DePuy ASR group action FAQs
Claims for failed hip components are brought in product liability under the Consumer Protection Act 1987 (‘CPA’).
In principle, it would be necessary to establish:
- that the hip component was defective;
- that your hip operation failed early as a result of a defect in the component over and above any other cause such as infection or surgical technique; and
- that the defect was discoverable at the time the product was supplied to the market.
Generally, to establish that your hip operation has failed, we require you to have had a revision operation or have a confirmation from your surgeon that you are due to be revised. A revision operation is a surgical procedure to replace your failed hip component.
If we can establish the above, the appropriate Defendant in your case would be the manufacturer of the component, i.e., DePuy International Ltd.
A claim must be issued within three years of the claimant finding out that the injury was caused by a defective product. The CPA also requires that claims are issued within 10 years from the date that the specific product was put into market circulation, after which time all rights under the CPA are extinguished. If the 10 years expires before the expiry of the three year statutory limitation period, then the earlier date will apply.
The Medicines and Healthcare products Regulatory Agency (MHRA) recommends to doctors that if a patient shows signs of abnormal pain they should carry out measurements of cobalt and chrome in the blood. Patients who have levels of 7 parts per billion (ppb) or above should be followed up and reviewed closely. If you are worried, speak to your G.P.
We are not in a position to offer clinical advice to patients; however, if you are very worried you should seek a second opinion from a medical expert.
You will be entitled to two kinds of compensation for your injury:
The first is called ‘general damages’ and is awarded for what the courts call "pain, suffering and loss of amenity".
The figures awarded for general damages are fixed by Judges on a tariff basis, by comparison with similar injuries which are summarised in the Judicial Studies Board Guidelines and depend on the severity of the damage suffered as a result of the defective component.
The second is called ‘special damages’ and covers actual financial losses and expenses arising from your injury. This can include lost earnings, costs of caring for an injured person, costs of physiotherapy and many other things.
No, compensation is calculated individually.
General damages will be awarded depending on the severity of the damage you suffered as a consequence of the defective product, your recovery following the revision surgery and your future prognosis. More serious injuries, resulting in life-long incapacity, will attract the largest awards.
Special damages will be awarded depending on the amount of your financial losses and other expenses claimed. The two biggest items are often the costs of care and loss of earnings.
This depends on your funding arrangements and the outcome of the case.
We need to know whether or not you have the benefit of legal expenses insurance. This is distinct from medical insurance. Many household contents insurance policies contain Legal Expenses Policies which may cover the legal costs of a claim. You may also possess such insurance by virtue of being or having been a trade union member.
If you do not have Legal Expenses cover we would assess the chances of success of your case and we would consider offering you what is called a Conditional Fee Agreement (CFA) (also known as a “No Win, No Fee” agreement).
You will however be responsible for meeting your ‘disbursements’, which are not your legal fees but expenses that would have to be incurred on your behalf, for example the costs of obtaining medical records and expert reports.
Legal Expenses Insurance
If you win your case, the Defendant will be responsible for meeting your legal fees and disbursements.
In the event that you lose your case, theoretically you are liable for our costs and DePuy’s costs; however your insurance company will indemnify you and will cover the costs.
Conditional Fee Agreement
If you win your case, we recover our fees and costs plus a success fee from DePuy.
In the event that you lose your case, you will not have to pay our fees. You will however be liable for the Defendant’s costs; however, if appropriate, we will take out After the Event Insurance (‘ATE’) in order to protect you in respect of these costs.
It is beyond the remit of this FAQ to explain all possible scenarios, but rest assured that everything will be explained to you in detail and in plain English in due course.
Legal Aid for the ASR cases is not available.
This is very difficult to estimate. It will depend initially on whether DePuy are prepared to settle the case before it goes to Trial. If they are not prepared to settle, it will take further time to prepare your case fully for Trial. It is always up to Claimant to prove his or her case and therefore this process cannot be rushed.
Additionally, the length of time will depend on the complexity of your individual case. A more complex case will take longer as it will require more of our time and we may need to obtain further documentation or expert reports.
As you may be aware, DePuy’s loss adjusters, Broadspire UK, have been appointed to manage claims for the reimbursement of treatment costs, (including revision surgery where necessary) associated with the recall of the ASR product together with the individual patients’ claims for reasonable out of pocket expenses relating to such care and treatment, where applicable, to include travel expenses and possible loss of earnings.
All claims will be initially submitted to Broadspires so that an EClaim number can be issued. Broadspires will thereafter request the patient to complete a medical mandate form so that they can approach the Claimant’s revision surgeon and obtain relevant data regarding the need for revision.
The medical mandate form includes a section whereby the patient consents to the release of the explanted ASR product. Claimants are entitled to delete this section thereby withholding consent.
We have agreed with Broadspire that we will liaise with them on behalf of our clients, for the purpose of completing any medical mandates or questionnaires that they require so as to expedite the reimbursement process.
Please provide us with any relevant correspondence you have already received from Broadspire. If you have already provided Broadspire with completed medical mandate forms please let us know as soon as possible.
Please keep any receipts of expenses that you have incurred associated with the revision surgery and subsequent rehabilitation.
In the event that you are yet to have a revision operation, please notify us as soon as possible so we can advise you regarding the data to be collected at surgery.
Leigh Day is the lead solicitors in the DePuy ASR group claim. We also have unrivalled experience in dealing with complex liability cases. We have a large and growing team dedicated to Product Liability with specific expertise in defective hip component claims. We are listed as a top rated firm for product liability cases and group claims in the UK by the Legal 500 and Chambers directories.
The Chambers Directory 2021 described the work of the product liability team as follows:
“Deep bench of claimant lawyers handling significant product liability work, including major multiparty and cross-jurisdictional litigation."
If your hip has failed as a result of surgical error rather than a defect in the product you may have a claim in Clinical Negligence. The time limit for bring these claims is three years from the date you became aware that your hip failed due to surgical error.
Please bear in mind that these matters are extremely complex and it is impossible to tell the cause of the failure of your hip operation without expert and forensic investigation. DePuy may have blamed your surgeon incorrectly and we therefore recommend that you contact us immediately to discuss you case.
We are currently also investigating a number of other potential claims in respect of other brands of metal-on-metal hip components, including Zimmer Durom, Pinnacle and Corin. Please contact us for further advice.
Ultimately, if DePuy lose the case, compensation payouts will be made by their insurance company. DePuy are owned by Johnson & Johnson, a large multi-national company with extensive assets. We do not anticipate an issue in recovering costs or compensation payments.
User groups have been set up to act as an information sharing resource for patients affected by the DePuy ASR or DePuy Corail Pinnacle hip implant.
David Lentaigne has considerable experience of running a support group and has offered his assistance in this matter, having witnessed his wife’s struggle with a failed DePuy ASR hip system. If you wish to join the DePuy ASR user group, David may be contacted on tel. 01730 827 448.
If you wish to contact the DePuy Corail Pinnacle support group, please call the group co-ordinator Margaret Davie on tel. 07929 342898.
Should you wish to make an enquiry, please contact us and you will be put through to a member of our Product Liability Team who will investigate your enquiry and discuss your next steps. We do ask that you try to obtain confirmation of the identity of your hip component as soon as possible.
You can send an email with your details to: ASRclaims@leighday.co.uk
Alternatively, call us for a free consultation on 0845 851 0889, or write to us at: Leigh Day Solicitors, Priory House, St John’s Lane, London EC1M 4LB (www.leighday.co.uk).