On January 25th, Los Angeles jurors heard opening statements in a lawsuit accusing Johnson & Johnson of knowingly marketing a faulty hip implant, and plaintiff lawyers said the implants left thousands of people with crippling problems, or in need of replacement surgeries. That account is set out here as it stood when the trial opened, not as a current update on the litigation. The Illinois rules below are what shape a defective device claim today.
What the First ASR Hip Trial Alleged
The suit, alleging fraud and negligence, was the first of thousands going to trial in the U.S. All were related to the “all-metal ball-and-socket hip joint” manufactured by a Johnson & Johnson subsidiary, DePuy Orthopedics Inc. The product was pulled from the market in August of 2010, after data from the United Kingdom demonstrated that more than 12% of the devices had failed inside five years.
This first lawsuit, one of nearly ten thousand, was brought by Loren Kransky, a “retired prison guard who got an ASR (Articular Surface Replacement) XL hip implant in 2007, sued in state court in 2011 and had the device replaced last year,” according to Bloomberg news. Kransky’s lawyer, Michael Kelly, told the jury that DePuy Orthopaedics “knew the ASR hips were failing and never told doctors,” and argued that debris released from the metal ball and socket joint caused heavy metal ions to enter Kransky’s bloodstream. In October 2011, Kransky’s body had seven times the normal level of cobalt, a heavy metal that kills human cells.
The plaintiff’s case was that company executives had put profits before patient safety. DePuy, the plaintiff argued, never told physicians that ASR had failed an internal test against a different hip product they also manufactured. Instead, company officials “changed the test and tested it against other things until they found one it could beat.” Executives at DePuy Orthopaedics continued to sell the ASR, even as it was being rejected by surgeons who worked as consultants for the company. Kransky’s lawyers planned to call the doctors who treated him, to testify that the former prison guard and Vietnam vet was “poisoned by the chromium and cobalt” released by the artificial hip.
It is estimated that 93,000 patients worldwide received an ASR, and about one-third of them in the United States. Just before the trial opened, the U.S. Food and Drug Administration issued a proposal asking companies which make all-metal hip replacements to offer additional information which proves they are safe and effective, before being allowed to continue selling them.
How Illinois Treats a Defective Device Claim
A recall makes headlines, but it does not decide a case. An Illinois product liability claim can rest on strict liability in tort as well as negligence (735 ILCS 5/13-213), and usually turns on proving a design that was unreasonably dangerous, a manufacturing flaw in the unit you received, or a failure to warn about a known or knowable risk. You still have to tie that defect to your own harm, which in implant cases means the explant, the imaging, and your metal-ion testing.
Federal law narrows things further, since states cannot impose device requirements “different from, or in addition to” federal safety and effectiveness requirements (21 U.S.C. § 360k(a)). How far that reaches depends heavily on which FDA pathway the device went through, and courts have treated devices differently on that basis. It is among the first questions a Chicago product liability lawyer asks, and the same analysis drove drug cases like the Pradaxa litigation.
Illinois Deadlines Are Not Just “Two Years”
Device injuries surface late, which is why product cases carry a second clock that can close before the ordinary Illinois statute of limitations runs out. A wrongful death claim generally has two years from the date of death (740 ILCS 180/2).
| Rule | What it means |
|---|---|
| Injury limitation (735 ILCS 5/13-202) | 2 years after the cause of action accrued |
| Discovery rule (735 ILCS 5/13-213(d)) | 2 years from when you knew or should have known of the injury, but never more than 8 years after it occurred |
| Statute of repose (735 ILCS 5/13-213(b)) | Nothing after 12 years from first sale by a seller or 10 years from delivery to the initial user, whichever expires earlier |
Your own conduct matters as well. Illinois reduces damages in proportion to your share of the fault, and bars recovery entirely only if you are more than 50% responsible (735 ILCS 5/2-1116).
Frequently Asked Questions
What is the average settlement for a hip replacement lawsuit?
There is no meaningful average. Reported outcomes in the metal-on-metal hip litigation ranged from defense verdicts to very large awards, and most individual settlements were confidential. Value depends on whether revision surgery was needed, lost income, medical bills and future care, and the strength of the causation evidence. Past results do not guarantee or predict the outcome of any other case.
How long do I have to file a defective hip implant claim in Illinois?
Generally two years from when the cause of action accrued (735 ILCS 5/13-202), or under the product liability discovery rule, two years from when you knew or should have known of the injury and never more than eight years after it occurred (735 ILCS 5/13-213(d)). A statute of repose can end the claim sooner: twelve years from first sale by a seller, or ten years from delivery to the initial user, whichever expires first (735 ILCS 5/13-213(b)).
Who can be sued over a defective medical device in Illinois?
The manufacturer is the primary target. Distributors, hospitals and other non-manufacturer sellers can often be dismissed once they certify the correct identity of the manufacturer (735 ILCS 5/2-621), unless you show the seller exercised significant control over the design or manufacture, gave the manufacturer instructions or warnings about the defect, had actual knowledge of it, or created it.
Does a recall mean the manufacturer is automatically liable?
No. A recall is useful evidence, but it does not by itself establish that a device was defective or that it caused your injury. You still have to prove defect, causation and damages, and the manufacturer can raise defenses, including preemption under 21 U.S.C. 360k(a) and the Illinois statute of repose.
If an implant failed and you are facing revision surgery, lost income and a stack of bills, it is worth having someone read the records before a deadline decides the question for you. You pay nothing unless we recover money for you. Contact 844-SEE-MIKE for a free, no-pressure consultation.
General information about Illinois law, not legal advice about your situation.
