Exactech Defective Hip Implant MDL Takes Shape

Brooklyn, NYAs of March 2024, 1,244 defective, ankle, knee and hip implant lawsuits were pending in multidistrict litigation in the Eastern District of New York. Although no trials or settlements have yet occurred, some speculate that individual hip plaintiffs may ultimately expect to recover as much as $300,000.

None of this is imminent, however, because the litigation is still in its early stages. The process for selecting bellwether cases, a preliminary step, is not expected to begin until April 2024. A status conference has now been scheduled for June 18, 2024, to be presided over by Magistrate Judge Marcia M. Henry.

Expanding number of plaintiffs

Exactech has a long history of legal problems even before the current recalls. The company was involved in lawsuits for problematic knee replacements provided to VA, Medicaid and Medicare patients. It was also sued by the Department of Justice for paying surgeons to use their implants. That lawsuit was settled in 2010 for $3 million.

Patients in the current cases began filing product liability lawsuits in 2021 after Exactech’s warnings and recalls alerted them to the fact that a packaging error had compromised the integrity of the joint replacement devices. That recall was later expanded in 2022 to include all hip devices with polyethylene components packaged in defective bags. The hip devices now subject to recall include:

• the Acumatch Hip with Connexion GXL liner;
• the MCS Hip with Connexion GXL liner;
• the Novation Hip with Connexion GXL liner; and
• all other hip devices with polyethylene components packaged in defective bags.

At least 143,484 potentially defective inserts were implanted in the U.S., according to Exactech’s April 2022 Urgent Medical Device Correction letter. The company has now created a recall website with information for patients and providers. The defective hip implant claims are part of a larger lawsuit involving knee and ankle prostheses as well.

Shrinking number of defendants

Founded in the mid-1980s in Gainesville, Florida, Exactech manufactures hip, knee and joint replacement components as well as surgical instruments. These devices are marketed throughout the U.S. and across the globe to more than 30 countries. The company was sold to a private equity firm, TPG Capital, Inc. in 2017. On March 7, the Eastern District dismissed all personal injury claims against TPG, ruling that it did not exercise sufficient control over the company to subject it to liability. Although it is generally better for plaintiffs to have more, rather than fewer deep-pocketed defendants to sue, this development is not expected to materially affect the lawsuits.

Master Complaint

In 2023 plaintiffs filed a Master Complaint with the court, so that the court could begin to assess the range of issues in dispute. Counts against Exactech are expected to include:

• Negligence;
• Failure to warn;
• Fraud; and
• Strict products liability.

Individual plaintiffs may also bring charges for economic loss, pain and suffering, wrongful death and loss of consortium when there is damage to family relationships. Where a jury finds that a defendant’s conduct is particularly outrageous, there may even be claims for punitive damages.

Symptoms of hip implant failure

Symptoms of hip implant failure may include:

• Pain;
• Stiffness;
• Limited mobility;
• Radiographic evidence of osteolysis (pathological destruction or disappearance of bone tissue); and
• Loosening because of osteolysis.

Perhaps even more serious, new revision surgeries may prolong recovery, increase pain even further, and subject patients to new risks of infection. Revision surgery rarely produces as satisfactory a repair as a successful first surgery. The first step, should you experience any of these symptoms, even if you have not received a recall notice, is to consult with your orthopedic surgeon.

What might I recover?

The size of the ultimate recovery depends on a variety of factors. Bellwether trials, which may begin in 2025 will give a measure of potential jury awards. Settlement negotiations for the remainder of the cases will begin in earnest, thereafter.

The other factor will be the extent of a patient’s injury. More extensive injuries can support a larger award or settlement offer. It is too early to speculate further about the amount an individual might recover. It is clear, however, that the Exactech defective joint implant litigation will be large. Potential plaintiffs should consult with an attorney and begin to assemble medical records as soon as possible.