Mere weeks after the multidistrict litigation (MDL) court postponed the first federal-level bellwether trial from May to June 3, 2013, the trial has been delayed yet again. This time, Dorney-Madgitz v. DePuy has been continued until September 9, 2013.
Trial Order Gives Reasons for Delay
In the trial order issued on May 7, 2013 (PDF), the MDL court explained that the parties expected to litigate a number of motions before they could proceed. The order’s purpose is to “allow both sides to fully develop the issues and provide adequate time for adjudication.” The court also indicated that some of the motions could be decided after oral arguments. On May 14, 2013, the court held a status conference to construct a briefing schedule for the motions.
The second bellwether trial, McCracken v. DePuy, has not been rescheduled, but it probably will be.
DePuy Recall Exclusion Motion Filed
As for the motions themselves, Judge Katz signed a protective order allowing plaintiff Faye Dorney-Madgitz to submit her motions in limine (at the threshold of trial) under seal to prevent disclosure of private medical documents subject to protective orders. At the same time, DePuy filed a motion to exclude from the trial any evidence that it recalled the ASR XL Acetabular Hip System and ASR Hip Resurfacing System in August 2010.
In all likelihood, DePuy will argue that the recall is a “subsequent remedial measure,” so it shouldn’t be discussed to prevent prejudicing the jury against it. “Subsequent remedial measures” is a legal doctrine that forbids injured plaintiffs from using the defendant’s actions after the injury as evidence the defendant caused the injury. The purpose is to encourage parties to prevent further injuries to other potential recipients. In this case, by recalling the ASR hips, DePuy hopefully prevented injuries the devices might have caused people to suffer. However, without the “subsequent remedial measures” doctrine, it might not have bothered.
RLG Advocates for Artificial Hip Recipients
Unfortunately, those who were hoping that a swift plaintiffs’ side victory against DePuy in federal court would auger well for their cases will have to wait even longer for the outcome. If you received a DePuy ASR or any other potentially defective metal-on-metal hip implant and have not discussed your situation with an attorney, the Rottenstein Law Group is here to help. Simply click on this link or call 1-888-707-4470 and one of our lawyers will give you a free, confidential legal consultation as soon as possible. The amount of compensation from a hip replacement lawsuit might include damages for lost income, medical expenses, pain and suffering, and other damages.