First DePuy Implant Case Goes to Jury

           LOS ANGELES (CN) – DePuy orthopedics knew its metal-on-metal hip replacement could hurt patients but kept it on the market because it was more concerned about profits than safety, attorneys said during closing arguments in the first case about the device to go to trial.
     DePuy in 2010 recalled its defective all-metal hip implant, the Articular Surface Replacement, or ASR XL, after high failure rates. More than 10,000 lawsuits followed.
     Superior Court Judge Stephen Czuleger is presiding over the jury trial.
     Plaintiff Loren Kransky, 66, sat in the packed courtroom last week to hear closing arguments.
     DePuy was acquired in 1998 by Johnson & Johnson, which is no longer a defendant.
     DePuy denied claims that it knew there was something wrong with the product long before it was recalled.
     Kransky’s attorney Brian Panish, with Panish Shea & Boyle, told visibly weary jurors that Kransky had lived with pain “every single day,” after metal debris built up from “massive wear” and left him with metal poisoning.
     Panish painted DePuy as a company that only cared about “profits, balance sheets and business,” accused it of playing “Russian roulette” with patient safety, and treating the trial as little more than a “game.”
     Panish occasionally gestured to DePuy attorney Michael Zellers, claiming the company had done everything it could during trial to avoid responsibility for the product’s failure.
     But despite DePuy’s strategy of “deny, deny, deny,” Kransky “wouldn’t have been injured” if the artificial hip had not been implanted in him, Panish said.
     He said DePuy knew there was something wrong with the product because surgeons had complained of excessive wear. But DePuy’s response was to “manage perception” rather than pull the product.
     A former prison guard from Montana, Kransky “worked his whole life” and “deserved better,” Panish said. He called him a “proud” man who was forced to depend on his family for care as he suffered.
     But DePuy is a soulless corporation, more concerned about “negative publicity” than protecting patients, the lawyer said.
     He asked jurors for $338,000 in economic damages, $5 million in economic damages for pain and suffering, and up to $179 million in punitive damages.
     DePuy executives would be “flipping the champagne glasses” if jurors failed to deliver adequate damages, Panish said.
     “You have a chance in this case to make difference for product safety,” Panish told the jury. “The money needs to be enough that you get their attention and they put a stop to this.”
     But DePuy attorney Zellers claimed that Kransky’s injuries were not caused by the ASR XL or DePuy’s conduct. He said Kransky was already in poor health from diabetes and other ailments when the ASR XL was removed.
     He claimed that Kransky and his attorney influenced doctors to use language suggesting metal poisoning, though his injuries were actually caused by an “infection.”
     Stating that there was “no perfect hip design,” Zellers said DePuy and its engineers and surgeons had tried to improve previous hip implants, spending years testing the ASR XL.
     After a 90-minute recess, Zellers said the ASR XL had shed metal because of the high inclination angle at which it had been implanted. There was no evidence that the result would have been different if surgeons had used a different device, he claimed.
     DePuy’s sales literature warned surgeons that wear could result if an artificial hip were placed at greater than a 45-degree angle, Zellers said, and Kransky’s was implanted at greater than a 60-degree angle.
     Zellers cautioned against awarding damages, but said the jury should “look at all the evidence” if it did reach the question.
     Zellers dedicated some time to rebut the claim that DePuy is a heartless corporation driven by greed. He said the company had not acted maliciously or fraudulently.
     “Ultimately, the product did not perform as DePuy expected it to perform,” Zellers said. But he said DePuy had acted “responsibly” and is a “good company.”
     “With respect to its patients, to the patients’ that use its devices, they are very important to DePuy,” Zellers said.
     He said DePuy had done “the right thing” in recalling the ASR XL because it did not live up to the company’s own standards.
     “It did that because it put patients over money,” Zellers said.
     During rebuttal, attorney Michael Kelly with Walkup, Melodia, Kelly & Schoenberger tried to make Swiss cheese of that theory, riffing on the theme that DePuy put money before patients.
     DePuy’s strategy was clear from start, Kelly said: “Muddy up the issues. Change the debate. Move the discussion.”
     That included attacking Kransky, his attorneys, and the doctors who treated him, Kelly said.
     He clapped together the metal cups of the ASR XL like castanets, asking the jury to use “common sense” and protect other members of the “community.”
     Likening the metal hip replacement to a toaster that explodes, Kelly called DePuy’s product a “public health disaster,” contending it was “defective on the day it came on the market.”
     Czuleger denied a motion for mistrial after Panish said that thousands of other cases were pending.
     The jury began deliberating on Friday.
     (Courthouse News covered pre-recess arguments in person. The post-recess arguments were followed via Courtroom View Network.)

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