Insurance Dispute Lawyer Blog
Recently, lawsuits have been filed against Johnson and Johnson’s orthopedic division, DePuy Orthopedics, Inc., for injuries caused by the ASR XL Acetabular System and the DePuy ASR Hip Resurfacing System. Both of these metal on metal hip implants have been recalled as a result of the exceptionally high number of individuals experiencing severe pain and discomfort after having the hip implantation. Reports released by DePuy show that 1 in 8 individuals who received the ASR total hip replacement needed revision surgery in order to correct the first implantation. One form of the revision surgery takes the DePuy device completely out of the individual and implants a different device or resettles it to fit the joints properly while others merely reattach and fit the device upon the bone more properly. Numerous issues have arisen as a result of these hip products, many of which have caused individuals significant hardships in their daily lives.
Lawsuits filed against DePuy and Johnson & Johnson allege that the companies are strictly liable for the defective product they put on the market worldwide. Complaints about the two metal on metal hip implants go back as far as 2005; yet, the company just recently recalled the products in 2010. This has allowed over 93,000 individuals to receive the implant and, for too many, be subjected to pain, discomfort, and, most likely, a second corrective surgery. This surgery is carried out to prevent the device from loosening and causing hip fractures, device malalignment, dislocation, and even bone breakage. DePuy acknowledges that the product may even cause Metallosis, a complication of metal-containing total joint replacements that involves the metal rubbing together and causing parts to fragment. This is a serious issue, especially in light of the fact that, if revision surgery is needed, this soft tissue damage may complicate the operation and in turn, the individual’s health.
During the Post implantation period, individuals who have had the surgery have described pain and discomfort on a daily basis, making even the most simple daily activities a challenge. Thus, the lawsuits focus primarily on the fact that DePuy had a duty to consumers not to introduce into the market a product that was defective and dangerous. There is various atttributes of each cause of action that will now be discussed in turn.
Strict Liability in Tort
Plaintiffs are suing DePuy for strict liability, which means that the court will hold the manufacturer responsible for the goods and products they produce, especially if they cause consumers injury. Significantly, DePuy had a duty of care to the plaintiffs/consumers to manufacture, distribute, and/or sell reasonably safe products that were fit for use by consumers. This duty was breached by DePuy, in our opinion, because a failure or omission to do what the company is bound by law to do took place. The fact that DePuy manufactured, distributed, and/or sold the defective products, placing them into the stream of commerce and jeopardizing consumers health illustrates DePuy’s breach of duty. Additionally, under strict liability, DePuy’s products resulted in individual’s being injured and experiencing ongoing pain and discomfort, thus, allowing DePuy to be held responsible for introducing to consumers a dangerous product.
Further, patients with the implant contend they suffered injury and damages as a direct and proximate result of the defective and unreasonably dangerous condition of the DePuy ASR Hip System, and that they would not have used the product had they known of the serious consequences. A proximate result is traceable directly to an act or omission, without the occurrence of another culpable and efficient agency intervening. Thus, the serious problems these patients experienced as a result of having DePuy’s product implanted was the proximate result of placement of an unreasonably dangerous product into the stream of commerce. Further, DePuy did not place any warnings or even instructions on the product to place the plaintiff/consumer on notice of any potential product risk, and, therefore, the company is subject to liability for placing a dangerous product into the stream of commerce and causing individual’s injuries as a result of the dangerous product.
Negligence
Because DePuy’s product was designed to go into the human body, the utmost care and safety should have been taken in order to protect individual’s health. DePuy had a duty to exercise reasonable care to sell reasonably safe medical devices so as not to subject the ultimate consumer to an unreasonable risk of harm. To have a metal on metal hip implant potentially fracture or break bones in the hip area, or release shredded metal component parts damaging soft tissue, does not illustrate DePuy’s reasonableness in distributing such a dangerous defective product. Therefore, those who have received the implant would assert, through their attorney, that DePuy was negligent, careless, reckless, grossly negligent, and wanton, and breached their duties in the manufacture, distribution, and sale of the DePuy ASR Hip System.
DePuy manufactured a product that they now acknowledge was not proper for public use and in need of further testing and analysis. More than 90,000 people have received DePuy implants and are, thus, in danger of going through a second surgery or having their daily lives severely affected because of pain and discomfort. Many say that DePuy actually failed to warn hospitals and patients that the ASR Hip System was defective and that the company placed and permitted the placement of the hip implant into the stream of commerce when DePuy knew or should have known that the product was defective and unsafe for individuals to have implanted in their bodies. Also, DePuy failed to employ corrective safety mechanisms to limit the harm caused by the hip implant, and did not properly and adequately test and inspect the product before selling it worldwide. As the defective product became widely utilized and placed thousands in jeopardy, our firm asserts that the company knowingly placing the dangerous product into the stream of commerce and causing injuries.
DePuy has had complaints dating back to 2005, yet, the defective products were not recalled until 2010. As such Depuy failed to keep abreast of and/or react appropriately to public, government, and/or industry studies, information, documentation, and recommendations and may be deemed negligent.
Due to the suffering that patients underwent, both physically and mentally due to the trauma of going through pain, discomfort, and the threat of a second surgery, DePuy is arguably the cause of these injuries due to the expectations placed upon a manufacturer. Individuals relied on the safety of the product to feel confident enough to follow through with having such an invasive procedure. The fact that they are now physically injured is a result of trusting a company to put out a safe product, not one that would imperil their daily routines and lives.
Beyond all of this, what is beginning to draw even more ire towards Johnson and Johnson is the extensive time (five years) that it took for the company to recall the hip implants despite receiving data and responses that indicated a significantly high number of patients were suffering pain and discomfort related to the product. What’s more, the need for a second corrective surgery was a reported fact the company was aware of over time as revealed by their recent document releases relating to the recall.
Individuals who received the implants and have suffered the myriad of symptoms relating to it are likely entitled to monetary damages under the law. By hiring an attorney, individuals who have suffered pain, financial hardship, depreciation in quality of life, surgery or a wide variety of other harms can begin the process of receiving what they deserve in a court of law. If you have received one of these implants, and experienced problems relating to the DePuy ASR hip implant, contact the Berniard Law Firm.
Call the Berniard Law Firm at Toll Free 1-866-574-8005 and an attorney will be more than happy to discuss your legal rights and help you get the financial support you deserve.