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Eric T. Chaffin
Eric T. Chaffin
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Will a Biomet Consolidation Create the Fifth All-Metal Hip MDL?

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According to a March 2012 published analysis from the National Joint Registry of England and Wales, metal-on-metal total hip replacements fail at a high rate. The researchers noted that they give “poor implant survival” compared with other options and “should not be implanted.”

Recently, the U.S. Judicial Panel on Multidistrict Litigation (JPML) received a motion to consolidate all federal lawsuits involving the all-metal Biomet M2a Magnum hip implant. If the panel grants the motion, it will create the fifth metal-on-metal hip implant MDL, following those involving: DePuy ASR, DePuy Pinnacle, Zimmer Durom Cup, and Wright Conserve.

Biomet Metal-On-Metal Hip Associated with Problems

Approved by the FDA in 2004, the Biomet M2a Magnum is made up of all-metal components, and was initially marketed as a longer-lasting and more durable hip implant suitable for younger, more active patients. Post-marketing reports indicated the implant was failing sooner than expected, with patients complaining of pain, swelling, difficulty walking, and other complications.

To date, the FDA has received at least 450 complaints involving the M2a Magnum, and these seem to be increasing with time, as evidenced by the 159 reports already received in 2012. Patients requiring revision surgery are likely to consult with Biomet hip lawyers and file lawsuits, which will mean a steady increase of cases in courts around the country.

Panel Petitioned to Consolidate Biomet Lawsuits

On June 27, 2012, plaintiffs Leyda Ching and Diane Winningham brought a motion to transfer all Biomet M2a Magnum hip implant lawsuits to the Northern District of California or the Southern District of New York. The plaintiffs note the other four MDLs related to all-metal implants, and state that lawsuits alleging injuries from the Biomet Magnum seem to be following the same path.

Both of the plaintiffs received Biomet M2a Magnum hip implants that failed, and both went through revision surgeries and filed lawsuits in the Northern District of California. They state in their motion that a large number of additional cases will be filed in federal courts around the country, in addition to those that have already been filed in six different districts.

“Like the other four metal-on-metal MDLs,” the plaintiffs note, “the M2a Magnum cases will benefit from consolidated proceedings.” Transfer and coordination is appropriate because the cases involve questions of fact, including whether or not the Magnum has caused or will cause harmful effects in patients, whether the defendants concealed any knowledge of the connection between the M2a and its harmful effects, and whether or not they defectively designed and/or manufactured the device. The plaintiffs state that to allow these cases to proceed separately will increase costs for all parties, waste judicial resources, and create a risk of inconsistent rulings.

Location of MDL

As for the proposed locations for the MDL, the plaintiffs state that the Northern District of California has “already become a natural center of gravity for the litigation involving the M2a Magnum.” Three of the nine pending cases are filed there, and a large population of M2a Magnum patients live there. Finally, the area has several judges experienced in handling complex multidistrict cases.

The Southern District of New York was suggested as an alternative location, because one of the cases is pending there, and the experience of the judges.

Growing Litigation for All Metal-on-Metal Devices

At the time the motion to consolidate DePuy ASR implants was filed, only 8 cases were pending. Now, more than 4,000 are proceeding in the DePuy ASR MDL. Similarly, at the time of the motion to consolidate DePuy Pinnacle cases, only three cases were pending, and now over 1,000 have been transferred to the Pinnacle MDL.

An independent advisory panel recently met to review the safety issues surrounding all-metal hip implants on June 27-28, 2012. The panel agreed that orthopedic surgeons should avoid using them from now on. With all these events coming together, it is likely that Biomet M2a Magnum litigation will continue to grow, whether or not the JPML agrees to consolidate the cases.