This article originally appeared in sibling publication The National Law Journal.
A Los Angeles jury has awarded a retired prison guard more than $8.3 million in the first trial against DePuy Orthopaedics Inc. over its recalled ASR XL hip implants.
The verdict was announced on Friday following about a week of deliberations following a trial that began on January 25 in Los Angeles County, Calif., Superior Court. Although not a bellwether trial, the proceeding was closely watched. The device has generated more than 10,000 lawsuits against DePuy.
Plaintiff Loren Kransky asserted that the device, which left residue in his hip socket, gave him metal poisoning. His lawsuit was given preference for trial because he has cancer.
The jury found that the ASR XL hip implant was defectively designed and awarded $8,338,000 in compensatory damages. But the jury rejected Kransky's bid for punitive damages, which had been estimated at as much as $179 million, and his claim that Warsaw, Indiana-based DePuy, a subsidiary of Johnson & Johnson in New Brunswick, New Jersey, failed to adequately warn of the risks associated with its product.
"This is the first of many days of reckoning for DePuy and Johnson & Johnson," said Brian Panish of Panish, Shea & Boyle in Los Angeles, who represents Kransky. "We will not rest until they are held fully accountable for the thousands of patients they harmed."
Lorie Gawreluk, a DePuy spokeswoman, issued a formal statement immediately following the verdict: "We believe ASR XL was properly designed, and that DePuy's actions concerning the product were appropriate and responsible. We plan to appeal the jury's decision on design defect pending the outcome of post-trial motions. We believe we have a number of valid grounds for appeal, notably that the court didn't let the company tell the jury about the Food and Drug Administration's review and clearance of the device."
DePuy is represented in the nationwide litigation by Tucker Ellis; Los Angeles partner Michael Zellers handled the Kransky trial.
In 2010, patients in Europe began to report problems with the ASR device that required them to undergo additional surgeries. More than 93,000 ASR devices have been implanted worldwide.
DePuy voluntarily recalled the device on August 24, 2010. On May 6, 2011, the Food & Drug Administration, which regulates medical devices, ordered 21 manufacturers of metal-on-metal hip implants to conduct surveillance on their products and to assess their safety.
Most of the lawsuits against the Johnson & Johnson subsidiary over the ASR product, a metal-on-metal device, have been consolidated in multidistrict litigation in Toledo, Ohio. The first trial is scheduled for May. More than 1,000 cases—including the Kransky lawsuit—were filed in state courts in California and have been consolidated in the Superior Court of San Francisco County, California. Another 100 or so are pending in the Superior Court of Bergen County, New Jersey.
DePuy said it has reimbursed patients for testing and other expenses related to the ASR device and has provided more information to surgeons.
"DePuy is committed to improving patients' lives, and the company regrets that the ASR Hip System did not perform as expected for some patients," Gawreluk wrote. "Since the recall, DePuy has worked to provide patients and surgeons with the information and support they need. Joint replacement surgery is one of the greatest medical advances of our time, and we remain dedicated to serving patients who need this important treatment."
DePuy faces additional litigation over its Pinnacle device, another metal-on-metal hip implant. About 300 lawsuits have been coordinated in multidistrict litigation over that device in federal court in Dallas.
