(Corrects verdict summary in story published April 15 to say jury found proper warning in fourth paragraph.)
Johnson & Johnson (JNJ:US)’s DePuy unit defectively designed a metal-on-metal hip implant and should award an Illinois nurse at least $5 million for harm caused by her device’s failure, her lawyer argued to a Chicago jury.
DePuy knowingly sold defective ASR hips before J&J, the world’s largest seller of health-care products, recalled all 93,000 of the metal-on-metal implants in August 2010, said Denman Heard, an attorney for Carol Strum, the plaintiff. Heard also urged jurors to award extra damages to punish the company.
“Shame on DePuy for allowing this to happen,” Heard said in his two-hour closing argument at a trial that began on March 11. “They could have saved and prevented so much harm.”
The Strum lawsuit is the second of almost 11,000 around the U.S. to go to trial. On March 8, J&J was ordered to pay $8.3 million in compensatory damages by a Los Angeles jury that found the design was defective and DePuy properly warned of the risks.
Analysts have said the cases could cost J&J billions of dollars.
Jurors began deliberating this afternoon after being told how to apply the law to the evidence by Cook County Circuit Judge Deborah Mary Dooling.
As in the first trial, DePuy’s lawyers today denied that the device, made of chromium and cobalt, was defective. Heard’s arguments were a “deliberate, conscious and premeditated attempt to play on your sympathy,” DePuy attorney Richard Sarver said in his closing argument.
The design of Strum’s ASR XL, which was implanted in January 2008 and replaced with a different device three years later, “had nothing to do with her bad outcome,” Sarver said. Rather, he pointed to her biology and health problems, including allergies, migraine headaches, chest and back pains, a family history of Crohn’s disease and apparent autoimmune problems.
While Strum, 54, sat at a table in the well of the courtroom beside her attorneys, her husband, Mike, watched the proceedings with the couple’s son and daughter. Addressing them directly, Heard called his client, “a courageous woman.”
“I believe that Carol Strum has earned her damages,” heard said. “And she will most assuredly earn her damages in the future with every waking moment, with every sleepless night,” he said.
Evidence of blackened tissue and a spike in the presence of metal ions in her bloodstream were proof that the DePuy device implanted in Strum was shedding metallic debris into her body and proof of a bad design.
“This does not just happen,” Heard said. At least one study showed 47 percent of the ASR implants failed after seven years, while another report showed a 37 percent failure rate after four years, he said.
“From the summer of 2007, they knew that this was a doomed product,” Heard said.
Still Sarver said the plaintiffs had failed to connect any problem with the ASR to the problems Strum had with it.
“The ASR XL didn’t cause Mrs. Strum’s revision,” Sarver said, using the clinical term for replacing one hip implant with another. “It just didn’t.
Strum’s natural hip failed due to arthritis while she was still in her 40s, the defense attorney said. She still suffers pain with the implant that replaced the ASR.
J&J faces more than 10,750 ASR lawsuits. About 500 are in state court in Illinois, according to another attorney for Strum, Peter J. Flowers.
About three-quarters of the total were consolidated in federal court in Toledo, Ohio. More than 2,000 are in state court in California. Others are in state courts around the U.S. The next trial is scheduled in federal court in Ohio in May.
Heard called the ASR XL, ‘‘the biggest public catastrophe of any hip implant ever put on the market” in the U.S., and “a public health disaster.”
Defending DePuy’s design efforts, Sarver’s co-counsel, Michael Conner, asked the jury to judge their product on what was known between 2001 and 2003 when it was being designed, not in 2011 after it was recalled.
“This is not a product that was developed on the back of a napkin and sold,” the attorney said.
The case is Strum v. DePuy, 2011-L-9352, Circuit Court of Cook County (Chicago).
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