Is Joining the DePuy ASR Class Action Lawsuit still an Option for Recalled DePuy ASR Hip Implant Recipients With No Pain?

Andrew Sullo, Class Action Lead Counsel & Managing Partner at Sullo & Sullo is working hard to ensure that every single recipient of the DePuy ASR metal-on-metal hip implant is fully aware of both the recall on August 26, 2010 and the upcoming statute of limitations expiration for those who reside in states which implement the two-year statute. There are over 40,000 people who have received an ASR implant in the United States. The ASR was approved by theFDA in 2005 and began being widely used by surgeons who believed the metal-on-metal design would last much longer than the metal-on-ceramic or metal-on-polyethylene models.

Unfortunately, adverse health reports began pouring in with over 17,000 such reports received by the FDA regarding these all metal hip implants. Of those thousands of recipients, there are only approximately 6,000 who have joined into the MDL lawsuits against DePuy. While this might cause some to wonder if the risks of the ASR have been exaggerated, there are other factors involved. First of all, many recipients may not have heard the device was recalled or may truly have no idea what type of implant was used in their surgery. Second, many recipients of the ASR and other hip implant devices are senior citizens who may believe the symptoms they are experiencing are related to advancing age rather than attributing them to the ASR implant.

Finally, many of those who have not come forward to take part in the lawsuits state they are not having any problems with the ASR at present, so why would they sue the company? This is very flawed logic in this particular instance. Although the failure rate of the ASR was originally stated by DePuy to be in the 12-13% range—still much higher than the average of .5-5% failure rates—experts in the field have estimated that by six years following the initial surgery nearly 50% of the ASR hip implants will have failed and by eight years following the surgery a staggering 80% will have failed. When you look at those numbers you can see that it is highly likely that at least half of those thousands of people who have not joined into the lawsuit will suffer a hip failure. In fact, Andrew Sullo notes that “More than 50% of our ASR hip recipient docket has already received revisions.”

It could happen a month from now, a year from now or even five years from now, but the statistical likelihood dictates that it will happen. Either the hip implant will fail entirely or the person with the ASR implant will develop metal poisoning resulting from the cobalt and chromium ball and cup design which rub against one another during any sort of activity. When this friction between the two metal parts occurs, microscopic metal ions shear away from the implant lodging in the nearby tissue or gaining access to the recipient’s blood. There are many symptoms of metal toxicity however some people may not experience any symptoms until their levels are extremely high. In other words, some bodies will simply tolerate heavy metals in the body better than others.

The most pressing issue revolves around the upcoming statute of limitations. Those patients who have not filed their lawsuit by the time this date rolls around may be stunned to find they are now barred from bringing a lawsuit against DePuy for their damages. This means that even those ASR recipients who are doing just fine today could find themselves very sick  months from now yet be unable to bring a cause of action against DePuy and Johnson and Johnson. Such a catastrophic event could leave ASR recipients facing staggering medical bills since a typical revision surgery costs hundreds of thousands of dollars. Further, the recovery time for the revision surgery can be anywhere from weeks to months and involves considerable levels of pain during the rehabilitation period. Many revision surgeries are not successful, leaving the patient with a gait, a limp, or even worse, in a wheelchair. Sullo believes that those who don’t want to join in the lawsuit because they are currently feeling fine are putting themselves at considerable risk, and he wants to encourage them to speak with a legal professional from Sullo & Sullo while there is still time and remember that “The revisions are usually occurring within the first several years for ASR’s but I have noticed that for some clients the hip will be fine for several years and then out of the blue start hurting.”