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Federal ruling opens door for state filings of hip replacement lawsuits

Almost 1,500 cases tied to the defective hip implants produced by Indiana-based DePuy Orthopaedics Inc. have been funneled into a federal court in Ohio, but Wisconsin personal injury lawyers now have the option of keeping claims closer to home.

That is potentially good news for plaintiffs looking for a quicker resolution to claims against Johnson & Johnson Inc., DePuy and their subsidiaries for injuries caused by the failure of the now-recalled DePuy ASR XL Acetabular Hip Replacement System.

A June ruling in the U.S. District Court for the Eastern District of Wisconsin opened the door for plaintiffs’ lawyers to file and keep cases in state court, instead of having them consolidated in lengthier multi-district litigation.

Kevin Martin

“It’s certainly breathed new life into this option,” said attorney Kevin Martin of Cannon & Dunphy SC.

Previously, any claims filed in Wisconsin state or federal court against defendants in the hip litigation ended up as part of the multi-district litigation, which is designed to share discovery costs and decrease the burden on local counsel that would otherwise individually try similar cases.

But multi-district litigation often can take years to resolve, Martin said, whereas state courts could proceed at a swifter pace because they’re not bound by the timelines set in federal court.

That was the primary motivation for challenging a move to federal court, said Kenosha attorney Phillip Godin, whose client, Letitia Malkmus, alleged injuries as a result of the defective implant and filed suit in circuit court.

On June 13, federal magistrate judge Aaron Goodstein granted Malkmus’ motion to return her case to Kenosha County Circuit Court on the grounds that a local distributor of the defective hip replacement could be liable for damages under Wisconsin’s products liability law.

“We anticipate we will go to trial within a year,” said Godin, of Godin Geraghty Puntillo Camilli SC. “That isn’t something we’d expect in the MDL (multi-district litigation).”

According to the court order, Madison-based TRP & Associates LLC is alleged to be the exclusive distributor of DePuy’s prosthetic devices in Wisconsin. The order alleges the company failed to disclose that the ASR product was prone to failure and that a sales representative was present during two surgeries performed on Malkmus.

If TRP is found to have contractually assumed DePuy’s duties to warn surgeons about the defective nature of the product, the distributor could be held liable for damages in state court, Martin said.

He said the metal-on-metal defective replacements have been used by more than 93,000 patients worldwide.

DePuy recalled the product Aug. 24, 2010, after data revealed that within five years of implant, the ASR system failed at a rate of 13 percent, or more than one out of every eight patients.

Effects of the faulty hip replacements have included infection, bone fractures and increased chromium or cobalt levels in the blood stream due to tiny metallic fragments shearing off of the system.

But some are skeptical that trying cases in state court will be any more efficient than federal court.

Victor Harding

Personal injury lawyer Victor Harding opted not to challenge a move from Milwaukee County Circuit Court to the Eastern District for the cases he filed because he expects state court judges will stay proceedings until progress is made at the federal level.

“If I am a judge, why sit and reinvent the wheel when it’s already being reinvented in the Northern District of Ohio,” said Harding, of Warshafsky, Rotter, Tarnoff & Bloch SC. “That is the way I see things going.”

Martin said Waukesha-based Cannon & Dunphy has yet to file any claims, but when they do, choice of venue will weigh efficiency against cost.

One of the reasons multi-district litigation could be a better option, he said, is the decreased financial burden on clients.

“If you file in Wisconsin, your plaintiff is going it alone,” he said, “and going to bear the full brunt of the economic burdens of prosecuting the case.”

At this point, 18 million pages of documents have been pulled for evaluation in the multi-district litigation and 750,000 have been produced and analyzed by the plaintiffs’ steering committee.

Martin said he anticipates about 1 million pages of documents will be produced each month in the multi-district litigation, with depositions slated to begin in late September.

Godin also acknowledged the risks of keeping the case in Kenosha, but said his client deserves a jury of her local residents to decide the outcome.

“Basically, our client feels she is entitled to remedy in the county in which she lives,” he said. “This is where she’s undergone her surgeries and where her peers reside.”

Jack Zemlicka can be reached at [email protected].

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