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What is Going on with DePuy ASR Hip Replacement Litigation?

7 comments

I’ve been reading reports by various bloggers, Bloomberg News, and the National Law Journal that Johnson & Johnson, DePuy Orthopaedic’s parent company, is considering whether to agree to pay $3 billion to settle more than 10,000 cases filed concering its defective metal-on-metal ASR hip replacement device.  The implication is that the MDL plaintiffs’ steering committee and/or other plaintiff lawyers who control significant inventories of these cases are likewise discussing the $3 billion sum.  This sum works out to about $300,000 per claimant.  If this is true, one hopes that the settlement agreement makes provisions for additional compensation for those claimants who had to have their implants explanted or who had other extraordinary injuries.  Otherwise, $300,000 per claimant is insufficient.

I recall early predictions about the settlement fund that would be required to resolve the DePuy hip implant recall.  Comparisons were made to the last major hip implant settlement, which involved Sulzer Orthopaedics.  Mass tort attorneys noted that the Sulzer settlement ( approximately $150,000 per claimant) paled in comparison to what it would take to settle the DePuy ASR litigation.  The reasons included the financial realities of the Sulzer litigation.  Sulzer was a relatively small company on the verge of bankruptcy and facing insurance coverage problems.  The amounts predicted as the average case value for the DePuy ASR claimants were no where near as low as $300,000.  The Sulzer settlement agreement did include an extraordinary injury fund.  One hopes that the $3 billion being discussed in connection with the DePuy ASR litigation would be supplemented to incude an extraordinary injury fund, with extraordinary injuries defined to include all explant surgeries, deaths, and serious injuries.

The National Law Journal reports today that “DePuy Orthopaedics, Inc. has quietly settled bellweather cases that had been scheduled for trial over its hip implant device.”   According to the NLJ,

The abrupt resolution of cases that had been set for trial in September and  October came after a Los Angeles jury awarded $8.3 million against DePuy on  March 8, but the company won a defense verdict in Chicago on April 16. According  to Bloomberg News, Johnson & Johnson, DePuy’s parent company, is  weighing an offer to pay $3 billion to settle more than 10,000 cases over its  ASR device.
….
In the first trial, a California state jury awarded Loren Kransky $8.3 million but rejected his bid for punitive damages. The  second trial, in state court in Illinois, found no liability against DePuy,  which was allowed for the first time to put on evidence that the U.S. Food and  Drug Administration had cleared the ASR device for sale.

The next cases that had been set to go before jurors in state courts have  settled. Bergen County, N.J., Judge Brian Martinotti issued an October 8 order  indicating that the first bellwether trial in that docket “has been resolved.”  No settlement terms were disclosed; trial had been scheduled for October 21.  Martinotti scheduled a case management conference for November 21.

In the Kransky case, which took place in Los Angeles County, Calif.,  Superior Court, DePuy was scheduled to file an opening brief before the state’s  Second District Court of Appeals this month. That brief was put off until  December. The case was part of the California state court consolidated  litigation, pending before San Francisco County, Calif., Superior Court Judge  Richard Kramer. On October 1, plaintiffs’ attorneys filed a notice that the next  case scheduled for trial had settled. Terms of that deal were not disclosed.  Trial in that case had been scheduled for October 15.

….

The next bellwether case in the California state litigation is scheduled for  January in Los Angeles, he said.

Meanwhile, in multidistrict litigation in Cleveland, Ohio, U.S. District  Judge David Katz adjourned for 90 days a September 24 trial in the first bellweather case on the federal docket, saying that “scheduling of  expert witnesses by both parties has become an extremely difficult task.” No new  date has been scheduled. Ellen Relkin of Weitz & Luxenberg in New York,  co-lead counsel for the plaintiffs’ steering committee in the MDL, did not  respond to a request for comment.

 

I look forward to the MDL plaintiffs’ steering committee’s eventual comment, and hope that the deal for seriously injured claimants is either sweetened or rejected.  Another Kransky-type verdict would go a long way toward sweetening the offer.

 

7 Comments

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  1. R Black says:
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    The price of poker goes up or down depending on the cards you hold. DePuy wants to settle before another card is turned thus the state court
    settlements. The Federal Judge will pressure plaintiff attorneys to settle. My guess is the additional time is to work out a settlement formula based on the 3 billion.

    The judge does not want a lengthy trial.

  2. Linda Ben-Zvi says:
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    I am a US citizen who lives in Israel where 4 years ago I had two ASR hip replacement surgeries. My cobalt and chrome levels have been climbing and surgeons in NYC and Israel have determined tha I need revision surgery in my right hip.
    Can I sue Depuy in the US although I don’t live here?

  3. James Elliott says:
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    Interesting that all this speculation and calculation is about US claims and patients only. There were 93,000 people worldwide who received this device – what about compensation for them?

  4. JD says:
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    I could see your concern Mr Elliot but I dont think thats the U.S. victims responsibility. I would think you need to direct THAT at the bosses at Johnson & Johnson. $300k for ANYONE thats been victimized by this DISGUSTING situation is nothing less than a SPITTING in the face by Johnson & Johnson! Johnson & Johnson has a CAPITALIZATION VALUE of just over $100 BILLION DOLLARS! Why are they even getting LISTENED to at THREE BILLION? Have these attorneys heard of the ART of NEGOTIATION? You know they start LOW and you start HIGH or vice versa? I smell a RAT.

  5. Mrs. Preston says:
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    is anyone taking into consideration that the medical bills for the explant surgeries and the chromium and cobalt blood testing are all being covered by Johnson&Johnson already?
    Also to the author of this article the term is bellwether, not bellweather!

  6. JD says:
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    So Mrs Preston are you saying J&J should be applauded or that the $60-70k in bills they are paying should be DEDUCTED from the settlement? What ARE you saying, please specify?

  7. SL says:
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    I had a total hip replacement in 2007. In 2010 my hip started showing signs of failure. My cobalt and chromium levels revealed that I was being poisoning and that I needed to have a revision surgery. In July of 2012 I had a revision surgery. On my 6 week check up it was discovered that my hip was out of socket again and that I needed to have another revision surgery. The damage from the original surgery caused all of this. I now suffer from metalosis and have nerve and tissue damage and will require more hip surgeries. All of this could have been prevented if Johnson & Johnson were truthful about the failure rates of these metal on metal hips.and the process of how they used the 501 k process to allow these hips to stay in the market and still be implanted in people who needed total hip replacements. My life has been ruined by Johnson & Johnson and the quality of life that I now have will never improve. They put profits and greed over the well being of patients and in the process have ruined peoples life’s. There is no amount of money to compensate for the pain, suffering, mental anguish, and medical bills that I have to live with. My credit has been ruined, I will never ever be able to work again and now live in fear that my hip will keep popping out of place. I have to have my blood tested every month and live in constant pain with no hope of relieve. I will never ever enjoy the things that I use to be able to do. I am only 50 years old and Johnson & Johnson is responsible for the damage that they have caused me. They need to accept culpability for their actions and be held accountable. To put a price tag on what they have caused will never make up for the harm that they have done to me and the thousands of other people. I keep up with the news on these lawsuits and have not seen to many people that had to under go back to back revision surgeries They need to compensate me for the damage that they have caused. The evidence is there for everyone to see. When you play God with someone’s life and totally destroy the person in the process you should have to pay. I hope you do the right thing and accept culpability for your actions and the harm that you have caused. Greed is the root of all evil and you are liable and need to pay dearly for your actions. and harm that you have caused. .