Weitz & Luxenberg’s request for consolidation of cases filed in numerous federal courts into a multidistrict litigation (MDL) and to transfer actions against Exactech to the Eastern District of New York in Brooklyn was approved on October 7 by the U.S. Judicial Panel on Multidistrict Litigation. The MDL is No. 3044 – In re: Exactech Polyethylene Orthopedic Products Liability Litigation. (1)
W&L Attorneys Take the Lead
W&L partner and practice group chair Ellen Relkin and attorney Danielle Gold took the lead in this litigation effort, initiating this petition in June.
Ms. Relkin points out, “Multidistrict litigation is the best way to efficiently proceed in these circumstances, and I am excited the Panel approved our request.”
She explains, “Thousands, of patients across the country have received defective implants that were recalled far too late after Exactech became aware of problems. While a lawsuit cannot repair the serious physical damage they have suffered, compensation can ease their worry regarding medical bills, loss of income, and in some cases, permanent disability. They should be compensated for their severe pain and suffering. At Weitz & Luxenberg, we’re ready to take on the litigation challenges ahead to get justice for people harmed by large corporations.”
Growing Number of Exactech Issues
Both Ms. Relkin and Ms. Gold are key members of W&L’s Drug and Medical Device Litigation team.
At the time the petition was filed, 27 plaintiffs had filed lawsuits in federal court. All had received Exactech hip and knee polyethylene inserts that failed, leading to revision implant surgeries.
As of the end of September, the number of cases had grown to 73 pending cases in federal court. Of these cases, Weitz & Luxenberg has filed 17 of those actions and we expect that number to climb.
Exactech Liner Recalls
Since August 2021, Exactech has recalled roughly 200,000 of its polyethylene hip, knee, and ankle devices after discovering instances of premature wear. The recalled devices contain Exactech’s hip, knee, and ankle ultra-high molecular weight polyethylene.
For hip implants, Exactech has recalled its Connexion GXL, ACUMATCH, MCS, and NOVATION acetabular liners. Specific Exactech models affecting a knee implant include OPTETRAK®, OPTETRAK Logic®, and TRULIANT® tibial inserts, as well as components. In addition, the company has recalled its VANTAGE® fixed-bearing liner components for ankle implants.
Packaging Did Not Meet Specification
The company has blamed “off-specification” packaging. Exactech indicated the packaging might not adequately protect certain devices’ polyethylene components against oxidation. The packaging was intended to provide the devices with eight full years of shelf life, according to the company.
Beginning in 2004, certain Exactech devices came in vacuum bags that were missing a secondary barrier layer. When present, the second layer contains ethylene vinyl alcohol. Exactech says this layer was supposed to improve the initial layer of oxygen resistance.
JPML Met in September
The Judicial Panel on Multidistrict Litigation met in St. Louis, Missouri, at the end of September, to hear argument from the petitioners and their opponents. The Panel considered several potential nationwide MDLs. One of these involved Exactech’s ankle, knee, and hip-replacement device liners.
Ms. Relkin addressed the panel explaining “there is a geographic cluster of these devices being implanted predominantly in New York. That’s why of the 73 cases approximately in suit now more than half” were filed in New York federal courts. Ms. Relkin also stated, “The Eastern District of New York has a very rich heritage on MDLs, starting with the late great Judge Weinstein doing Agent Orange” which involved Vietnam Veterans exposed to the toxic herbicide. (2)
Although Exactech supported consolidation, the company said the cases should be assigned to judges in either Louisiana, South Carolina, or Florida.
W&L Accepting Exactech Clients for Lawsuit
Weitz & Luxenberg is continuing to accept and represent clients. Reach out to us if you have already had, or need to undergo, a revision surgery because the Exactech hip, knee, or ankle liner of your implant failed.
We also encourage you to contact us if you have been having symptoms such as swelling, clicking, pain, limited mobility, or stiffness after being implanted with a recalled device. It is critical that you obtain counsel before a revision, to ensure steps are taken to preserve your device that gets surgically removed.
Many are Suffering Due to Defective Device
If you have been having problems, you are not alone.
The number of complaints has continued to climb. Patients have undergone X-rays, MRIs, aspirations, and other diagnostic procedures to evaluate the status of their implants. Many have learned their prosthesis has loosened, their inserts have degraded, and the polyethylene from their devices has led to fluid buildup around their prosthetic joint. In some cases, polyethylene particles are even observed floating in the fluid that is drawn from aspirations. These polyethylene particles cause the body’s immune system to react, often leading to bone loss called osteolysis. Complicated revision surgeries are often necessary.
While the surgeons were supposed to send recall notices to all patients, not all patients received these letters if the doctors retired or the patients moved.
The costs can add up along with the disruption to your quality of life. Choosing a national law firm such as Weitz &a Luxenberg, which has extensive experience handling complex defective medical devices, is critical. Ms. Relkin has served as court appointed lead counsel in MDL and state court consolidated litigations involving the recalled DePuy ASR metal-on-metal hip and the Stryker Rejuvenate and LFIT V40 hips. We encourage you to contact us for legal guidance.