The first of the DePuy `Bellwether` trials – McCracken -v- DePuy Orthopaedics Inc – had already met with delays after Anne McCracken replaced the original plaintiff Faye Dorney-Madgitz in July. The faulty hip replacement court case has been moved from September 9th, to September 24th to accommodate for the change.
Ann McCracken (57) from Rochester in New York made her claim against DePuy Orthopaedics in March 2011. In her claim, she alleged that she had suffered a dislocated hip due to metal particles discharged from her DePuy ASR XL Acetabular Hip Replacement System which was implanted in August 2009.
She underwent orthopaedic surgery to remove the DePuy metal-on-metal hip replacement system in January 2001. The surgeon in charge of the procedure saw evidence of metallosis, which had killed healthy tissue around the implant. This had subsequently caused the dislocation of her hip.
Ann had to undergo further operations in October 2011 to rectify the damage. Surgeons had implant a device which restricts the movement of her hip and which has decreased her mobility further. This restrictive device will also result in her present hip replacement system wearing out quicker than normal. Therefore, Ann will have to undergo further revision surgery in the future.
Ann´s faulty hip replacement court case is also to be decided without reference to the August 2010 recall of the DePuy ASR hip replacement systems. Judge Katz ruled that Ann´s injury “began with the initial implementation” and agreed with DePuy´s lawyers that mentioning the recall during the faulty hip replacement court case might deter other voluntarily recalls of potentially harmful medical devices in the future.
The ‘Bellwether’ trials will be used to determine the relative strengths and weaknesses of the plaintiffs´ claims and DePuy Orthopaedic´s defence. The motive for consolidating 7,800 claims against DePuy Orthopaedics is to discover if an acceptable point of reference can be determined for the settlement of compensation claims against DePuy Orthopaedics and their parent company Johnson & Johnson.
If no baseline can be established-or if negative verdicts are returned by the jurors-the outstanding claims will be remanded back to the U.S. District Courts in which they were originally filed. Each faulty hip replacement court case would then have to be heard individually. Due to the vast number of claims, this will cause a significant delay in the outcome of the claims and potentially inflicting financial hardship on the plaintiffs.
This would also be the case in Ireland. Plaintiffs who have served notice of cases against Johnson & Johnson, DePuy Orthopaedics and the Health Service Executive may not receive an offer of compensation and will have to pursue their claims against the alleged negligent parties through the Irish court system.