If you are a recipient of an ASR XL Acetabular System or an ASR Hip Resurfacing System, both of which were recently recalled by DePuy/Johnson & Johnson, you’ve probably heard conflicting accounts concerning how much DePuy is willing to pay ASR injury victims. In determining the amount of compensation you may be entitled to a DePuy settlement, it is helpful to consider two things: the general types of damages available to people injured by defective products, and the results of a landmark hip implant lawsuit.
First, however, consider what DePuy has promised. The company asserts that it “intends to cover reasonable and customary costs of treatment if you need services associated with the recall of ASR, including revision surgery if it is necessary.” Elsewhere on its site, DePuy names specific out-of-pocket expenses that it may deem “reasonable,” including lost work time and travel expenses.
But the orthopedic manufacturer has yet to provide any details on how, or even if, it intends to compensate you for the pain and suffering your DePuy hip replacement may have caused. And even worse, DePuy will not pay you a cent until you call its claim center and sign a medical release form. In other words, only after you speak to a representative who owes you no duty of confidentiality and waive your rights will DePuy even consider compensating you. To protect your interests, you should not call DePuy or sign any document the company provides without first speaking with a DePuy hip replacement lawyer.
Now that you know DePuy’s stance on compensating ASR injury victims, you should understand what you may be legally entitled to. In a typical product liability case (such as when a defective medical device has injured you), a victim can potentially recover a combination of economic damages (such as medical bills and lost wages) and non-economic damages (such as pain and suffering). The most important thing for you to understand, though, is that there is no set amount of damages that applies to all cases, because individual circumstances vary considerably.
But a previous class action settlement sheds some light on how the DePuy injury cases might play out. In 2000, Sulzer Orthopedics, Inc. recalled approximately 30,000 of its Inter-Op Acetabular Shell units. Because of a defect, many recipients of this hip device required revision surgery, as is the case with the DePuy hip recall. In 2002, a class action settlement of over $1 billion was approved. Those patients who required revision surgery were paid more than $200,000 each, and those who received faulty implants but did not undergo revision surgery received roughly $1,000 each. But it bears mentioning that a Depuy hip replacement settlement from a class action lawsuit is not ideally suited to earning an injured client maximum compensation for the harm he or she has suffered. Filing an individual lawsuit, such as through a mass tort action, generally ensures a greater recovery amount than is possible through a class action.
It remains to be seen how the hundreds of DePuy ASR lawsuits will play out, and the results described above are not necessarily typical. The fact remains, however, that taking legal action may be your best—and only—chance to recover compensation from DePuy.