For anyone finding themselves with a heavy heart toward DePuy when they think of the mounting litigation sure to take place in response to the company’s recent hip implant recall, this should give them pause. In the third quarter of 2010, Johnson & Johnson, DePuy’s parent company, announced sales of $15 billion in total sales. In fact, Johnson & Johnson credits DePuy’s orthopedic joint reconstruction operations as a critical source of this massive profit.
Standing alone, companies should not be criticized for generating profits. Indeed, that is the inherent purpose behind most corporate charters. On the other hand, when companies generate large profits by marketing defective products because they fail to maintain adequate quality controls, then censure is warranted. Investigations into the DePuy hip implant recall have revealed not only unacceptable quality standards, but have also suggested DePuy knew of the defects in the implants and continued to sell them for years before it finally issued the recall. Such unsavory business practices are inconsistent with traditional notions of accountability and integrity expected of market participants.
One method of restoring accountability to the marketplace is through the court system. Litigation is sometimes criticized by commentators who fail to understand its process or purpose, but lawsuits are often the only remedy available to those harmed by manufacturer irresponsibility. When an individual loses something—a limb, general wellbeing, or wages–as a result of corporate impropriety, it is only equitable to provide the injured party with recompense to restore that person to the place in life they were before the loss.
In the case of the DePuy hip recall, many recipients have found themselves suffering from metallosis, disfigurement, and extreme pain and suffering after the defective artificial hip joints were implanted into their bodies. The position the recipients were in before receiving the defective implants was much more favorable than their position after implantation. While time travel does not exist to reverse the damage the hip implants caused, other effective substitute methods of pre-harm restoration do exist. These include monetary damages for actual harm caused, rehabilitative procedures, revision surgeries, and future harm due to diminished earning capacity caused by the resulting injury.
In addition to making individuals whole, litigation is also important in deterring manufacturers from producing defective products through the adjustment of economic risk. When manufacturers create their business plans, they are aware that not every product can be made to be 100% fail-safe. Such a scheme would be unfeasible and too burdensome for the manufacturer. Accordingly, manufacturers know that some product failures will be acceptable to regulators and to the public. Aware that some unit failures are tolerable, manufacturers often try to implement the least amount of safety measures acceptable in order to produce the greatest amount of profit possible. By suing companies when their products fail, litigants effectively raise the cost of production for defective products, thus preventing their sale in the first place. Another way of conceptualizing this is by saying that litigation makes it more expensive for companies to skimp on protective measures than it is for them to sell the product without such restraints.
Relating this deterrence rationale to the DePuy hip recall, litigation sends an economic message to the company that neglecting the quality of its product in exchange for greater profits will, in the end, result in an even greater monetary loss than would have been incurred had the company implemented a functional artificial hip joint design in the first place.
In the face of significant product failures produced by multinational conglomerates such as DePuy/Johnson & Johnson, litigation is often the great equalizer between the individual and the billion dollar corporation. Attorneys at The Berniard Law Firm have taken on several large organizations in successful efforts to recover for their clients’ harms. If you feel you may be impacted by the DePuy hip recall, contact The Berniard Law Firm today.