Joining the hip recall fight

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Nearly seven months after a massive recall of defective hip replacements, attorneys in Wisconsin are starting to file claims in federal court on behalf of affected clients.

The delay in filing is due in part to the time it has taken to collect medical information from plaintiffs, but also because no federal cases will be tried in Wisconsin, at least initially.

Cases filed locally will be filtered to a federal court in Ohio as part of the multidistrict litigation order to consolidate more than 250 claims already filed throughout the country concerning hip replacements from DePuy ASR.

“Should these cases have to be transferred back to the Eastern District and be tried, and there is that potential, we’re going to end up with a massive number of trials,” said attorney Kevin Martin of Cannon & Dunphy SC.

The Brookfield-based firm has yet to file any cases, but Martin expected several dozen will eventually make their way into court, once the statute of limitations is set.

Typically, there is a three-year window for product liability claims, but yet to be determined is whether the date of the recall or the date of when the product was determined to be defective will trigger the timeline.

“Common sense is the timeline starts on the date of the recall, but the potential argument on the defense side is as soon as people started having problems, which is a ridiculous argument, but one they may intend to make,” said attorney Tim Trecek of Habush Habush & Rottier, Milwaukee.

Attorneys await an April order from the federal court in Ohio to set the discovery schedule for the cases included in the multidistrict litigation, which was established in January.

Last August, DePuy’s parent company, California-based Johnson & Johnson, issued a recall of two hip replacement products after data showed that within five years one in eight of the affected patients needed a revision surgery.

In addition, some who received defective DePuy hip replacements also were found to have toxic levels of chromium or cobalt in their bloodstream, a result of tiny metal fragments shearing off the top of the implant.

About 93,000 people around the world received one of the implants.

While it is unknown how many Wisconsinites have been affected, attorneys said nationally, numbers continue to rise.

Trecek said Habush expects to file between 70 and 100 cases within the next two months.

Similarly, attorney Victor Harding of Warshafsky, Rotter, Tarnoff & Bloch SC, Milwaukee, has already filed one case in Eastern District Judge Lynn Adelman’s court. He plans to file several more in the coming weeks, he said.

Harding is among those who said the cases could return to Wisconsin to be tried individually, if no resolution is reached in Ohio.

Currently, two steering committees designated by the court, one for Johnson & Johnson and another for the plaintiffs, are in the process of determining the scope of discovery relevant to all cases assigned to the Ohio court.

Those universal elements include what DePuy should have known and when, as well as how quickly did the company respond.

At the same time, discovery will continue at the local level with the possibility that a settlement could be reached prior to trial.

“At any time, a global settlement could be reached, or they could take a couple of cases and try them in Ohio and see how they shake out,” Harding said. “If they are not settled, they will be kicked back to local jurisdictions for trial.”

Martin is optimistic, he said, that the cases will be resolved sooner rather than later, based on his experience in other medical recall cases and the evidence against DePuy.

One of the defenses being raised is that surgeons improperly inserted the hip replacement cups, an assertion Martin called “nonsense.”

“That defense will backfire on them,” he said. “The surgeons who have done those procedures, especially those in Waukesha, are top notch and the plaintiffs have nothing negative to say about them at all.”

Martin expected the steering committee to endorse one of two routes: either a mediation of bellwether cases in an attempt to agree on a settlement amount, or a lengthy discovery to determine liability and reach a global settlement amount.

Martin represented Wisconsin residents in 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 recalled the drug in 2004 and agreed to a $4.85 billion settlement in 2007. Last year, the company completed payment of more than 3,400 claims to families of Vioxx users who died of heart attacks or strokes.

“In the Vioxx cases, they did trials after about two years of discovery to decide liability,” Martin said.

A similar timeline is possible with the DePuy cases, Harding said, but he cautioned that the cases are still far from a sure thing and momentum could swing depending on what is revealed during discovery.

“Who knows what smoking guns are out there?” he said. “It will depend on whether the defense feels the threat of liability, rather than litigate these cases until hell freezes over.”

Jack Zemlicka can be reached at [email protected].

Portions of this story came from the Associated Press.