Johnson & Johnson Lawsuit Decision Gives Confidence to Australian Plaintiffs

After medical device giant Johnson & Johnson (JNJ) was mandated to pay $8.3 million to a U.S. patient who sued over the company’s ASR hip replacement in early March, the company began to face mounting pressure to settle a class action lawsuit brought by 4,500 Australians. The ASR metal-on-metal hip was recalled in 2010 for concern over metal deposits in patients’ bloodstreams, and now the New Brunswick, N.J.-based company is facing thousands of lawsuits.

According to Australian newspaper The Sydney Morning Herald, the Australian legal team may ask the Australian Federal Court to order JNJ and the designer of the implants, DePuy International, to attend a week of mediation in May in a bid to work out a settlement.

The ASR hips were launched in Australia in the mid-2000s, and began to fail after approximately six months. According to Australian national registry data, 44 percent of the implants failed within seven years.

In December 2009, JNJ discontinued supply of the implants in Australia. It wasn’t until August 2010 that DePuy International issued a worldwide recall. Patients were then forced to undergo major surgeries to remove the devices and implant safer ones.

“When I look back on the letters I wrote to my surgeon in 2009 about the pain I was experiencing, I realize nothing’s changed,” said 72-year-old Peter Russell, one of the members of the Australian class action. “I can’t sit, can’t use my hands properly; I’m unstable on my feet; I can’t sleep—it wakes you up. It’s affected every aspect of my life.”

When American plaintiff Loren Kransky won the $8.3 million suit in the United States, his attorney, Doug Saeltzer, was optimistic about the other cases. “The message is that these cases are valid, that the injuries are real and severe, and Johnson & Johnson and DePuy have to pay significant money for their mistakes,” he said at the time.

Rebecca Jancauskas from Shine Lawyers, one of three firms running the Australian class action, said the U.S. decision would put pressure on the company’s Australian arm to consider a substantial settlement.

“It sends a very strong and clear message to Johnson & Johnson,” Jancauskas said. “This is a clear case where they’ve put profits ahead of people and it’s a clear case where they need to compensate those who they’ve wronged.”

Should the case proceed to trial, a crucial element will be whether the victims can argue for exemplary or aggravated damages—damages awarded to punish and deter companies from future wrongdoing. Kransky failed in his bid for punitive damages, which could have brought a payout in the tens of millions.

Another obstacle could be Australia’s extremely tough rules on damages, which place strict limits on how much money a plaintiff can be awarded. “It’s those who are in the slightly less severe category who could be most affected by our unjust damages regime,” lawyer Ben Slade from law firm Maurice Blackburn, also part of the class action, told Australia’s News.com.au.