A series of lawsuits filed in state and federal courts around the country over allegedly defective DePuy ASR Hip Replacement devices could eventually be consolidated in federal court, but local attorneys involved say it would be better for their clients if the lawsuits stay in Wisconsin.
Last month, plaintiffs’ attorneys filed a motion with the U.S. Judicial Panel on Multidistrict Litigation (MDL) to consolidate all lawsuits before a federal judge in New Jersey, but DePuy objected to the venue and requested that the cases be heard in a court closer to its Indiana headquarters.
The MDL panel is expected to hear oral argument over the litigation when it meets on Nov. 18.
While consolidation under one judge would provide consistency and save on duplicative discovery costs, some local attorneys would prefer the cases remain in state court.
“I think ultimately, recovery for individual clients is better,” said Habush Habush & Rottier attorney Timothy S. Trecek. “In my experience, it’s a better system for our individual clients to obtain full compensation.”
More than a dozen class action and individual suits are pending and several Wisconsin personal injury law firms are being contacted by a growing number of people who claim that the metal-on-metal hip replacement device was defectively designed and that DePuy knew of the problem, but failed to notify patients or orthopedic surgeons.
Within the last three weeks, Habush agreed to represent “15 to 20” people affected by the hip replacement devices, although Trecek said the firm is still in the process of determining the most advantageous place to file for each client.
In August, DePuy’s parent company, Johnson & Johnson, issued a recall of two hip replacement products after data showed that within five years one in eight of the affected hip replacement patients needed a revision surgery.
About 93,000 people around the world received one of the recalled implants.
Given the high number of people affected and based on previous experience with medical product liability cases, Cannon & Dunphy attorney Kevin R. Martin said it’s likely that claims could head into multi-district litigation.
“In my experience, the majority of these types of cases do get transferred to federal court where the courts select cases to try and test the waters,” he said.
Martin represented Wisconsin residents in one of the largest MDL cases in history, which involved thousands of lawsuits against drug maker Merck & Co. for the painkiller Vioxx. Use of the drug allegedly doubled the risk of heart attacks and strokes.
The company agreed to a $4.85 billion settlement in 2007 and earlier this year completed payment of more than 3,400 claims to families of Vioxx users who died of heart attacks or strokes.
Among those who accepted their settlement share were Martin’s clients, who could have rejected the settlement and pursued the case in Wisconsin’s federal court, where the cases originated.
“None of the cases I handled were transferred back to the Eastern District to be tried,” Martin said. “I think those decisions are made on a case-by-case basis.”
Martin said litigation stemming from the hip replacement devices will likely meet certain thresholds, such as damages exceeding $75,000, to be consolidated at the federal level.
His firm is also evaluating claims and said that generally, plaintiffs prefer to have their damages assessed by jurors within their own state.
“As a plaintiff’s attorney, you advise what is best for your client,” Martin said.
Warshafsky, Rotter, Tarnoff & Bloch recently filed a class action suit stemming from the hip replacement devices in Wisconsin state court, although attorney Victor C. Harding said in this situation, MDL is probably the best course of action to reach a worthwhile outcome.
To bring a case against Johnson & Johnson would likely be ill-advised to the point that litigation expenses could ultimately outweigh the damages, he said.
“Pursuing one DePuy case without MDL would be cost-prohibitive,” Harding said. “If you’ve got 5,000 cases, that makes it worthwhile and a true benefit to the client because money is diverted to them, rather than to all your costs.”
Even if a settlement is reached in MDL, plaintiffs still have the ability to reject the amount and try the case back in state court.
“You can always take your shot, but it’s kind of a tightrope dance,” he said. “In this kind of case, it all depends on how it’s put together.”
The Associated Press contributed to this story. Jack Zemlicka can be reached at [email protected].