DePuy ASR Hip Recall Cases Consolidated in Multidistrict Litigation

Posted Thu, 03/24/2011 - 12:44

In August 2010 DePuy Orthopaedics, Inc., a Johnson & Johnson subsidiary, issued a recall of its ASR XL Hip Replacement System. As a result, thousands of lawsuits against DePuy were filed in courts all over the country. Complex product liability actions, such as the one following the DePuy Recall, require extensive discovery and complicated pre-trial procedures. In order to handle these suits more quickly and efficiently a federal procedure called “multi-district litigation” (MDL) consolidates all civil actions involving one or more common questions of fact which are pending in different courts.

The United States Judicial Panel on Multi-District Litigation decides if consolidation should occur, and if so, to which court all the cases should be transferred. In December 2010, the Panel ruled to consolidate all federal district cases involving the recalled DePuy ASR hip replacement system in the MDL 2197. These cases will be consolidated in the district court of the Northern District of Ohio in front of Judge David A. Katz.

After the Panel decides that consolidation is necessary, it then decides, on a case by case basis, whether a particular case should be joined in the MDL. Any party, or even the court in which a DePuy recall case is filed, can notify the Panel that a case should be added to the MDL as a tag-along. The Panel then issues a Conditional Transfer Order “CTO” conditionally transferring the case to MDL if there are no objections.

It is important to note, that if a case is transferred it will not be tried in Ohio. Judge Katz will only handle issues such as jurisdiction and discovery, which are all considered to be pre-trial matters. This is done in order to streamline the proceedings by avoiding duplicate discovery and inconsistent rulings by multiple judges. Simply put, it puts all the plaintiffs on equal footing before their individual cases are tried. After the pre-trial proceedings are completed, Judge Katz will then transfer each case back to its own district court where they will be decided on their individual merits. This is the biggest difference between a class action and the MDL. In a class action, one case is chosen as the lead case, and only its merits are decided. The fact finder then may award a sum of money which is split among all the class members even though the facts of their cases were never looked at. In the MDL, only the pre-trial proceedings are consolidated, but the facts of each case will be considered in determining the outcome and the proper monetary award.

Currently, over 250 cases have been consolidated in the MDL 2197, dealing with the DePuy hip replacement claims, with new ones being transferred almost every day. No pre-trial issues have been decided at this time, while the Panel is still adding more and more related cases. Furthermore, there are hundreds of cases all around the country that will not be joined in the MDL 2197, though they do deal with the recalled DePuy ASR hip implant. Regardless of the procedural path a case may take, it is estimated that it will take 18-24 months before the DePuy Hip Replacement Litigation is completed.