Smith & Nephew asked a Maryland federal court Wednesday to dismiss 55 suits in the ongoing multidistrict litigation (MDL) over the company intentionally misrepresenting the safety of its Birmingham Hip Resurfacing (BHR) metal hip implant, arguing the statutes of limitations on these patients’ claims have expired.

The medical device manufacturer asserted that these patients are simply hoping that the court will not scrutinize their cases. Consequently, they could slip though the cracks and take part in any potential settlement. However, the motion to dismiss claims that the dates of these patients’ hip surgeries make it clear that the statutes of limitations have passed.

Flickr/Ezra Pucci

The motion came along with several other filings in the MDL. This includes discovery orders from District Judge Catherine Blake, who is overseeing the litigation. One of these orders clarified a March 26 ruling partially granting the company’s motion to dismiss, following push back from Smith & Nephew.

Smith & Nephew BHR Hip Implant Preemption Order

In her March opinion, Judge Blake ruled that federal law preempts strict liability claims, as well as claims that the manufacturer should have changed its labeling or issue warnings and Smith & Nephew’s false assertions that the BHR metal hip implant was safe. Smith & Nephew then argued that the judge’s order “silently dismissed” any claims she hadn’t expressly noted as being preempted. However, Judge Blake indicated this is a clear misunderstanding.

“It was never the court’s intention to expressly identify each of the plaintiffs’ surviving claims and arguments,” she wrote. “It appears Smith & Nephew assumes that all claims and arguments not expressly identified as not preempted are preempted. But the court made clear that the opposite is true — all claims and arguments not expressly identified as preempted are not preempted.”

Judge Blake’s March order certainly trimmed the scope of the MDL, including dismissing a manufacturing defect claim. However, she left much at play, including failure to warn, negligent misrepresentation, and state law claims for negligence.

But, with Judge Blake handing the company a discovery win, Wednesday’s order wasn’t entirely bad for Smith & Nephew. Plaintiffs were pushing for depositions to discover parties involved with the device. However, the judge ordered the use of interrogatories instead.

“It is … hard to see how subpoenaing testimony from someone who can identify those people is any more efficient than interrogatory requests to the same end,” the judge wrote.

Smith & Nephew Metal Hip Litigation

There were about 200 lawsuits in the MDL as of March. Plaintiffs allege that friction from the hip implant’s metal parts can cause metallic debris to accumulate in the bloodstream, leading to serious and debilitating medical complications.

In her March order, Judge Blake noted two recalls over the BHR metal hip implant. Smith & Nephew issued the first recall in 2007 due to labeling issues. In 2015, the company issued another hip recall after several competitors recalled similar devices. In the second instance, the company voluntarily recalled some of the devices due to unreasonably high failure rates. Specifically, these failure rates pertained to women, men over 65, and men with a specific device size.

Smith & Nephew metal hip plaintiffs claim that the company delayed reporting hundreds of device adverse event reports and complaints to the FDA and entirely failed to report the BHR hip implant was wearing down quicker than expected.