The Judicial Panel on Multidistrict Litigation (JPMDL) created MDL No. 2775 to centralize Smith & Nephew Birmingham Hip Resurfacing (BHR) Hip Implant Products Liability Litigation.
US District Judge Catherine C. Blake in the District of Maryland will hear 28 actions pending in 19 districts, plus 11 related actions pending in 11 other district courts.
These actions involve products liability claims relating to components of the Birmingham Hip Resurfacing (BHR) system, the R3 acetabular system, or some combination of a BHR component and other hip implant components.
Smith & Nephew has faced litigation involving its hip implants since 2010. There are 34 BHR actions (including the potential tagalong actions) pending in 25 district courtrs across the country. Most of these actions were filed only recently and are in their infancy.
The lawsuits share factual questions concerning the design, manufacture, marketing or performance of Smith & Nephew’s BHR system. Specifically, the plaintiffs focus on complications arising from the use of a cobalt-chromium alloy in the manufacture of the BHR components. The plaintiffs allege that they have suffered pain, adverse local tissue reaction, pseudotumors, bone and tissue necrosis, metallosis, or other symptoms, often necessitating revision surgery.
Smith & Nephew opposed the centralization of the cases. The company also argued that the primary dispute in the BHR actions is whether plaintiffs’ claims are preempted by federal law. It contended that the individual issues involved in determining whether a parallel state law claim exists and has been pled in each action would overwhelm the questions common to the preemption analysis.
“We suspect that the preemption analysis will be more similar from case to case than Smith & Nephew suggests. The same preemption analysis will be conducted in each action, and state tort laws that share similar elements can be grouped together for analysis. To the extent these actions survive Smith & Nephew’s preemption challenges, discovery is likely to be complex, expert-intensive, and will benefit from centralization,” the JPMDL said.
Judge Blake is already presiding over two Smith & Nephew hip lawsuits. The JPMDL said she “is an experienced MDL judge with the willingness and ability to manage this litigation efficiently. She is well situated to structure this litigation so as to minimize delay and avoid unnecessary duplication of discovery and motion practice.”
Admitting for the first time that its Modular SMF and Modular REDAPT femoral replacement hip systems cause toxic metallosis in patients, Smith & Nephew has issued an urgent field safety notice recalling thousands of the defective medical devices.
The recall affects 6,266 SMF and REDAPT hip systems in commerce, plus 13,671 modular neck hip prostheses in commerce — shipped from October 2008 through July 2016.
Based in Memphis, TN, Smith & Nephew has sold the Modular SMF and REDAPT implants for almost a decade. In its letter to doctors, the company admitted that “Smith & Nephew considers that patients implanted with the modular neck hip prostheses may be at greater risk of revision surgery than with comparable monolithic products.”