The first courtroom test of liability claims involving a particular DePuy Orthopaedics Inc. hip replacement device ended in more or less a split decision: The jury awarded plaintiff Loren Kransky $8.3 million but rejected his bid for punitive damages.
Unfortunately, attorneys on both sides agree, the outcome tells precious little about the prospects for the approximately 10,000 claims still pending against the company over the device, known as ASR XL. A more representative test of the legal issues facing DePuy began unfolding in a courtroom in Chicago on March 11. Plaintiff Carol Strum had her device implanted in 2008.
Kransky v. DePuy was rushed into the courtroom because of the plaintiff’s ill health and was “a bit of a diversion,” said plaintiffs lawyer Matthew Davis of San Francisco’s Walkup, Melodia, Kelly & Schoenberger, whose firm colleague, Michael Kelly, heads the plaintiffs steering committee in the coordinated ASR litigation in California state courts, of which Kransky was a part. For one thing, Kransky had his device implanted in 2007, three years before DePuy recalled the ASR XL, and his jury might have concluded the company hadn’t understood the danger. “Every case has strengths and weaknesses on both sides, but there were serious problems in liability and damages, we thought, in the Kransky case,” Davis said.
By contrast, Cook County, Ill., Circuit Judge Deborah Mary Dooling is treating Strum’s case as an informal dry run for 300 actions pending before her. She asked lawyers on both sides when picking the lead case “to keep in mind…how representative these first few cases would be as it relates to the rest of the cases, in hopes that they would help…or give guidance to resolutions of the other cases,” said plaintiffs lawyer Navan Ward Jr., a shareholder at Beasley, Allen, Crow, Methvin, Portis & Miles in Montgomery, Ala.
The Strum case is expected to last about a month. Dooling has scheduled dates in eight trials, the last on January 7, 2014. “The judge has set probably more cases in Illinois than any of the judges around the country have set,” said Ward, who has a trial in one of his cases scheduled for December 9.
DePuy, based in Warsaw, Ind., will have numerous opportunities to make its case. Most of the implant lawsuits have been coordinated in federal multidistrict litigation in Toledo, Ohio. There, the first official bellwether trials — those most representative of the cases overall — are scheduled for May 13 and July 15. Additional trial dates are scheduled in state courts in California, Florida, Maryland and New Jersey.
Regarding the Kransky case, DePuy spokeswoman Lorie Gawreluk said, the jury heard nothing about the fact that the U.S. Food and Drug Administration had cleared the ASR device for sale. That evidence is being introduced in Strum’s case.
“The company will defend itself against the allegations raised in the litigations and believes the evidence will show the company acted appropriately and responsibly,” Gawreluk wrote in an emailed statement. “ASR XL was properly designed, the product was thoroughly and appropriately reviewed and cleared by the FDA, and the company informed of the product’s known risks.”
More than 93,000 ASR metal-on-metal hip replacements worldwide have been implanted in patients. DePuy voluntarily recalled the device on August 24, 2010, but plaintiffs allege the company knew about its problems long before that and failed to warn doctors. Those problems, they claim, include pain, grinding or clicking in the hips and a high metal content in blood tests.
“We regret that the product did not perform as expected for some patients, and we understand the recall has been concerning for ASR patients and healthcare providers,” Gawreluk wrote. “DePuy acted in the best interests of patients in deciding to voluntarily recall the ASR Hip System and in creating a program to work with patients and their health insurers to address medical costs directly associated with the recall.”
DePuy’s lead attorneys are Robert Tucker of Tucker Ellis in Cleveland and Susan Sharko, a partner in Drinker Biddle & Reath’s Florham Park, N.J., office. Tucker declined to comment and Sharko did not return calls for comment.
In the case now on trial in Chicago, Strum claims she had an ASR device implanted due to arthritis in her left hip. After suffering pain, she had another surgery in 2011 to replace the device.
“The tragedy of this lawsuit is that DePuy had information three years earlier than this — 3 1/2 years earlier than this — that they could have shared with doctors and that if they had done so, we literally would not be here today,” plaintiffs attorney Denman Heard of Heard Robins Cloud & Black in Houston said during his opening statement.
“Ms. Strum would not have had a defective implant put into her body because her doctor would have been fully informed about this product.”
DePuy counsel Richard Sarver of Barrasso Usdin Kupperman Freeman & Sarver in New Orleans argued that Strum’s individual biological and health issues, not the ASR device, caused her to undergo the second surgery.
“DePuy at every step acted as a responsible manufacturer,” he said. “It drew on years of experience in trying to create this product, spent four years creating it, studied it after it was on the market, provided information to doctors and the scientific community, followed the law. We followed the rules. We did exactly what FDA asked us to do and we warned about the very issues that are raised in this case.”
In the MDL, U.S. District Judge David Katz in Toledo scheduled the first bellwether trials on December 28 after each side submitted three top choices. Both bellwether selections were chosen by the plaintiffs’ steering committee. The first case, to be heard in Toledo, was filed by Faye Dorney-Madgitz, 56, of Allentown, Pa., who alleges she had an ASR device implanted in her left hip in 2009 due to arthritis. She claims she had it removed in 2010 because of pain and clicking and popping sounds while walking.
The second, to be heard in Cleveland, was filed by Ann McCracken of Rochester, N.Y., who said she had the ASR device implanted in 2009 but had to undergo surgery in 2011 after suffering pain.
Ellen Relkin of Weitz & Luxenberg in New York, co-lead counsel for the plaintiffs’ steering committee in the MDL, said that both cases involve surgeries performed in 2009, one year before the device was recalled. “We selected them, and that was one of the reasons,” she said. The later the date of implant, she said, the harder time DePuy could have convincing a jury it knew nothing about the device’s problems.
Another trial, in a case outside the MDL, is scheduled for November 8 in Palm Beach County, Fla., Circuit Court. David Kauthen, a heavy equipment operator in his 60s, had the ASR device implanted in 2007, said plaintiffs attorney C. Calvin Warriner III, a partner at Searcy Denney Scarola Barnhart & Shipley in West Palm Beach, Fla. After suffering from pain and numerous falls, Kauthen had another surgery in 2010 to remove the device, he said. “And now he is a broken-down guy,” Warriner said. “He walks significantly bent over with a walker.”
On June 10, DePuy faces trial in Prince George’s County, Md., Circuit Court. James Parcell, 63, a former newspaper photographer, claims he had two ASR devices implanted in 2007 and then removed in 2012 because of pain, said his attorney, Tayjes Shah of The Miller Firm in Orange, Va.
In Bergen County, N.J., Superior Court Judge Brian Martinotti has scheduled trials for September 9 and October 21, and each side has submitted three possible bellwether cases. More than 600 cases are pending in New Jersey, where DePuy’s parent company, Johnson & Johnson, has headquarters in New Brunswick.
Back in California, where about 2,000 cases are pending before San Francisco County Superior Court Judge Richard Kramer, the first bellwether trial could take place as early as June, possibly in San Francisco, said Davis of the Walkup firm. Neither side has yet to select a case.
Next time, plaintiffs attorneys are confident they’ll win punitive damages. In Kransky, the verdict was for $338,000 in medical costs and $8 million for pain and suffering. “They didn’t want to assess punitive damages on this specific case,” Brian Panish of Panish Shea & Boyle in Los Angeles, who represented Kransky, said of the jurors. He had asked them for as much as $179 million in punitive damages. “But there are a lot more cases to come — and we think we’ll get punitive damages for sure.”
Amanda Bronstad can be contacted at email@example.com.