20 Sep 2016

NZ hip claimants seek chance to sue Johnson & Johnson

From Nine To Noon, 9:09 am on 20 September 2016

About 40 patients who received faulty hip implants will go to court tomorrow to seek better compensation for pain and suffering.

The High Court hearing in Wellington concerns a device implanted in about 400 New Zealanders between 2004 and 2010.

The ASR device, made by Johnson & Johnson subsidiary DePuy, was the subject of an international recall in 2010.

One of the claimants, New Zealand lawyer James Elliot, told Nine to Noon many patients suffered from pain, permanent disability, the inability to work and potential metal poisoning.

"What is known is that the two primary constituents of the metal which is involved, which is chromium and cobalt, which are released into the body on a microscopic level and sometimes even greater particles than that, have carcinogenic risks, have long-term organ risks."

Mr Elliot said lives had been ruined and global class action has been the result - in the UK, the US, Ireland, Canada and Australia.

As well, he said, the device maker has relied on medical specialists to tell patients about the recall, and he believed there would be patients with the device implanted who still did not know it may be faulty.

"We don't know that every patient who received one of these devices still, to this day, five or six years on, has been made aware of the fact that they received one of these devices and that they've been recalled.  It's entirely possible that there are some patients out there who are suffering and who still don't know the reason why."

In this country DePuy has paid for revision surgery and some other costs but has refused to meet major losses by patients, he said.

Under ACC, those who got the implants may seek exemplary or punitive damages but not compensatory damages - and a lawyer acting for the New Zealand patients, Liesel Theron, said that was unfair.

"Just the fact that they happened to be in New Zealand and got it here, to them it seems very unfair that that should make the difference between being fully compensated for the damage that's been caused to them, or not."

She said the hearing tomorrow and Thursday would seek compensatory and exemplary (punitive) damages. It would also seek a declaration that Accident Compensation legislation did not prevent people in this country seeking compensation from overseas companies whose faulty products caused personal injury.

Ms Theron said overseas companies, including Johnson & Johnson, did not contribute to the ACC scheme.  If New Zealanders were prevented from holding such companies accountable in negligence or under the Consumer Guarantees Act, the companies were obtaining a windfall at New Zealanders' expense.
Some New Zealand patients have earlier tried to join class action in Britain, but that attempt was unsuccessful.

Australian patients received a $A250m settlement in March after a 17-week trial.