Tuesday, August 6, 2013

Court Grants DePuy Motion to Bar Evidence of Voluntary ASR Hip Recall from Bellwether Trial

Harris Martin

Important News for those considering law suit filings through the MDL!

TOLEDO, Ohio — U.S. District Judge David A. Katz has granted a motion by DePuy Orthopaedics (NYSE: JNJ) to exclude evidence of the voluntary August 2010 recall of its ASR hip device at a September trial, saying it is inadmissible under the Federal Rules of Civil Procedure.

That was one of several rulings issued by Judge Katz July 26 on in limine motions in the lawsuit brought by Ann McCracken, which is to be the first of the ASR MDL cases to be tried.

[Implication:  I am wondering what the power is of the MDL at this point.  This is a big blow to the MDL.  Essentially, the Depuy MOM plaintiff suits can't present a piece of critical information to the jury; the fact that there was a voluntary recall.  Yikes!

I also understand that unlike the trial in LA where the Plaintiffs prevailed in eliminating certain things in the pretrial motions to the judge, this trial will enable Depuy to enter the evidence that FDA had a process for quickly approving new devices to the market if they were substantially familiar to those that preceded the new ones.  While that process was not a result of any active investigative  approval of the Depuy ASR, the fast approval process is likely to confuse the jury and appear as though the regulatory agency was involved actively in reviewing the full construct of the ASR which it was not.  As we all know, as a result of this ASR approval, the whole process of device and implant approval through the FDA is under investigation.

If there are any MDL attorneys reading the blog today, I wonder if you can send us a note and advise why any patient at this point should file through the MDL?  Aren't these two motions really problematic for the bell weather trial?

What are the alternatives to the MDL in light of this development last week?  State court filing in a venue which is more accepting of the plaintiff motions.]

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