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Johnson & Johnson and DePuy Orthopaedics Inc. have agreed to settle complaints of recipients of an allegedly defective artificial hip.
The settlement means Rochester-area business owner Ann McCracken’s case will not be aired in court. Her complaint was to have been one of two bellwether cases whose outcome was to have determined the fate of complaints filed by some 7,000 recipients of ASR XL Acetabular System replacement hips. They signed on to class actions targeting the firms.
A metal-on-metal device, the ASR replacement hip was particularly recommended to young, active patients before its manufacturers recalled, advising surgeons to remove devices they had implanted.
Attorneys for Johnson & Johnson and DePuy and plaintiffs’ lawyers began settlement talks just before the case was slated to go trial in an Ohio federal court in September. Plaintiffs’ attorneys announced that a deal had been struck Wednesday.
“I am happy that a settlement agreement has been reached,” said McCracken, owner of A Good Sign Co. “It feels good to be part of a process that has helped thousands of injured patients like me. I hope this result will lead medical device makers to be more careful in the future so that people do not have to go through what I’ve gone through.”
Represented by the locally based Faraci Lange LLP, McCracken sued the firms in 2011 in U.S. District Court in Rochester as one of 10 local plaintiffs. A 58-year-old single mother, she alleged DePuy and Johnson & Johnson knew ASR replacement hips were defective in 2009 when she had the first of several surgeries.
In court papers filed in Ohio, the firms denied any wrongdoing.
McCracken suffered two hip dislocations in 2011 after her second surgery her attorneys said earlier this year. A third surgery in the same year left her with permanently impaired range of motion and likely to need future surgeries.
The multi-part global settlement calls for plaintiffs who had an ASR device surgically removed by August 31 for reasons related to the manufacturers’ 2010 recall of the device to get a base amount of $250,000.
Smokers and obese plaintiffs whose habits or physical conditions might have contributed to the replacement hip’s failure, could see less. Others who developed specific complications related to revision could be paid more out of a separate pool of money.
The agreement also calls for Johnson & Johnson and DePuy to separately negotiate with Medicare and other non-patient parties to repay them for costs they incurred as a result of the ASR recall.
Faraci Lange currently represents more than 60 plaintiffs in ASR complaints and could continue to sign new ones.
“We get calls all the time from people who have been told that they must have the devices removed,” said Hadley Matarazzo, who along with fellow Faraci Lange attorney Stephen Schwarz represents McCracken and other ASR plaintiffs. “Nothing in the agreement prohibits individuals whose devices fail in the future from seeking compensation.”
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