On November 19, in open federal court in Toledo, Ohio, Johnson & Johnson agreed to pay at least $2.475 billion to settle thousands of lawsuits over its recalled hip implants.
Johnson & Johnson Settlement Details
The settlement will impact folks who have had a DePuy ASR hip implant, that was removed or revised before August 31, 2013, it is estimated that would affect approximately 8,000 plaintiffs.
The settlement will be split into two parts. Part A, will guarantee a payment base of $250,000 that can be reduced downwards for mitigating medical factors such as age at implant (older patients will get less), patients smoking at the time of their implant will get less than non smokers, heavier patients as determined by their body mass index will get less than lighter patients, patients who have had multiple prior hip surgeries, prior to the DePuy ASR implantation will have a reduced settlement. Part A settlement will be serviced out of $2 Billion which has been ear marked for this segment.
Part B, will include medical factors that will increase the base settlement, such as medical complications during or after the DePuy ASR explant such as heart attacks, strokes, pulmonary embolism, deep vein thrombosis, folks who have had a bilateral DePuy ASR explantation etc. Part B settlement will be serviced out of $475 Million which has been ear marked for this segment.
Unacceptable DePuy ASR Hip Failure Rates
The company recalled 93,000 ASR hip implants worldwide in August 2010, saying 12 percent failed within five years. Internal J&J documents show 37 percent of ASR hips failed after 4.6 years. In 2012, the failure rate in Australia climbed to 44 percent within seven years.
Under the settlement terms, plaintiffs will have to opt in, fill out the special application forms and have them returned to the defense settlement counsel by first week of January 2014. Then by April 2014, in order to qualify for the Part B segment, patients will have to supply supporting medical records and evidence of medical complications.
Johnson and Johnson wants 94% of plaintiff participation and the company has the right to walk away from the settlement by June 2014. If all the conditions are met then the company anticipates funding and distributing the settlement amounts by July/August time frame.
All of these dates are tentative, as in any Mass Tort litigation, they are subject to last minute changes and extensions, depending on circumstances..
The settlement doesn’t prevent patients who develop future hip failures from seeking compensation and that may add billions of dollars to the ultimate value of the settlement. J&J also agreed to pay back third party insurance carriers, medicare, medicaid and cover other medical expenses incurred during the removal or revision of the hip implant.
What was the problem with DePuy ASR?
J&J pushed the metal-on-metal implants aggressively, which was first sold in the U.S. in 2005, as a new design that would last 20 years and offer greater range of motion.
Patients claimed that the metal-on-metal implant caused dislocations, pain and revision surgeries. The lawsuits alleged that debris released by the grinding action of the component parts from the chromium and cobalt device caused tissue death and increased metal ions in the bloodstream. This release of metal debris and increased chromium and cobalt levels in the blood, caused a form of blood poisoning known as metallosis.
The company faces a total of about 12,000 suits filed in federal courts and state courts in California, Illinois and New Jersey. The settlement covers the more than 7,500 patients who had surgery to have DePuy hips removed. The remaining claims were filed by patients who haven’t yet had revision surgeries.
The consolidated federal case is In re DePuy Orthopedics Inc., ASR Hip Implant Products Liability Litigation, 10-MD-2197, U.S. District Court, Northern District of Ohio (Toledo).