 12 percent failure rate within 5 years. However, internal documents indicated that at the time of the recall, the company knew that as many as 40 percent would fail in that time period. In fact, Australia’s joint registry is reporting that 44 percent fail in 7 years.
Kransky testified that he was in constant pain and could barely walk. He added that he was afraid that the revision surgery would kill him because he had already had several surgeries, but that he had no choice because the implant was poisoning him.
One juror, David Vega, said he wanted to award punitive damages after evidence was presented that DePuy didn’t act quickly enough after problems with the device arose.
J&J maintains that its device was not defective. Michael Zellers, J&J’s attorney, said at the trial that Kransky’s injuries “were not caused by a defect in the ASR XL hip or by any conduct of DePuy.”
The Los Angeles jury disagreed.
Next DePuy Trial Begins in Chicago
After losing the Kransky trial, J&J intends to appeal. But in the meantime, the company has no time to prepare for its next ASR trial.
Carol Strum, a 54-year-old Illinois nurse, brings her case before a Chicago jury beginning March 11, 2013 – when opening statements are set to start. Strum’s complaint claims that DePuy produced a faulty hip and failed to warn the public of risks. Despite knowing of the ASR’s performance and safety issues, the company failed to act, she claims.
Strum’s attorney told Bloomberg that, “It’s the classic case of profits over safety.”
According to Strum’s complaint, she had her ASR implanted in 2008. After developing high levels of cobalt and chromium in her blood, she had another surgery to have the implant removed in 2011. Strum is seeking punitive damages because she alleges J&J acted with “fraud and malice.”
Kransky’s and Strum’s cases mirror the experiences of thousands of DePuy ASR and other metal-on-metal hip recipients across the country, who also filed lawsuits.
J&J is not taking the heat alone, and other device manufacturers are also embroiled in mounting lawsuits for their allegedly faulty hips. Companies like Biomet and Stryker – manufacturer of the recalled Rejuvenate and ABG II – are facing similar claims of metal poisoning.
The high number of reports of problems with metal-on-metal hips prompted the FDA to review the devices and enact stricter regulations on device manufacturers. In January 2013, the agency released a Safety Communication regarding the dangers of these types of implants.
Johnson & Johnson has set aside about $1 billion to cover the cost of the recall and mounting litigation.