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Eight point three million dollars. That's a heck of a compensatory award for a single plaintiff, and Friday's massive verdict was the first of many expected in DePuy Hip Replacement lawsuits (an estimated 10,000 people have lawsuits pending, according to Walkup Melodia Kelly & Schoenberger, the firm that represented this plaintiff.) That is a lot of suits, and a lot of lawyers.
What was the problem with the hip? According to the hip-maker's recall website, some patients needed "revision surgery" after having Johnson and Johnson's metal-on-metal hip implanted. That may be putting it mildly. According to Bloomberg, the failure rate may be as high as 21 percent after four years to 49 percent after six.
The chromium and cobalt "metal on metal" design reportedly showed issues long before the 2010 recall. According to Walkup Melodia, the hip showed unacceptably high levels of metal wear in internal tests. DePuy also reportedly used only one implant angle in their tests, while knowing that surgeons and common medical practice required a variety of implant angles, depending on the patient's needs. This meant that the tests may have been even less indicative of the actual wear and tear experienced by implantees.
Despite a number of complaints by physicians worldwide from 2005-2008, DePuy continued to sell the defective hip design. An estimated 93,000 were sold before the company withdrew it from the market, initially due to "sales concerns." Shortly after that, they announced the recall. In later after-market studies, DePuy found that the hips would fail in as many as 37 percent of patients, which though less than Bloomberg's estimate, is still shockingly high.
Loren "Bill" Kransky was the first plaintiff to have his case go to trial. The trial was pushed forward due his ongoing severe medical concerns. Those medical concerns seemed to form the basis of Johnson & Johnson's defense, as they repeatedly cited his medical issues (kidneys, diabetes, cancer, and vascular disease) as the true cause of his problems, reports Bloomberg. The jury didn't buy it, however, and awarded him $8.3 million in compensatory damages, which included $338,136 for medical expenses and $8 million for pain and suffering.
That pain and suffering went beyond a simple "revision surgery." Kransky was in constant pain and believed that the hip might have been poisoning him. He was faced with a choice: slow death by poison or the possibly quick death that would come from a twenty-fifth surgery. He chose the latter and survived. Before the surgery, he couldn't rehabilitate properly after a stroke, couldn't use the bathroom freely or sleep, and was forced into a wheelchair for some time.
Despite the verdict (including the failure to award punitive damages), as one might expect, the case is far from over. J&J indicated their plan to appeal, especially the decision not to allow evidence of the FDA's approval of the device. According to the plaintiff's firm, even that testing was a sham, as DePuy pushed the hip through expedited 501(k) review by falsely claiming that it was substantially similar to their existing Pinnacle hip design.
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