A recent DePuy ASR lawsuit is getting a second chance after an Illinois judge has decided to include previously barred testimony in a new trial.

Plaintiff Carol S. filed a DePuy ASR lawsuit against the makers of her hip replacement system citing negligence. She claims in her DePuy ASR lawsuit that her hip replacement system by nature of design and manufacture was prone to failure.

She received her DePuy Articular Surface Replacement XL (ASR) in 2008, but in 2010 the hip replacement device was recalled. Her DePuy ASR lawsuit alleges that the ASR cup was designed poorly and that DePuy was negligent. She claims that it was prone to failure and that the ASR cup caused excessive wear to a greater degree than was expected.

Carol alleges in her DePuy ASR lawsuit that DePuy should have warned her and the medical community about the complications associated with the device and that it did not recall the DePuy ASR knee replacement system in a timely manner.

During her original trial four years ago, the testimony of an expert witness was thrown out. According to Law360, David J. Langton, a surgeon and a research fellow at Newcastle University, was called to testify. He has a practice in orthopedic surgery and does focused research on metal-on-metal hip implants like Carol’s DePuy ASR implant as well as explant procedures.

His testimony would have most likely centered around the ASR cup’s endurance but DePuy’s witnesses took issue with the fact that his methodology, they claimed, was not an accepted scientific methodology.

Because of this, the original judge was convinced that Langton’s testimony would have caused significant prejudice and swayed the trial.

The current judge for this DePuy ASR lawsuit, Cook County Circuit Judge Deborah Mary Dooling, wrote that “[t]he court in its pretrial ruling defined the relevant scientific community as the metrology and tribology scientists; however, that ruling was incorrect because that community designation was too restrictive.”

She went on to assert: “Here, the relevant scientific community includes all the scientists, experts, practitioners and surgeons in both the scientific and medical field associated with the implant industry.”

Returning to look at the testimony of Langton, Judge Dooling wrote that peer reviewed literature showed that Langton’s methodology is generally accepted in the scientific community.

The judge also wrote, “A re-examination of the transcripts of the testimony of defendants’ consultant experts at the … hearing make clear plaintiff is correct when she asserts that defendants’ attack on Dr. Langton’s volumetric wear calculations does not show his method is not generally accepted but only that the defendants’ consultants disagreed with the way Dr. Langton applied mathematics and computer programs to calculate volumetric wear on explant components.”

Because of this, Judge Dooling has decided to grant Carol’s post-trial motion for a new trial. Dooling noted that the assertions of the DePuy witnesses should not have bearing on if a testimony is admissible.

This DePuy ASR Lawsuit is Case No. 11-L-009352, in the Circuit Court of Cook County, Illinois.