Smith & Nephew hip implant lawsuits survive preemption motion, advance toward trial

A federal judge overseeing more than 300 lawsuits against Smith & Nephew over the company’s recalled BHR hip implant system has ruled that numerous claims made by plaintiffs will advance toward trial.

Hon. Catherine Blake, in a decision that followed eight months of briefing and arguments, held that claims including negligence, failure to warn, breach of express warranty, and negligent misrepresentation are not subject to the company’s motion to dismiss based on express and implied preemption. Smith & Nephew had asked the court to dismiss every single claim made by every one of the 300-plus plaintiffs in the litigation, due to the manner in which the company received FDA approval to market the BHR, which stands for Birmingham Hip Resurfacing. The ruling means those plaintiffs and others will be able to proceed toward trial, including discovery, depositions and experts to hold Smith & Nephew accountable for a recalled metal on metal device that has an unreasonable risk of failure, especially in women.

The medical device team at Jones Ward PLC filed many of the first lawsuits against Smith & Nephew in the nation, and the firm represents more individuals with filed lawsuits against the company than any other law firm, spanning more than 30 states. Partner Jasper Ward is co-lead counsel in the Maryland litigation, working with Alex Davis and half a dozen other attorneys and staff members at the firm representing Smith & Nephew victims from Alaska and Hawaii to New York, Florida and dozens of other states in between.

Plaintiffs survive preemption challenge

In the order issued March 26, 2018, Judge Blake wrote that most of the claims made by plaintiffs so far should continue forward in court, and not be dismissed.

“An international consensus on the danger of metal-on-metal hip replacement systems, like the BHR, was formed shortly after Smith & Nephew began marketing its device…. The plaintiffs’ remaining claims all, at least facially, survive express preemption because their elements may be satisfied by a violation of the federal regulations.” 

BHR hip failures

The metal-on-metal BHR device is similar to other failed metal hips including the DePuy ASR, the Zimmer Durom, the Biomet M2a Magnum and the Wright Conserve. The BHR, which stands for Birmingham Hip Resurfacing, can be used in at least two types of hip replacements. The first type, called a resurfacing, was approved by the FDA in 2006 and includes just a metal cup and a matching femoral head or ball. Jones Ward represents dozens of patients across the U.S. with failed resurfacing systems. The second type of operation is a total hip replacement using the same BHR cup, matched with a modular femoral head and a traditional hip stem. Smith & Nephew never received approval from the FDA to sell this device configuration in the U.S., but numerous patients backed by Jones Ward are now filing lawsuits stating that Smith & Nephew promoted the unapproved system to surgeons and the public anyway. The system is just as failure-prone as the BHR when used in a resurfacing procedure, the lawsuits claim, and it may even be worse. Derek McMinn, the British designer of the BHR, recently warned that surgeons must perform at least 1,000 operations with the BHR to learn how to safely implant the system.

How do I preserve my rights?
If you do not file a lawsuit within a certain amount of time, you may lose your right to compensation due to the Statute of Limitation. This deadline is different in each state, and it varies depending on the claims you are making in the lawsuit. In Kentucky, for example, the deadline for a product liability claim is one year. However, the same claim in Indiana is two years, and in Florida it is four years. For a free evaluation of your potential Smith & Nephew BHR hip recall claim, contact Attorneys Jasper D. Ward or Alex C. Davis.

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