September

The judge in charge of the multidistrict litigation has delayed the hearing for the faulty DePuy hip replacement systems to allow additional time for both parties to complete the discovery process.

The first Federal multidistrict litigation (MDL) hearing for the faulty DePuy hip replacement systems was delayed again last week after the parties in McCracken -v- DePuy (Case No 1:11 dp 20485) were permitted more time by the U.S. District Judge in charge of the hearing – David A. Katz.

The first `Bellwether` hearing for the faulty DePuy hip replacement systems has now been rescheduled for September 24th, and will concern the hip dislocation suffered by Ann McCracken (57) from Rochester in New York, instead of the injury sustained by the original plaintiff Fate Dorney-Madgitz.

Ann had a DePuy ASR XL metal-on-metal hip replacement system implanted in August 2009, but had to undergo revision surgery in January 2011 after she had suffered a dislocated hip. Her claim against DePuy Orthopaedics is based on testimony from her orthopaedic surgeon who alleges there was evidence of metallosis when he removed the DePuy implant.

In October 2011, Ann had to endure a further painful operation to implant a second device which would restrict the movement of her hip and prevent future dislocations. This second implant has reduced Ann´s mobility further and will result in her present hip replacement system wearing out quicker – resulting in future revision surgery being required.

The latest delay stems from Judge Katz´s decision that the worldwide recall of the faulty DePuy hip replacement systems should not be referred to in the hearing – not only in order that Ann´s claim be heard on its individual merits, but also because the judge agreed that any reference to the DePuy recall might dissuade other companies from voluntarily withdrawing their potentially dangerous medical devices.

Ann´s hearing for the faulty DePuy hip replacement systems is the first in a series of Federal cases which will establish the relative strengths and weaknesses of the plaintiffs´ claims and DePuy Orthopaedic´s defence. If Ann´s case – and other Bellwether trials still to be heard – helps to determine a yardstick for compensation settlements, DePuy Orthopaedics are likely to negotiate settlements of compensation with the other 7,800 plaintiffs who have included their own claims in the multidistrict litigation.

However, if the outcome of the ‘Bellwether’ trials does not establish a scale against which compensation for the faulty DePuy hip replacement systems can be measured, the remaining DePuy compensation claims will be referred back to the US District Courts in which they were originally filed – with each hearing for the faulty DePuy hip replacement systems heard separately.

This would also be the scenario in Ireland, where plaintiffs who have made claims for compensation against DePuy Orthopaedics, Johnson & Johnson and the Health Service Executive would have to pursue their legal action individually through the courts.