DePuy ASR Update

Last week, it was reported that five people close to the DePuy ASR MDL 2197 litigation confirmed settlement discussions.  In response, the leadership of the Executive Committee, emailed the following statement to those reporters: “The lawyers and leadership in the cooperating jurisdictions are working for the benefit of the 35,000 United States patients who have this recalled medical device.  We have reviewed some 50 million pages of documents that have been produced and have taken over 50 depositions.  At this time we have a significant number of trials set with the company and we are primarily focusing our efforts on trial preparation.  Any comment relating to settlement that does not come from leadership, the Court, or from the company itself, is speculative and uninformed.” 

 

The first case will start in Los Angeles on Tuesday.  While it is part of the California proceedings, California leadership and the MDL leadership have been working cooperatively to develop evidence, witnesses and experts for this case as well as all cases across the country.  Next month, another trial is set to start in Illinois which is also part of the cooperating jurisdictions.   Judge Katz, who presides over the MDL, selected two plaintiffs’ cases for trial.  The first will occur in May in Toledo and the second will be in July. 

DePuy ASR Trial Update

In what was expected to be the first DePuy ASR case to proceed to trial and was scheduled to begin this week, has ended with a dismissal. The Plaintiffs’ claims against the DePuy and Johnson & Johnson defendants are to be refiled in the federal multidistrict proceeding in the U.S. District Court for the Northern District of Ohio. Some media and news sources had reported that the case had settled, which was incorrect. The dismissal order entered January 8 was with prejudice as to claims against in-state defendant Chesapeake Surgical Ltd., pursuant to stipulation, but without prejudice to claims against DePuy Orthopaedics Inc., and affiliates.

First DePuy ASR Trial Set to Go Out Monday January 7th

 

The first DePuy ASR hip trial in the nation is scheduled to begin on Monday, January 7, 2013, in Prince George's Maryland Circuit Court. Bellwether trials in the federal DePuy ASR hip litigation will commence later this year. The trial is expected to last three weeks, according to court documents. (Jackson, et al. v. Chesapeake Surgical Ltd., et al., CAL 10-32147)

Thousands of DePuy ASR hip lawsuits are also pending in a multidistrict litigation underway in U.S. District Court, Northern District of Ohio, MDL No. 2197. According to court documents, the first trial in the federal DePuy ASR hip litigation will begin on May 6, 2013, with a second trial set for July 8, 2013.

6,000 DePuy ASR hip replacement lawsuits have been consolidated into the MDL based in Toledo, Ohio. Those proceedings are overseen by U.S. District Judge David A. Katz.  There are another 2,000 cases filed against Johnson & Johnson’s subsidiary DePuy across the United States, including lawsuits filed in Nevada, Maryland, California, Wisconsin, Florida and Utah.

The MDL is due to convene for a status conference in January 2013, during which time the court will most likely detail preparations for the first bellwether trials.

Although the statute of limitations has run in many states, people who have not yet filed a lawsuit should contact Booth Samuels toll free at 866-515-8880.

 

Sea Change for the 5th Circuit???

 

The 5^th U.S. Circuit Court of Appeals, widely viewed as one of the nation's most conservative federal appellate courts, could see a remarkable change in its makeup if President Barack Obama appoints jurists more aligned with his political beliefs in his second term.

Ten of the 15 active judges serving on the New Orleans-based court were nominated by Republican presidents. However, six of those GOP-nominated judges are eligible for senior status or will be in the next four years, a change that would allow the Democratic president to nominate their replacements.

The 5^th Circuit, whose jurisdiction covers Texas, Louisiana and Mississippi, is composed of 17 active judges. Two judges nominated by Obama already serve on the 5^th Circuit. Of the remaining active judges, six were nominated by George W. Bush; four were tapped by Ronald Reagan; two were picked by Bill Clinton and one was nominated by Jimmy Carter. The court also has seven senior judges, five of whom were nominated by Republican presidents. Currently, the Court has two open seats.

The Circuit has a reputation for being a corporation-friendly, pro-prosecutor foe of death penalty appeals and abortion rights advocates. It also tends to favor employers over employees and shows more tolerance for organized, state-sanctioned prayer than other circuits. The political make up of the bench has a lot to do with this reputation.

Federal judges do not have a mandatory retirement age and are not obligated to take senior status, a form of semi-retirement that allows them to continue hearing cases. Because we do not know how many seats may become open, even a handful of vacancies would give Obama an opportunity to reshape the court's ideological makeup during his second term. Though doubtful, it is plausible that the Democratic-nominated judges among active 5^th Circuit judges could go from being a 2-to-1 minority to holding a slim majority before Obama leaves office.

A senator from the state where a vacant seat is located can block a hearing on a nomination. Texas, Louisiana and Mississippi each have at least one Republican senator. Also, Senate rules allow any senator to prevent a confirmation vote on a nominee.

Judges are not immune from basing their retirement decisions on political considerations, so the 5th Circuit's Republican-nominated judges may be inclined to wait out Obama's second term before vacating their seats.

Obama has made a deeper imprint on the Richmond, Va.-based 4^th U.S. Circuit Court of Appeals, long considered an equally conservative court. He nominated six of the 15 active judges on the 4th Circuit, swinging the court's majority in favor of Democratic nominees.

Although a Judge’s political background is a factor in gauging how they will rule in the future, it is not always a certainty. For example, when the U.S. Supreme Court considered the constitutionality of the Obama health care law's individual mandate, Chief Justice John Roberts, who was nominated by George W. Bush, sided with the Democratic-nominated justices in upholding the law.

Even if Obama is able to fill several 5^th Circuit seats, most doubt he would try to stack the court with liberal-leaning judges. To get those he wants to appoint, Obama may need to nominate candidates with centrist credentials to avoid opposition from Republican senators who could hold up the nominations.

The President has nominated 42 circuit court judges and has had 30 confirmed as of early December. Obama's confirmation rate is fairly consistent with the first terms of Clinton, who had 30 of his 39 nominations confirmed, and George W. Bush, who had 34 of 56 nominees confirmed. The President may be picking up the pace on his appointments, however. The White House submitted 15 nominations for district court seats since Congress broke in August, far more than his most recent two predecessors did during the same period of their presidencies.