Research Now Suggests Even Higher Failure Rate of ASR

After two British surgeons released studies predicting that 32 to 49% of patients implanted with the recalled DePuy ASR TM hip replacement device will need to undergo a painful revision procedure (invasive surgery to replace the defective device) within six years of their initial operation, [1] attorneys from California and elsewhere in the United States are moving forward with obtaining court-ordered deposition testimony from current and former DePuy employees.

The team of lawyers, including Walkup partners Michael Kelly and Matthew Davis, are also reviewing the 25 million documents which the defendants have so far turned over in the litigation. So-called "protective orders" are in place in all jurisdictions that prevent the unauthorized disclosure of the testimony of company witnesses and the contents of the company documents without a court order. For that reason, it is not possible to quote any of the information obtained to date, other than to confirm that progress is being made in moving the large number of cases on file in California towards trial dates, while at the same time constructing a plan for individual case resolution that fully and fairly compensates each injured ASR patient based upon his or her own peculiar harms, losses and out-of-pocket expenses.

Within the last three months, sworn deposition testimony has been obtained in Indiana (location of DePuy's U.S. corporate headquarters), England (site of DePuy's European headquarters) and New Jersey (home of Johnson & Johnson's corporate headquarters) from various corporate employees, managers and scientists who were involved in the development, marketing and recall of the failed ASR metal-on-metal prosthesis. Information gathered in this way is generally referred to as "discovery" in the civil courts. Such discovery permits the attorneys representing injured ASR patients to prepare their cases for trial with a clear understanding of the evidence on important issues relating to design defect, inadequate warnings and instructions, and negligent failure to carefully follow up on reports of injuries once the device had been implanted in patients.

Our product liability partners, including Michael Kelly, Matthew Davis, Douglas Saeltzer and Khaldoun Baghdadi, remain hard at work on behalf of the more than 1,400 ASR patients who are part of the California JCCP (Judicial Council coordinated proceeding) pending in the San Francisco Superior Court. Motions before the JCCP judge (Hon. Richard Kramer) to set cases for trial are expected to be made in the next 6 to 8 weeks. Over that time additional deposition testimony from knowledgeable Johnson & Johnson and DePuy executives will continue to be taken. Trial dates have not been set for any cases in the JCCP or the coordinated federal MDL litigation which is venued in Toledo, Ohio.

Regulators in the United States and the United Kingdom continue to explore the complications, side effects and long-term consequences of the now-recalled ASR hip prosthesis. Recent articles in medical journals have begun to identify possible systemic health risks beyond the hip joint associated with high levels of cobalt and chromium particles and ions, the kind of metal debris generated as a result of the defective hip implant's design. Further medical research is ongoing to determine if any long-term ill effects from these elevated heavy metal blood levels should be anticipated. [2] Walkup lawyers, as well as other attorneys dedicated to investigating the medical and scientific issues in both the state and federal litigation, are working closely with medical, toxicological and epidemiological experts to obtain a better understanding of these issues.

New cases are being filed on a regular basis as more and more ASR patients are told by their doctors that the device is producing unacceptably high levels of metal debris in their tissue and blood. Although no formal determination has been made as to how many lawsuits may ultimately be brought, it is known that roughly 33,000 devices were implanted in United States patients between late 2005 and the date of the recall, August 24, 2010. To date, about 1,500 individual lawsuits have been filed in California. California courts have jurisdiction over any case involving a US patient, regardless of that patient's state of residence, because two of the physician-designers who helped design and promote the ASR are California residents. Dr. Thomas Schmalzried is affiliated with the Joint Research Institute in Los Angeles, and Dr. Thomas "Tad" Vail is the Chair of Orthopedics at UCSF.

It has now been forecast that almost half of all ASR patients will need to undergo painful revision surgery within six years of their initial operation. Since patients were implanted as late as August of 2010, it is reasonable to believe that some patients will not become symptomatic, or be told by their doctors that they need revision, until as late as 2016.

For DePuy ASR patients who have only recently been advised that they were implanted with the defective device, or have only recently been advised that they should undergo revision surgery, or schedule sophisticated blood tests and MRI scans, our medical product liability team is available to consult with them on their legal options free of charge.

Potential clients should call 415-906-3764 and ask to speak to Matthew Davis, Valerie Rose or Michael Kelly. Alternatively, injured patients interested in learning about their legal rights can email us at mdavis@walkuplawoffice.com.


[1] National Institutes of Health, " Accelerating failure rate of the ASR total hip replacement," Langton DJ, et. al, 2011; British Hip Society, " June 2011 Newsletter."

[2] The Telegraph, "Hip replacement patients could face increased risk of cancer," Laura Donnelly, Feb. 2012