What is Going on with DePuy ASR Hip Replacement Litigation?

By Michael Phelan | October 18, 2013

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.
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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.

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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.

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