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The DePuy hip scandal; Your questions answered

Who are the Defendants?

The parent company of “DePuy” is Johnson & Johnson Inc. There is more than one “DePuy”. The principal companies of that name are DePuy Inc. and DePuy Orthopaedics Inc. DePuy Orthopaedics Inc., a subsidiary of DePuy Inc., is the principal company manufacturing the hip replacement products. It is the company licensed to do so in the USA. For the rest of the world, “DePuy” transacts its manufacturing business through DePuy International Limited, a UK company based in Leeds. This is the entity recorded by the Irish Medicines Board as the “producer”. A factory controlled by DePuy Orthopaedics Inc. is located in Ringaskiddy in Cork. It exports its products to the USA. In addition, there is a distribution arm in Dublin called Johnson & Johnson (Ireland) Limited. For the purposes of the Liability for Defective Products Act 1991, there can be more than one “producer” pursuant to that Act; a person importing a product into the European Union is also a “producer” under the Act.

The hospitals fitting DePuy hips are liable, generally, under the Sale of Goods and Supply of Services Act 1980 for breach of contract.

What is the damage?

Currently, it is believed that 49% of DePuy recalled hips will fail. This figure is not intended to count persons with elevated cobalt and chromium ions in the bloodstream. It means that the implant has broken down and forced ex-plantation. If bloodstream contamination is the issue, the failure rate is much higher, possibly 100%. Bloodstream contamination is potentially serious; it damages local tissues and itself undermines the implant, besides being a poison. If the implant “breaks down”, so too will a person’s bone and that is not replaceable.

What are the causes of action?

“DePuy”is a “producer”; it is liable under the Liability for Defective Products Act 1991. Under this act it is not necessary to prove negligence on the part of the producer. It is necessary to prove the defect and the damage. “DePuy” was negligent; there were reliable technologies for the manufacture of hip implants; it was negligent to get it wrong. The Irish hospitals that fitted the hips did so under contract with patients; they are liable in contract, because the hips are defective.

What is the forum for disputes?

Ireland is the place of jurisdiction. It is the location of the commission of the torts and breaches of duty and contract of the defendants.

Is it necessary to wait?

No, not if it is possible to obtain all necessary medical reports on the current and prospective condition of the hip implants.

Is it desirable to wait?

Definitely not. The limitation periods applicable to the causes of action are now running against potential plaintiffs.

Can I join a class action?

Not in Ireland. We do not have provision for such actions. They are permitted in the UK, in Canada and in the USA. The people with immediate responsibility for failing to make such provision in Ireland are sitting on the Superior Courts Rules Committee.

Is it necessary to apply to the Personal Injuries Assessment Board?

No. Although the principal claim is for, inter alia, personal injury, the claims fall under exceptions to the Personal Injuries Assessment Board Act 2003.

What must be proved?

A plaintiff must prove the defect and damage. The fact of the DePuy “recall” is useful to prove the defect, but it would be necessary to engage an expert in the issue. The damage would vary from case to case, but it is difficult to see how any plaintiff with a DePuy hip would avoid ex-plantation before the expiration of the expected use life of the hips, 10 to 15 years. That means the claim is for metal contamination and an unnecessary medical operation and all the losses that would imply.

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