Last week, a Los Angeles County jury awarded 8.3 million dollars to retired Montana prison guard Loren Kransky for pain and suffering and medical expenses he suffered from a defective artificial hip implant manufactured by a division of Johnson & Johnson, which has since been recalled. The implant is known as an Articular Surface Replacement or A.S.R., and was manufactured by the company’s Depuy orthopedics unit from 2003 until 2010, when Johnson & Johnson ordered a recall of the product. Mr. Kransky’s lawsuit was the first of approximately 10,000 that Johnson & Johnson is facing, with another trial set to start in Chicago on March 11, 2013, and numerous other cases scheduled for later this year.
The Depuy artificial hip is made of all metal, and the design would cause the cup and ball to rub against each other as the person moved, leading to some splintering of metallic debris, which caused damaged to tissue and bone, severe pain, and in some cases, permanent injuries to patients. The 12 member jury in Mr. Kransky’s case ordered the company to pay him 8 million for pain and suffering, and $338,000 for medical expenses. Defense lawyers for Johnson and Johnson were unable to overcome evidence which showed that the company was told by surgeons that the design of the Depuy implant was flawed. Consultants to the company had recommended slowing sales of the devices, which was ignored, and Johnson also been considering redesigning the implant but decided against this measure due to a costs benefits analysis that unimpressive sales of the implant did not justify the costs of the redesign.
The A.S.R. is part of a group of extensively used hip replacements with an all metal design, which replaced the design which used metal and plastic. Presently, all metal hips are rarely used by surgeons. Traditional hip replacements are expected to last 15 years before a replacement is recommended, and generally, their failure rate is approximately 5% after five years. Jurors in the Kransky case saw an internal memorandum that Johnson knew that 40% of patients who had an A.S.R. would require a second operation within 5 years to have the Depuy implant removed and replaced. The jurors deliberated for a full five days before reaching their verdict. Mr. Kransky’s lawyers had requested that the jury award him between 36 and 144 million, and award punitive damages to punish the company for intentional and egregious conduct. However, jurors declined to award punitive damages, and their verdict, while substantial, was certainly not anywhere close to the amounts requested of them. Mr. Kransky's case was expedited as he is suffering from terminal cancer and it was unclear if he would survive until the trial.
Thousands of the other cases against Johnson & Johnson have been consolidated into a class action in federal Court in Ohio. If those cases are settled, it may lead to an analysis of how to calculate the remaining plaintiffs’ damages and a basis for a settlement of the remaining cases. Despite dodging a proverbial bullet in the size of the Kransky verdict, Johnson & Johnson has announced that they will appeal and argue that the design of the Depuy implant was not defective. That could lead to a settlement of the Kransky matter in that if Mr. Kransky is that ill, he will probably not survive until the resolution of the appeal, which can take at least several months to a year for a decision in many Appellate Courts.