By BARRY MEIER
Published: March 8, 2013
A jury in
Los Angeles on Friday ordered Johnson & Johnson to pay more than $8.3 million in damages
to a Montana man in the first
of more than 10,000 lawsuits pending against the medical products maker
in connection with a now-recalled artificial hip.
The 12-member panel, however, declined to issue
punitive damages, saying the company’s DePuy orthopedics unit, which made and
marketed the all-metal device, did not act with fraud or malice. The implant,
known as the Articular Surface Replacement, or A.S.R., was recalled in
mid-2010.
In a statement, the company described the verdict as “mixed”
and said that it planned to appeal the damage award. It disputed the finding by
the jury that the A.S.R. was defectively designed.
It was impossible to say what the verdict, which
came in a Los Angeles state court, would mean for other
A.S.R.-related cases. A trial on a second lawsuit is scheduled to begin Monday
in Chicago, with other cases expected to proceed later this year.
In its decision, the panel ordered Johnson &
Johnson to pay the case’s plaintiff, a retired Montana prison guard, Loren
Kransky, $338,000 to cover his medical expenses. It also ordered him to be paid
$8 million to cover his pain and emotional suffering.
Some
lawyers and industry analysts have estimated that the suits ultimately would
cost Johnson & Johnson billions of dollars to resolve.
Thousands of the individual cases have been
consolidated into a large proceeding in a Federal District Court in Ohio and a
resolution of that action could provide a framework for settling the bulk of
the cases and determining awards to patients.
The A.S.R. belonged to a class of once widely
used hip replacements whose cup and ball components were both made of metal.
It was first sold by DePuy in 2003 outside the
United States for use in an alternative hip replacement procedure called
resurfacing. Two years later, DePuy started selling another version of the
A.S.R. for use in the United States in standard hip replacements that used the
same cup component as the resurfacing device.
However, the A.S.R.’s design caused the cup and
ball to strike against each other as a patient moved, resulting in the shedding of metallic debris.
That debris inflamed and damaged tissue and bone, causing pain and, in some
cases, permanent injuries to patients.
Today, all-metal hips like the A.S.R. are rarely
used by surgeons because most models suffered from similar problems. But data from orthopedic
registries suggests that the A.S.R. was far worse than many competing
products.
An
internal Johnson & Johnson document introduced at the Los Angeles trial
estimated that close to 40 percent of patients who received an A.S.R. will need
to undergo a second operation within five years of the first to have the
implant removed and replaced. In a recent filing with the Securities
and Exchange Commission, Johnson & Johnson said that there are 10,750
A.S.R. lawsuits.
Traditional artificial hips, which are made of
metal and plastic, are expected to last 15 years or more before needing to be
replaced, and the normal
replacement rate for early unexpected failures is about 5 percent after five
years.
The lawsuit heard in Los Angeles was not
originally scheduled to be the first over the A.S.R. but it was moved up
because Mr. Kransky was found to have terminal cancer. Before the start of the Los Angeles
trial, which began in late January, Mr. Kransky’s lawyers had not expected him
to live through it.
Internal
Johnson & Johnson documents that became public during the trial indicated
that company executives were told by surgeons, who were also paid consultants
to the device maker, that the design of A.S.R. was flawed. In addition, some
surgeons also urged the device maker to slow sales of the implant or stop them
completely, records show.
In the case, evidence was also presented that
showed that Johnson & Johnson considered redesigning the A.S.R. to reduce
its problems, but then abandoned the project because the implant’s sales did
not justify the costs of the redesign. One of the DePuy executives involved in
that decision was Andrew Ekdahl, who now heads Johnson & Johnson’s
orthopedics division.
Johnson & Johnson executives like Mr. Ekdahl
have said throughout the A.S.R. episode that they acted responsibly and moved
to recall the device in 2010 when data from an orthopedic registry in Britain
showed that its failure rate was higher than normal.
Before reaching its verdict Friday, the jury that
heard Mr. Kransky’s case deliberated
for more than five days. Mr. Kransky’s lawyers, citing what they
described as the unethical behavior of DePuy executives in failing to warn
doctors and patients of the device’s defects, asked jurors to punish Johnson
& Johnson by awarding their client $36 million to $144 million. Jurors
declined to do so.
Nonetheless, lawyers representing Mr. Kransky
hailed the verdict.
“This is a victory for Mr. Kransky and thousands of other badly damaged
A.S.R. patients who have yet to get their day in court,” Brian Panish,
one of Mr. Kransky’s lawyers, said in a statement. “Jurors across the country will return similar
verdicts until J.&J. takes full responsibility.”
A DePuy spokeswoman, Lorie Gawreluk, said in the
company’s statement that it planned to appeal Friday’s verdict, contending that
the A.S.R.’s design was not defective.
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