INSIGHTS On Massachusetts Personal Injury Law

Welcome to the SUGARMAN blog. We'll be sharing our perspectives on the state of the law and current legal issues in Massachusetts personal injury law. Issues relating to medical malpractice, construction site injuries, premises liability, product liability, motor vehicle accidents, insurance, and more will all be reviewed here by our team of lawyers who have prosecuted some of the most complex cases in Massachusetts personal injury law.

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DePuy Artificial Hip Recall and Massachusetts Product Liability Law

On August 24, 2010, DePuy Orthopaedics issued a voluntary recall of its ASR XL Acetabular Hip System and its ASR Hip Resurfacing System.  In its recall notice, DePuy referenced data suggesting a higher than average revision rate (a revision is when a second surgical procedure is required to modify or replace an artificial joint that has failed).  In fact, recent data shows the five year revision rate for the DePuy ASR hips to be one out of every eight patients.  It is further anticipated that the 10 year revision rate will be substantially higher (the products were first produced in 2003 and have not yet been available for 10 years).

Artificial hips that are  part of the DePuy recall  will require testing, monitoring and potentially revision surgery.   In addition to joint pain and failure, the DePuy ASR hips have been associated with a build-up of metal wear debris in the body.  For this reason, a patient will require follow-up treatment and monitoring even if he or she has no symptoms in the hip.

DePuy claims that it does not maintain a list of individuals who received a recalled ASR hip.  If you have a DePuy hip, or are uncertain about the manufacturer of your device, your should contact your surgeon.

The government body tasked with regulating medical devices is the Food and Drug Administration (FDA). FDA approval must be obtained prior to sale and marketing of a new medical device. In 2008, the U.S. Supreme Court ruled that manufacturers of medical devices that went through the full pre-market approval process of the FDA were immune from state tort liability, even if the device later proved to be defective. Many new medical devices, however, bypass the full pre-market analysis and gain FDA approval through a less stringent process. DePuy gained FDA approval of its ASR hips through this less stringent process and, as a result, is unlikely to be granted immunity from civil lawsuits.

When a medical device like the DePuy hip causes personal injury to a patient, a product liability claim against the manufacturer is an important mechanism for increasing public safety and awareness. It can provide compensation for the victim, public exposure of the product’s defects, and contribute to the safety of the product going forward either through redesign or removal from the market. An attorney experienced in product liability law should be consulted whenever a serious injury or death is caused by a consumer product. But how does a consumer choose appropriate legal representation?

A simple Google search for DePuy hip recall yields a large number of law firms claiming expertise in these types of product liability cases. It is important that these sites be recognized for what they are – legal advertising. To accurately measure the credentials and qualifications of a lawyer, one should look to the track record and experience of the lawyer and law firm.

SUGARMAN has a long history of successfully prosecuting product liability cases dating back to the seminal 1979 case that allowed lawyers in Massachusetts, for the very first time, to use a recall notice like the one issued by DePuy as evidence of a product defect in a civil products liability case. http://masscases.com/cases/sjc/377/377mass736.html.

If you have any questions regarding a DePuy hip, one of our partners will take your call and will be happy to consult with you.

Call us at 617-542-1000 or email info@sugarman.com.