The Judicial Panel on Multidistrict Litigation decided that all pretrial proceedings in federal lawsuits against Johnson & Johnson, parent of DePuy Orthopaedics, over recalled devices used in hip-replacement surgery will be overseen by U.S. District Judge David A. Katz in the Northern District of Ohio. Thus, case filed in or successfully removed to federal court will be overseen by Judge Katz until either the discovery process is comleted and the cases are returned for trial to their original courts, or the cases settle.
The seven-judge MDL panel, created in 1968, decides whether lawsuits in different federal courts have common factual questions that would benefit from consolidation. The process is designed to streamline the exchange of evidence and avoid duplication. Once pretrial proceedings are completed, the individual cases are sent back for trial in the courts where they were first filed. The panel found that consolidating the DePuy cases "will serve the convenience of the parties and witnesses and promote the just and efficient conduct of the litigation."
In 2001, Sulzer AG agreed to pay $1 billion to settle product liability suites involving defective hip and knee replacements by its former Sulzer Medica unit. The DePuy litigation has the makings to be significantly larger than the Sulzer cases. For one thing, Sulzer was a relatively small, Swiss company on the verge of bankruptcy with little to no product liability insurance. Secondly, there were no allegations of toxic injury from the Sulzer implants. At worst, patients required revision surgery to have the implants removed. In the DePuy litigation, there are serious allegations of toxic exposure to chromium and cobalt, both of which can have serious adverse health effects. Thus, a DePuy claimant’s damages may include revision surgery to get the metal-on-metal implant out, systemic hypersensitivity to the metal load in their body (requiring use of non-metal replacement devices), bone loss around the implant, metal shavings in their tissues causing necrosis of the tissue, cobalt poisoning, non-malignant tumors, and increased risk of cancer.
The DePuy/Johnson & Johnson litigation will not be settled for anything close to the Sulzer settlment.