Bloomberg News

J&J Facing Trial Over Artificial-Hip Claims in Maryland

January 07, 2013

Johnson & Johnson (JNJ:US), which is defending against more than 10,000 lawsuits over recalled hip implants, faces its first trial of claims that the devices left some patients immobilized and in pain.

Moira Jackson, a former professional dancer who received two artificial hips, claims J&J’s DePuy unit didn’t properly warn her or her doctors about the implants’ risks. Jury selection in Jackson’s case is slated to begin today in state court in Prince George’s County, Maryland, near Washington.

DePuy’s faulty ASR hips caused Jackson “severe physical distress and injury” and left her unable “to lead a normal life,” her lawyers said in court filings. Jackson is seeking at least $15 million in damages, according to the filings.

J&J in 2010 recalled its 93,000 ASR hips worldwide, including 37,000 in the U.S., saying more than 12 percent of them failed within five years. Patients suing New Brunswick, New Jersey-based J&J claim metal debris from the hips, made from a cobalt and chromium alloy, causes tissue death around the joint and may increase metal ions in the bloodstream to harmful levels.

J&J countered in court filings that federal regulators approved the sale of ASR hips and DePuy executives adequately informed doctors and patients about the prosthesis’s risks of failure.

FDA Approval

“Defendants deny that the medical device, which was cleared for use in the United States by the Food and Drug Administration, is defective,” J&J said in court filings.

DePuy will fight the allegations “and believes the evidence will show the company acted appropriately and responsibly,” Lorie Gawreluk, a company spokeswoman, said in an e-mailed statement.

J&J faced 10,100 suits over the DePuy hips as of September, according to a November filing with the U.S. Securities and Exchange Commission. J&J said in the filing that it increased reserves “due to anticipated product liability litigation and costs associated with” the ASR hips. The company didn’t specify the amount of the increase.

The company said in January 2012 that it had spent about $800 million on hip recalls during the prior two years. J&J wouldn’t estimate its product-liability costs.

Consolidated Suits

Many of the hip suits have been consolidated before a federal judge in Ohio for pretrial information exchanges. U.S. District Judge David Katz in Toledo has set the first of those cases to go to trial in May, according to a December court filing. The second trial is set for July.

Jackson’s suit was set for trial after an attempt to resolve the case last year through mediation failed, according to court filings.

By 2006, arthritis in the former dancer’s hips “had become debilitating,” J&J said in a court filing. She had her left hip replaced with an ASR implant in August of that year and her right hip four months later, according to the filing.

In 2009, the device in her left hip loosened and Jackson had it replaced, J&J said in the filing. She had a similar revision surgery on her right hip the next year.

Jackson’s lawyers will probably argue that besides the pain and stress caused by the hip’s failure and additional surgeries, the retired dancer may have been exposed to harmful levels of chromium and cobalt ions released by the device, according to court filings.

Surgeon’s Testimony

J&J is seeking to block the testimony of Dr. Robert Snowden, a Florida-based orthopedic surgeon whom Jackson’s lawyers want to call as an expert witness, according to court papers. Snowden is seeking to tell jurors that ASR hips raise patients’ cancer risks, J&J said in a filing.

The company contends that Snowden isn’t qualified to appear as an expert witness about the operations of the implants or their systemic effects upon patients.

“Dr. Snowden’s opinion that ions released from a metal-on- metal implant may cause cancer is also inadmissible because he cannot opine based on a probability and not on possibility,” J&J said.

Judge Crystal Dixon Mittelstaedt in Upper Marlboro, Maryland, is scheduled to oversee jury selection today and lawyers are slated to give opening statements tomorrow.

Maryland Trial

The Maryland trial comes more than four months after J&J agreed to pay about $600,000 to three ASR hip recipients in the first settlements of the litigation, people familiar with accords told Bloomberg News. The cases had been set for trial in December in state court in Las Vegas.

Brian Franciskato, who is representing Jackson in the Maryland case, was one of the lawyers for the Nevada plaintiffs who settled. He declined to comment on Jackson’s case in a telephone interview last week.

The consolidated federal case is In re DePuy Orthopedics Inc., ASR Hip Implant Products Liability Litigation, 10-MD-2197, U.S. District Court, Northern District of Ohio (Toledo).

The Maryland case is Jackson v. DePuy Orthopaedics Inc., CAL 10-32147, Circuit Court for Prince George’s County, Maryland (Upper Marlboro).

To contact the reporters on this story: Jef Feeley in Wilmington, Delaware at jfeeley@bloomberg.net; David Voreacos in Newark at dvoreacos@bloomberg.net

To contact the editor responsible for this story: Michael Hytha at mhytha@bloomberg.net


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