Johnson & Johnson Settles Deceptive Hip Implant Marketing Lawsuits for $120 Million

Washington, DCJohnson & Johnson (“J&J”) has agreed to pay $120 million to the attorneys general of 46 states and Washington, D.C. to settle claims that the company made unfair and deceptive statements in the promotion of its ASR XL and Pinnacle Ultamet hip implant systems. A separate agreement is expected to resolve most of the thousands of consumer-driven defective hip implant lawsuits against J&J and its DePuy unit.

Deceiving vulnerable patients

The plaintiff attorneys general were quick to slam J&J’s false claims about the longevity of the metal-on-metal devices. According to California Attorney General Xavier Becerra, “Johnson & Johnson is alleged to have deceived vulnerable patients in need of hip replacement and undermined their ability to recuperate quickly and safe.”

Letitia James, the New York attorney general, also weighed in: “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.”

The central claim of the lawsuit was that J&J knew, based on data collected by the National Joint Registry of England and Wales, that its statement about device durability was false. J&J maintained that the devices had a five-year survival rate of more than 90 percent. In other words, five years after hip surgery, 90 percent of the implants still functioned without harm to patients.

This was not true. European health regulators actually found that the rate was closer to 5 percent at five years. The difference between a 90 percent and 5 percent success rate is huge, especially if one of those hips is yours.

Many patients had to have painful revision surgery when their implants failed. They reported groin pain, allergic reactions, tissue necrosis and a form of heavy metal poisoning, or metallosis caused by the shedding of metallic ions into their blood systems. This was not the first state-initiated false claims lawsuit to get to court. In 2014, J&J paid $4 million to settle a similar false advertising lawsuit brought by the Oregon Department of Justice over its ASR hip implants.

J&J appears to have lied to the detriment of patients. To be clear, the settlement contains no admission of liability or misconduct. It does, however, require J&J to act in the future to ensure that its claims are based on the latest scientific data and to revise its complaint procedures.

An expensive business proposition for J&J

Metal-on-metal hip implants have been a troublesome line of business for J&J for years. Hip patients have been suing the parent company and its DePuy unit since 2010, alleging the devices failed prematurely or malfunctioned in other ways. There have been multiple reports of swelling, popping, dislocations and pain. J&J took the metal-on-metal version of the Pinnacle implant off the market in 2013.

In 2016, Johnson & Johnson paid $500 million in a bellwether hip implant trial, and then $1 billion in another. The company was found guilty of negligent design, failure to warn the public about its dangers, and fraudulent concealment of potential risks with the device. In 2017, a Dallas jury delivered plaintiffs a victory of $247 million.

Over the past two years, Dallas juries have ordered the company to pay a total of at least $1.7 billion in damages over hip claims, although several verdicts have since been reduced. J&J recently reached $400 million in settlements of patient lawsuits over its Pinnacle line of artificial hips. In 2013, the company set aside more than $2.5 billion to end suits over its ASR line of artificial hips. The ASR devices were pulled off the market in August 2010.

Worldwide problems

J&J is an international business, and the fallout from failed hip implants has been similarly global. The company recently negotiated a settlement with the Indian government for ASR hip recipients whose devices failed. Consumers who received a faulty ASR hip between 2004 and 2010 are eligible for payments ranging from $42,390 to $172,413, according to Indian news media reports.

The latest attorneys general agreement comes as J&J announced that its fourth quarter revenues of $20.4 billion and sales forecast for 2019 failed to meet expectations. During last fiscal quarter, litigation expenses doubled to $1.29 billion. This is partially the result of additional lawsuits over its baby powder and several pharmaceutical drugs.

In the baby powder cases, J&J is currently facing roughly 11,700 lawsuits over the safety of talc in its products. The company is accused of knowingly selling a dangerous product, contaminated with asbestos.

The attorneys generals’ defective hip implant lawsuit is a significant victory for hip implant patients because it requires the company to rectify its future conduct, possibly reducing the risk of harm to patients.