Patients with the DePuy ASR XL hip implants that were implanted by orthopedic surgeons in Washington State between 2005 and 2010 should be aware that the statute of limitations is nearing. Patients with the defective hip implants are advised to seek the counsel of an attorney to protect their rights.
The ASR XL Acetabular hip implants were manufactured by DePuy Corporation, a subsidiary of the giant Johnson & Johnson. The ASR hip implants were manufactured using a metal-on-metal design which was found to have a high failure rate and injured many patients.
DePuy’s ASR XL implant system was implanted by Washington surgeons for use in total hip replacement surgeries between 2005 and until August, 2010. The hip implants were banned in some European countries and Australia long before DePuy Corporation removed them from the American marketplace and provided a warning to to orthopedic surgeons on August 24, 2010. The recall of the ASR XL hip implant system was reported in the media and the FDA issued warnings regarding its safety.
Washington law requires an injured party claiming damages from a harmful medical device product, such as the ASR XL, to file a lawsuit within three years from the date that the claimant discovered, or in the exercise of due diligence should have discovered, that the medical damages and harm suffered were caused by the device. An aggrieved patient suffering injury from the medical device must properly commence a lawsuit against its manufacturer within this three-year period or risk forever being barred from prosecuting the claim. The exact date that the three-year period begins to run for a given product is uncertain and will be determined based upon the specific facts involved in each case. Potential DePuy implant plaintiffs should be aware that the day before the three-year anniversary of the ASR XL’s recall is next month on August 23, 2013.
The statute of limitations does not run from the date the implant was used at surgery, but begins to run when the patient has sufficient knowledge that they have a defective implant and that it is probably causing them harm. The applicable statute requires the patient to use due diligence and to reasonably investigate the facts of their situation. Once a plaintiff knows that they have suffered harm from the product, they must file a lawsuit within three years.
During the five years that the ASR XL was in use, surgeons implanted approximately 93,000 implants in patients undergoing total hip replacement surgery. Approximately 1/3 of these implants were used in the United States.
There are currently more than 10,750 lawsuits pending against DePuy alleging that the implants were defective medical products and therefore subject to products liability claims by the receiving patients. The vast majority of the lawsuits are in federal court and centralized for pretrial matters in a multi-district litigation court in the Northern District of Ohio. A fewer number of cases have been filed in the state courts of California, Illinois, and New Jersey.
The first lawsuit tried against DePuy took place in Los Angeles, California in March of this year. The jury returned an $8.3 million verdict for the 64-year-old plaintiff who suffered tissue damage and kidney failure caused by the metal ions that had leached from the implant. In the second trial, which occurred in an Illinois state court in Chicago the following month, the jury sided with DePuy, finding that the plaintiff did not sufficiently prove that his medical injuries were caused by the defective implant instead of a pre-existing autoimmune disorder.
Trials are scheduled to start against DePuy in federal court this fall. Those involved in the litigation anticipate that after these cases are completed, DePuy and its parent corporation, Johnson & Johnson, will begin a process of systematically settling the filed cases.
The settlement amounts will be paid from a $3 billion reserve fund set aside by Johnson & Johnson and earmarked for this purpose. Because the implant lawsuits are not part of a class action, each individual settlement amount will be based upon the facts and merits of each separate claim.
Because both DePuy and Johnson & Johnson admit that approximately 50% of all of the ASR XL implants will fail within the first five years of their use, and other medical studies now project a failure rate of almost 90%, it is important for persons who have this implant to take steps now to protect their legal rights by commencing a lawsuit if they are having difficulties with the implant.