Miss the Filing Deadline for Your DePuy ASR Hip Case? There May Still Be Hope

Despite the fact that the August, 2010 recall of the DePuy ASR metal-on-metal hip implant caused a significant stir among the medical community, thousands of recipients of the metal implant remained unaware of recall and subsequent warnings. Due to the initial FDA notice which was issued July 17, 2010 and the recall of the implant on August 24, 2010, all those who live in a state which operates under a two-year statute of limitations may have already lost their right to file suit against DePuy and Johnson and Johnson. Over half of the states do operate under that two year SOL, while others extend that time limit to three, four, six or even ten years. A handful of states have a one-year statute of limitations.  If you are the recipient of a DePuy metal hip implant it’s important that you determine your state’s statute of limitations for defective medical products even if you are currently having no problems with your implant.

Although DePuy originally set their metal implant’s failure rate at approximately 5%, they increased that number to 12% at the time of the 2010 recall. Independent studies place the likelihood of a DePuy ASR implant failure much higher—50% at five years following implant surgery and 80% at eight years following implant surgery. Statistically speaking, even those patients who have not yet experienced failure of their hip implant or adverse health effects from metal toxicity will do so in the very near future. It is extremely important that all DePuy ASR implant recipients at least be aware of their options prior to the date the statute of limitations will run.

In some states the statute of limitations begins at the time the “injury” actually occurs, however in the case of a hip implant this date can be impossible to determine since the recipient may not experience problems for months or years following the implant.  In such cases the statute of limitations begins to run when the injured person should have known there could be an issue with their hip implant, which is likely when the recall was issued in August of 2010 or when the FDA warnings were issued in July of 2010. The problem with metal hip implants is that most of the harm and adverse health effects associated with the DePuy ASR hip implant do not fully manifest for three to six years following implantation.

This means many claimants will only recognize the full extent of the implant’s adverse health effects after their statute of limitations has run. The average recipient of the metal-on-metal ASR will have already been exposed to high levels of chromium and cobalt which will require ongoing monitoring and treatment. The long-term effects from metal exposure such as impaired neurological, renal, cardiovascular and thyroid functions can lead to life-altering health issues yet none of those effects may be apparent by the time the statute has run.

Many—but not all—recipients of the metal hip implant received a “Broadspire” letter which was meant to lull victims into believing their cooperation would result in additional compensation while avoiding a lengthy lawsuit process.  Unfortunately, in the year and a half since this letter was sent out, there have been few if any meaningful settlement offers for victims of the DePuy hip implant.  There is even confusion as to whether Broadspire—on behalf of Johnson & Johnson and DePuy—will continue to pay the out-of-pocket expenses recipients of the metal implant have incurred after the statute of limitations runs. Many feel the reimbursement process was nothing more than a giant company’s attempt to influence metal hip implant victims to forego a legal claim for the harm they’ve incurred from the implant.

Although the news sounds fairly dismal, if you are the recipient of a DePuy metal-on-metal hip implant, be aware that there may be hope even though your state’s statute of limitations has passed. There are limited circumstances under which a knowledgeable and skilled attorney can have the two-year statute extended by arguing the statute should not have started running until the victim had received proper notice of the recall. For example, some implant recipients may not have received a Broadspire letter from Johnson & Johnson/DePuy Orthopedics or any other notice of the recall.

If the implant recipient moved or did not have ongoing contact with the surgeon who implanted the device or their physician, then it is quite likely they may have missed the recall notice as well as the FDA warnings. The implant recipient’s attorney may also be able to argue that the Statute of Limitations should not have begun until the device failed or there was some overt indication of implant failure. Since device failure or evidence of metal toxicity may not occur in recipients for anywhere from two to eight years, this legal argument would give those who have suffered implant failure an extended time in which to file a lawsuit. This could force DePuy and Johnson and Johnson to compensate those victims who were unaware of the serious negative health effects their implant caused until after the statute of limitations had run.