LOS ANGELES, CALIFORNIA – In the first of more than 10,000 lawsuits to go to trial, a Los Angeles County jury today (March 8, 2013) awarded $8.3 million to 65-year-old Montana man, Loren Kransky, who claimed he was injured by the recalled DePuy ASR artificial hip.
A doctor surgically implanted Kransky with the ASR in December 2007. Another surgeon removed the device four years later because, according to trial experts retained by Kransky, defects in the design of the ASR caused it to shed toxic metal debris that killed bone and tissue around his hip joint.
DePuy began selling the ASR overseas in 2003 and in the U.S. in early 2006 without first conducting clinical trials. Claiming the ASR was safer and more durable than competing artificial hips, DePuy charged a premium for the device and sold 95,000 devices worldwide, with about 35,000 implanted in Americans. The company formally recalled the ASR in August 2010 after a British medical regulator publicly reported that the ASR failed at much higher rates than expected.
“The design of the ASR was deeply flawed, unproven and unsafe. DePuy should have never sold a single one,” said John Gomez, a lawyer for Mr. Kransky.
The suits are projected to cost DePuy Orthopaedics, a division of the medical products giant Johnson & Johnson, billions to resolve.
“This is a victory for Mr. Kransky and thousands of other badly injured ASR patients who have yet to get their day in court. Jurors across the country will return similar verdicts until J&J takes full responsibility,” said Brian Panish, another attorney for Kransky.
Jurors were shown internal company documents, including DePuy’s own confidential estimate that a staggering 37% of ASR patients will undergo a second operation to remove the ASR and replace it with a safe device in four and one half years or less. The rate is expected to climb even more dramatically over time. By comparison, the failure rate of some other artificial hips is less than 2% over the same period.
Jurors also learned that beginning in 2005, a number of individual surgeons reported to DePuy that they believed the ASR was flawed and hurting their patients. DePuy executives responded by blaming their “surgical technique” for any poor outcomes, even calling one of the doctors a “hack.”
“DePuy has yet to reach out to these honest, caring and capable medical professionals and tell them, ‘We should have listened to you. You were right. We were wrong to blame you.’ ” Said attorney Michael Kelly, who also represented Kransky.
At trial, DePuy’s engineers admitted under cross-examination that they made mistakes when they designed the ASR, and that when they re-evaluated the ASR in 2007 they determined the device shed massive amounts of metal debris even when implanted as instructed. Engineers recommended an emergency redesign to make the ASR safer. Internal company documents, however, showed that DePuy’s marketing executives hid this information from surgeons and “killed” the redesign proposal because it would not be profitable. They decided instead to quietly discontinue the ASR and convince surgeons to switch to other DePuy products as they sold off existing inventory.
Expert witnesses retained by DePuy testified that the ASR was safe, not defective and did not harm Kransky. They attributed Kransky’s problems to his overall poor health and mistakes made by his surgeons. One expert, toxicologist Dennis Paustenbach, testified that the metal debris shed from the ASR was not harmful to the body’s organs. He admitted under cross-examination by Panish, that DePuy had paid his firm more than $5 million and that he was known as “industry’s go-to guy.”
Walkup, Melodia, Kelly & Schoenberger
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San Francisco, CA 94108
Panish, Shea & Boyle
11111 Santa Monica Blvd, Los Angeles, CA 90025
Brian Panish Panish@psblaw.com
Gomez Trial Attorneys
655 West Broadway, Suite #1700
San Diego, CA 92101
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