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U.S. District Judge Robert L. Miller, Jr. held the initial hearing on the Biomet Magnum metal on metal hip implant lawsuits last Friday in South Bend, Indiana. This is the fifth coordinated national litigation involving metal on metal hip implants that the federal multidistrict litigation panel has established. Coordinated litigation has begun over the last two years for metal hips including the DePuy ASR in Toledo, Ohio, the DePuy Pinnacle Ultimet in Dallas, Texas, the Wright Converse Hip in Atlanta, Georgia, and the Zimmer Durom Cup in Newark, New Jersey.

While only the DePuy ASR and the Smith & Nephew R3 have officially been recalled it is clear that all of the metal on metal hip implants are failing at an unacceptably high level. At the 2012 meeting of the American Association of Orthopedic Surgeons (AAOS) the consensus was that these hips should no longer be used. The European regulatory authorities have expressed their disapproval of the metal hip implants.

I traveled to South Bend to represent my clients at the hearing and I was impressed with Judge Miller’s commitment to getting this litigation moving. The similarities between the Biomet Magnum cases and the other metal on metal hip implant cases pending on other districts were discussed. One of the purposes of this initial hearing was for the court to listen to the lawyers suggestions as to the management of this litigation and to consider appointment of a plaintiff lawyers steering committee. Other issues discussed were protocols for the preservation of hip explants for legal purposes as well as the range of Biomet products that would be included in the MDL. I was happy to see a good turnout of experienced plaintiff medical product liability attorneys who have these cases and would like to serve on the steering committee.

There are already almost a hundred Biomet lawsuits pending in the federal courts and the lawyers attending the hearing collectively have at least four hundred more lawsuits that will be filed. It is expected that there will be over one thousand Biomet Magnum and M2a lawsuits filed in this litigation. By comparison, there are over six thousand lawsuits now pending in the DePuy ASR multidistrict litigation.

There is litigation over defective hip implants in a number of courts that have not been coordinated in a multidistrict litigation and probably will not be due to the smaller number of lawsuits. There are a number of lawsuits pending around the country involving the Wright ProFemur implant and a very few cases involving the recently recalled Smith & Nephew R3. There have been quite a few failures involving the Smith & Nephew Birmingham Hip Resurfacing system. However, I do not expect to see lawsuits involving this product because it enjoys immunity from liability as a result of a very unfair, in my opinion, U.S. Supreme Court decision based upon a technicality in the FDA review and product approval process.

Judge Miller in South Bend is expected to enter an order within the next few weeks appointing a plaintiff steering committee to represent the plaintiffs interest in the Biomet Multidistrict Litigation. This is not a class action lawsuit. Each case will remain as an individual case that can be sent back to the home city of the injured hip implant patient if it does not get settled.

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