North Carolina Product Liability Lawyer Blog
I have been getting a few calls recently from people who still have the Depuy ASR hip implanted in one or both hips. They are asking the right questions: Are the metal levels in my blood too high? How will metallosis affect my long-term health? Will the component slip on me now and cause all kinds of new pain? Should I schedule surgery and have the Depuy ASR components removed? Plainly, these are questions for a doctor, not a lawyer. I can’t answer any questions specific to your health. Eventually, however, these callers ask an intriguing question: I have the Depuy ASR hip implanted in my body and I have not yet scheduled revision surgery: Do I have a valid claim against Depuy and Johnson & Johnson? It’s a good question.
People with Depuy ASR hip components implanted in their bodies who did not undergo revision surgery did not “qualify” for the two settlements that have been reached in the Depuy ASR multidistrict litigation (DePuy Orthopaedics, Inc., ASR Hip Implant Products Liability Litigation, MDL 2197). But this does not mean they are not injured or that they do not have a valid claim. All it means is that they did not qualify to participate in the settlement based on the timelines in the settlement agreements. Let’s take a step back.
Two settlement agreements were reached in the Depuy ASR MDL. To qualify for the “2013 Settlement” you must have undergone revision surgery on or before August 31, 2013. To qualify for the “2015 Settlement” you must have undergone revision surgery between August 31, 2013 and January 31, 2015.
Depuy ASR Hips Still Implanted After January 31, 2015
Plainly this creates a group of people who could not participate in the settlement: those who had not undergone revision by January 31, 2015. This includes a substantial number of people (some of whom I represent). Let’s take a quick look at the calendar: Depuy issued a recall of the ASR hip on August 24, 2010. This means that people were receiving Depuy ASR implants in 2010, and quite likely after August 24, 2010 (as it often takes time before a recall is fully communicated to the broader medical community). Let’s say you had hip replacement surgery on in May 15, 2010, and for a few years the implant felt OK. But then you started to feel some pain, and then six months ago had blood work done. Your doctor told you that you had elevated levels of chromium and cobalt in your system. Your doctor then said this is likely the result of your metal-on-metal Depuy ASR hip implant. At this point you are beyond the January 31, 2015 deadline to undergo revision surgery, so you cannot participate in the 2015 Settlement. But you still have a valid claim.
Valid ASR Claims After January 31, 2015
First, the Depuy ASR hip components failed at an unacceptably high rate. Thousands of revision surgeries have taken place because the metal-on-metal Depuy ASR hips failed. Second, in your specific case you are suffering injury; namely, pain and elevated metal levels in the blood (and you do not yet know if other complications are developing). Third, even if your revision surgery occurred after January 31, 2015, you were still injured by a defective product. In the eyes of the law, your claim should be as valid as the person who received revision surgery on July 15, 2013 or January 15, 2015. Fourth, even if you do not undergo revision surgery, you may possibly have a valid claim against Depuy and Johnson & Johnson. If you can show injury—high metal levels, a loose acetabular cup causing pain, or other complications, you have compensable claims. Most people suffering these injuries will schedule revision surgery (and should) but the absence of revision surgery does not mean you have no compensable injury.
My Hunch
I would presume that Depuy and the plaintiffs’ executive committee will eventually agree to a third settlement agreement to cover those people who had revision surgeries after January 31, 2015. But even if this third agreement does not happen, each person who was injured by the Depuy ASR hip has a valid claim and should bring such a claim against Depuy and Johnson & Johnson (preferably with the help of a knowledgeable attorney).
Beware the Statute of Limitation
But with any valid personal injury claim, you must always be aware of the relevant statute of limitation (SOL) in your state. I have written about these statutes here. The SOL limits the amount of time a person is permitted to bring a lawsuit after an injury, including a physical injury from a medical device like the Depuy ASR hip. Often the period of time begins to run when the injury is discovered. So in the hypothetical above, the injured person should argue that she was unaware of her injury until the blood work was done and her elevated metal levels were discovered. Still, ferocious battles often occur in court over whether the SOL has run on any claim. Don’t “sleep on your rights.”
The Takeaway: If you still have the Depuy ASR hip (or the Depuy Pinnacle hip) implanted, don’t presume you no longer have a claim against Depuy and Johnson & Johnson, but be vigilant and bring your claim as soon as you are aware you were injured by the Depuy artificial hip.
Note: The information in this post regarding the Depuy ASR settlement agreements is publically available. No information in this post should be considered legal advice. Feel free to call me for more information: 919.546.8788.