Delhi HC refuses to consider Johnson & Johnson plea against compensation for faulty hip implants

Delhi HC refuses to consider Johnson & Johnson plea against compensation for faulty hip implants

Aditi Singh

Johnson & Johnson Pvt Ltd yesterday moved the Delhi High Court challenging the Reports of the two Committees formed to examine the issues relating to its faulty Hip Implants and to determine the formula to compute the compensation for the affected patients.

The multinational pharmaceutical company had also sought for setting aside the Press Release issued by the Ministry of Health & Family Welfare asking the company to pay the compensation to affected patients.

Additionally, the company has also prayed for protection from any coercive action by the Government.

The matter was listed for hearing before a single Judge Bench of Justice Vibhu Bakhru who refused to “consider” the plea in light of a pending public interest litigation on the issue of compensation before the Supreme Court.

The principle question in the Petition is whether the Report by Arun Agarwal on the basis of which the Petitioner is being called upon to pay compensation is binding on the Petitioner. The said issue (of compensation) is the subject matter of a PIL before the Supreme Court where the Petitioner is also a party…We, therefore, do not consider it appropriate to pass any order”, the Court recorded while deferring the hearing in the petition to “wait for the outcome of the proceedings” before the Apex Court.

The hearing began with the Counsel appearing for the Petitioner Company seeking a pass-over as the Senior Advocate engaged was not available at that moment. The request was however turned down.

The Petitioner Company argued that the operation of the said Press Release must be stayed as “people will line up outside its door asking for cheques”.

The hearing did not continue for long as the Court was informed that a PIL by an aggrieved patient was already pending before the Supreme Court, and the Reports of the Committees would be placed before the Supreme Court.

The said PIL claims that as many as 14,525 Indian patients have received these implants since 2005 and seeks action against the Company as well as Government Officials responsible for allowing the sale of the implants without clinical trials.

The Petitioner Company, however, claimed before the High Court that it was unaware of any such proceedings before the Supreme Court as no notice was issued to it in the matter.

Stating that the Supreme Court has already heard the matter twice and even passed orders, Justice Bakhru said,

We cannot take cognizance of your ignorance.”

While turning down the Petitioner Company’s request to re-hear the matter on Monday, Justice Bakhru further observed that the matter was neither “important or urgent”.

Two Expert Committees were constituted by the Centre on the issue of faulty Articular Surface Replacement (ASR) hip implants manufactured by Johnson & Johnson Pvt Ltd’s subsidiary.

The first expert committee was constituted in 2017 under the Chairmanship of Dr. Arun Kumar Agarwal to examine the issues relating to faulty ASR Hip Implants. Based on the recommendations of this Committee, the Government constituted a Central Expert Committee earlier this year under the Chairmanship of Dr. R.K. Arya to determine the quantum of compensation.

The formula as determined by the Arya Committee has been accepted by the Government of India, the Press Release dated November 29 states.  The said formula is based on the percentage of disability, age factor and risk factor.

Claiming to have paved the way for patients to secure compensation from Johnson & Johnson “in days to come”, the Release reads,

Compensation will be paid in a time-bound manner through bank accounts of the affected persons by M/S Johnson & Johnson Pvt Ltd.

Applying the formula, the patients suffering due to faulty hip implants would get as much as ₹1.2 crore each and an additional ₹10 lakh for “non-pecuniary” losses, Mint has reported.

The amount shelled out by the Company as compensation in the United States of America runs into millions of dollars.

Holding J&J liable,  Courts in the United States of America last year had awarded compensation of over $500 million to twelve patients injured by the faulty implants.

The Petitioner Company was represented by Advocates Ashwin Sapra and Biplab Lenin.

Centre was represented by Standing Counsel Amit Mahajan.

The matter would be heard next by the High Court on February 26.

Read the Press Release:


Image taken from here.

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