Medical giant Johnson & Johnson is under mounting pressure to settle a class action launched against it by 4500 Australians who were fitted with the company’s infamous metal-on-metal hip replacements, after a US victim was awarded $8.3 million.
Lawyers representing the Australians fitted with the articular surface replacement (ASR) hip implants will return to court this week buoyed by the US case – which also revealed that Johnson & Johnson executives were told the implants were faulty but did not act.
Fairfax Media understands the Australian legal team may ask the Federal Court on Wednesday to order Johnson & Johnson, and the designer of the implants, DePuy International, to attend a week of mediation in May in a bid to work out a settlement.
The ASR hips, implanted in more than 90,000 people across the world, began causing problems within six months of the first operations in the mid-2000s.
Australian national registry data showed last year that 44 per cent failed within seven years.
It has emerged that the high-carbon metal ball in the device was grating against its socket and sending metal fragments, rich in cobalt and chromium, into the bloodstream. Thousands of people fitted with the device were found to have symptoms associated with cobalt poisoning including severe pain, partial loss of vision and hearing, depression, lethargy and heart problems.
In December 2009, Johnson & Johnson discontinued supply of the implants in Australia. It wasn’t until August 2010 that DePuy International issued a worldwide recall. Patients were then forced to undergo major surgeries to remove the devices and implant safer ones.
But many have seen little improvement, suggesting that they have suffered permanent damage from the heavy metals that entered their bloodstream.
“When I look back on the letters I wrote to my surgeon in 2009 about the pain I was experiencing, I realize nothing’s changed,” said 72-year-old Peter Russell, one of the members of the Australian class action. “I can’t sit, can’t use my hands properly, I’m unstable on my feet, I can’t sleep – it wakes you up,” he said. “It’s affected every aspect of my life.”
The members of the Australian class action received a major boost earlier this month when a jury in Los Angeles ordered Johnson & Johnson to pay more than $8.3 million to Montana man Loren Kransky.
The case – the first of more than 10,000 similar legal battles set to take place – sets an important legal precedent, paving the way for a cascading series of damages pay-outs that is likely to run into the billions.
Rebecca Jancauskas from Shine Lawyers, one of three firms running the Australian class action, said the US decision would put pressure on the company’s Australian arm to consider a substantial settlement.
“It sends a very strong and clear message to Johnson & Johnson,” Ms Jancauskas said. “This is a clear case where they’ve put profits ahead of people and it’s a clear case where they need to compensate those who they’ve wronged.”
The US case has revealed internal documents that showed company executives were told by US surgeons that the design of the implants was faulty. Some doctors urged the device maker to slow or stop selling the implant, but these warnings were largely ignored.
Lawyers for the Australian victims claim that those fitted with the implants were “unwitting participants in a large unofficial trial being conducted by DePuy and its agents and affiliates.”
Johnson & Johnson and DePuy have said they will appeal against the US decision.
Lawyers in the Australian case said the company “deployed an international and interdisciplinary team to design the implants, which used up-to-date scientific and technical knowledge, and subjected the implants to an extensive testing program over several years”.
They say all hip replacement or resurfacing devices carry risks, and surgeons were made aware of this.
Should the case proceed to trial, a crucial element will be whether the victims can argue for exemplary or aggravated damages – damages awarded to punish and deter companies from future wrongdoing. Mr Kransky failed in his bid for punitive damages, which could have brought a payout in the tens of millions.
Another stumbling block could be Australia’s extremely tough damages regime, which places strict limits on how much money a plaintiff can be awarded. “It’s those who are in the slightly less severe category who could be most affected by our unjust damages regime,” said lawyer Ben Slade from Maurice Blackburn, who are also part of the class action. Mr Russell’s wish is for Johnson & Johnson to acknowledge its wrongdoing.
Article Source: www.smh.com.au