According to a recent New York Times, following the Johnson & Johnson/DePuy court proceedings last week, Thursday’s court testimony indicated that J&J’s internal review found the company had "not adequately assessed" risks of the hip implant used in over 90,000 people.
Also, an engineering report performed in 2010 indicated that J&J’s orthopedic unit had "used inadequate standards" in assessing risks before selling the Articular Surface Replacement (A.S.R.) in 2003. According to videotaped testimony by one of DePuy’s compliance managers, the company also did not use "appropriate engineering controls" to measure the device’s potential risk in patients. Other testimony noted that the ASR also had been tested only "at one angle of implantation" and on laboratory equipment while the cup of the hip joint could be implanted at different angles. (The New York Times, 1/31/13)
Due to a design flaw in the ASR hip joint, the likelihood that the metal-on-metal joint components could grind against one another and release metallic debris into a person’s body tissues, when implanted at other than the single angle tested, was increased. Apparently, DePuy was aware of the possibility following a post-mortem review in 2010, three months after recalling the hip joint, but the analysis was not made public. CEO Andrew Ekdahl, was "warned about the A.S.R.’s problems nearly three years before it was recalled." (The New York Times, 1/31/13). A spokesperson for DePuy maintained that the "company… acted appropriately." (The New York Times, 1/31/13)
This behavior by DePuy (Johnson & Johnson) is yet another example of bad corporate behavior. It also exemplifies why we need a tort system in America, in order to provide a check and balance on bad conduct detrimental to the public's health. As a lawyer representing folks injured by the unsafe conduct of others am I biased? Perhaps, but I firmly believe in our Constitution, including the Seventh Amendment, and the right to seek redress in our court system. How else would this conduct by a large, powerful corporation come to light? How else would a person, a lone citizen, be able to stand toe-to-toe with a billion dollar company? There is no other way.