Court due to hear six cases against artificial hip maker

Six cases where people are seeking damages from the artificial hip manufacturer DePuy are scheduled to be heard in the High Court this year.

Since the company’s controversial ASR metal hip product was withdrawn from the market in 2010, there have been 1,112 sets of proceedings against the multinational lodged with the High Court.

A special alternative dispute resolution (ADR) has been put in place to deal with the cases, as otherwise they might overwhelm the system. However, one of the law firms representing people seeking damages has said the resolution system is not working.

During 2018, 100 cases were resolved and no trials took place. Almost all of the case resolved did not go through ADR.

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Failing

Settlements are not publicly disclosed and claimants sign a confidentiality clause. The average award is understood to be in the region of €100,000. Claimants can take their case to court if they wish.

The DePuy metal hip device was withdrawn from the market after data emerged showing it was failing at a greater rate than more traditional hip devices, which use a metal head and a plastic or polyethylene cup.

All-metal hips produced by other manufacturers have also since disappeared from the market.

In order to qualify for the ADR process, a claimant has to have had their DePuy hip product removed within a decade of it being implanted.

In a review in December produced for Mr Justice Kevin Cross, McCann FitzGerald solicitors, which is acting for DePuy, said that more than 60 per cent of the proceedings involving claimants who have had the hip product removed, have been resolved.

There were 102 cases remaining in the ADR process. Outside the process, there were 222 cases where the claimant had not undergone surgery to have the DePuy hip replaced, and 209 cases that involved claimants who have had the product removed.

A total of 74 solicitor firms were acting for claimants. In the McCann FitzGerald report it was stated that Malcomson Law solicitors was acting for 59 claims that had been endorsed but not yet resolved or gone to evaluation.

During a review before Mr Justice Cross before Christmas, John Gordon SC, for Malcomson Law, said the firm wanted to make a submission during 2019 that the ADR process was not working.

Resolved

“We will be suggesting to the court that the ADR scheme has, in fact, failed, demonstrated by the fact that three cases got through the scheme in the last six months.”

He said the majority of the cases that had been resolved, had been resolved outside the ADR scheme.

“It’s actually adding nothing to the process only further misery to applicants who are trying to have their claims dealt with,” Mr Gordon said.

However Mr Justice Cross said it appeared that Malcomson Law was the only firm “finding misery there”.

Mr Gordon said this was not the case and that other firms, representing smaller numbers of clients, were also having problems.

His firm represented 120 claimants, one of whom he said was going to seek a trial date early in 2019. This would bring the number of trials to seven. Mr Justice Cross is to hear the application from Malcomson Law in early 2019.

DePuy is a subsidiary of Johnson & Johnson and both companies have extensive operations in the Republic. The US multinational is facing costs of up to $4 billion (€3.5 billion) arising from global claims and other costs associated with the hip product.