Despite
the fact that the August, 2010 recall of the DePuy ASR metal-on-metal hip
implant caused a significant stir among the medical community, thousands of
recipients of the metal implant remained unaware of recall and subsequent
warnings. Due to the initial FDA notice which was issued July 17, 2010 and the
recall of the implant on August 24, 2010, all those who live in a state which
operates under a two-year statute of limitations may have already lost their
right to file suit against DePuy and Johnson and Johnson. Over half of the
states do operate under that two year
SOL, while others extend that time limit to three, four, six or even ten years.
A handful of states have a one-year statute of limitations. If you are the recipient of a DePuy metal hip
implant it’s important that you determine your state’s statute of limitations
for defective medical products even if you are currently having no problems
with your implant.
Although
DePuy originally set their metal implant’s failure rate at approximately 5%,
they increased that number to 12% at the time of the 2010 recall. Independent
studies place the likelihood of a DePuy ASR implant failure much higher—50% at
five years following implant surgery and 80% at eight years following implant
surgery. Statistically speaking, even those patients who have not yet
experienced failure of their hip implant or adverse health effects from metal
toxicity will do so in the very near future. It is extremely important that all
DePuy ASR implant recipients at least be aware of their options prior to the
date the statute of limitations will run.
In
some states the statute of limitations begins at the time the “injury” actually
occurs, however in the case of a hip implant this date can be impossible to
determine since the recipient may not experience problems for months or years
following the implant. In such cases the
statute of limitations begins to run when the injured person should have known there could be an
issue with their hip implant, which is likely when the recall was issued in
August of 2010 or when the FDA warnings were issued in July of 2010. The
problem with metal hip implants is that most of the harm and adverse health
effects associated with the DePuy ASR hip implant do not fully manifest for
three to six years following implantation.
