Earlier this week, the U.S. First Circuit Court of Appeals denied Johnson & Johnson (NYSE:JNJ) subsidiary DePuy Orthopedics’ bid to stay a decision reviving a False Claims Act suit over its allegedly faulty hip implants.
Just days ago, the company urged the court to stay its decision while it appeals to the U.S. Supreme Court.
The False Claims Act lawsuit was brought by a pair of British surgeons in 2012 over the company’s since-discontinued Pinnacle metal-on-metal hip implant.
Drs. Antoni Nargol and David Langton alleged that DePuy Orthopaedics committed fraud when it billed federal agencies for Pinnacle implantation procedures, because it knew of and concealed problems with the device.
Nargol, an early adopter of the Pinnacle MoM implant and a former member of DePuy’s Pinnacle user group, later became an expert witness for the plaintiffs in several product liability lawsuits brought over the Pinnacle device and another MoM hip implant, the DePuy ASR. Langton is a consultant for the FDA on failure rates for MoM devices and is also a plaintiffs’ witness in several MoM liability cases.
The doctors began reporting defects to DePuy in 2007 and, According to their complaint, “both the relators had personal experience in implanting the Pinnacle MoM device in their patients and began to alert defendants of the device’s defects in 2009,” after 2 years after they began reporting the problems to DePuy.
The lawsuit alleged that DePuy knew the revision rate for the Pinnacle MoM was 15%, not the 4-4.5% it reported to the FDA or the 0.1% rate it advertised to surgeons.
In February last year, a judge form the U.S. District Court for Massachusetts granted the company’s motion to dismiss the case.