New York State Attorney General Letitia James announced today that she and 45 other Attorneys General across the country reached a $120 million Consent Judgment with Johnson & Johnson and DePuy Inc. to resolve allegations that the company unlawfully promoted its metal-on-metal hip implant devices, the ASR XL and the Pinnacle Ultamet.
 
The Attorneys General allege that DePuy engaged in unfair and deceptive practices in its promotion of the ASR XL and Pinnacle Ultamet hip implant devices by making misleading claims as to the longevity, also known as survivorship, of metal-on-metal hip implants. DePuy advertised that the ASR XL hip implant had a survivorship of 99.2 percent at three years when the National Joint Registry of England and Wales reported a 7 percent revision rate at three years. Similarly, DePuy promoted the Pinnacle Ultamet as having a survivorship of 99.8 percent and 99.9 percent survivorship at five years when the National Joint Registry of England and Wales reported a 2.2 percent 3-year-revision rate in 2009 increasing to a 4.28 percent 5-year-revision rate in 2012. 
 
“Doctors and their patients need to have accurate and up to date information to ensure that patients are receiving appropriate healthcare,” said James. “Companies should never be allowed to freely mislead the public, especially when there are health concerns involved. This settlement serves as an important message that deceptive and false medical practices will never be tolerated.”

Some patients who required hip implant revision surgery to replace a failed ASR XL or Pinnacle Ultamet implant experienced persistent groin pain, allergic reactions, tissue necrosis, as well as a build-up of metal ions in the blood. The ASR XL was recalled from the market in 2010. DePuy discontinued its sale of the Pinnacle Ultamet in 2013.

A DePuy spokeswoman said the settlement is not an admission of liability or misconduct on the company's behalf: "The settlements announced today with state attorneys general resolve an investigation of the marketing and promotion of two previously marketed hip replacement systems, the ASR Hip System and ULTAMET Metal-on-Metal Articulation," DePuy Spokeswoman Mindy Tinsley said in an email. "This $120M settlement, which involves no admission of liability or misconduct on the part of the companies, includes 45 states and the District of Columbia. DePuy Synthes remains committed to meeting the current and future needs of orthopedic surgeons and patients."
 
As part of the Consent Judgment, DePuy has agreed to reform how it markets and promotes its hip implants. Under the Consent Judgment, DePuy is required to: 

• Base claims of survivorship, stability or dislocations on scientific information and the most recent dataset available from a registry for any DePuy hip implant device.
• Maintain a post market surveillance program and complaint handling program.
• Update and maintain internal product complaint handling operating procedures including training of complaint reviewers.
• Update and maintain processes and procedures to track and analyze product complaints that do not meet the definition of Medical Device Reportable Events.
• Maintain a quality assurance program that includes an audit procedure for tracking complaints regarding DePuy Products that do not rise to the level of a Medical Device Reportable Event but that may indicate a device-related serious injury or malfunction.
• Perform quarterly reviews of complaints and if a subgroup of patients is identified that has a higher incidence of adverse events than the full patient population, determine the cause and alter promotional practices as appropriate.

 
Under the settlement New York State will receive $4.66 million.
 
The investigation was led by Texas and South Carolina. In addition to New York, also participating in the settlement are Alabama, Alaska, Arizona, Arkansas, California, Colorado, Connecticut, Delaware, District of Columbia, Florida, Georgia, Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, Missouri, Montana, Nebraska, Nevada, New Hampshire, New Mexico, North Carolina, North Dakota, Ohio, Oklahoma, Pennsylvania, Rhode Island, South Carolina, South Dakota, Tennessee, Texas, Utah, Vermont, Virginia, Washington, and Wisconsin. 
 
On behalf of New York, the case was handled by Special Counsel Mary Alestra of the Consumer Frauds Bureau, under the supervision of Deputy Bureau Chief Laura J. Levine and Bureau Chief Jane Azia.