In 2009 after the U.S. Food and Drug Administration raised questions about the safety of the DePuy ASR Hip Implants Johnson & Johnson decided to sell all the hip implants in its inventories before discontinuing the product.
An article to be published in tormorrow’s New York Times details the factual proof that Johnson & Johnson put its own corporate profits ahead of the safety of hip implant patients. Journalist Barry Meier, who has been conducting a detailed investigation for several years sets forth these facts:
1. The 2009 data from the Austrailian Registry showed high failure rates of the ASR after just a few years rather than the expected 15 years.
2. In 2009 the U.S. FDA confidentially notified DePuy Orthopedics that it would not approve a new ASR Resurfacing System.
3. A 2009 letter from the FDA expressed concerns about high metal levels in ASR traditional hip implant patients.
4. DePuy employees discussed selling out the inventories during 2009 and 2010 until the inventories were almost depleted and then recalled the product in August of 2011.
Legally, this conduct by Johnson & Johnson and DePuy Orthopedics could be considered gross negligence, or wanton and willful conduct. Such conduct can be the basis for punitive damages to punish the company in the lawsuits that are pending.
In a legal punitive damages case a jury is entitled to consider the wealth of the corporation in order to evaluate how large a monetary damage award would really punish the corporate defendant. Such damages could be many millions of dollars for such a large company as Johnson & Johnson. These damages would be in addition to the damages for medical expenses, lost wages and pain and suffering of an implant patient whose ASR failed shortly after implant.
I believe that these lawsuits will be settled in the next year or so. I do not think that Johnson & Johnson wants to see what a jury thinks of their irresponsible and selfish conduct.