Rumor of Global Settlement in DePuy ASR Cases

 

It is rumored that Johnson & Johnson, the world’s biggest seller of health-care products, has discussed paying more than $3 billion to settle lawsuits over its recalled hip implants. However, any comment relating to settlement that does not come from the plaintiff’s leadership committee, the court, or from the company itself remains premature, uninformed and a guess. Despite this, major news sources such as Bloomberg News has reported on the rumor.

 

According to the news bulletins, New Brunswick-based J&J seeks to resolve as many as 11,500 lawsuits in the U.S. and has considered paying more than $300,000 per case. Such a settlement would exceed $3 billion if most plaintiffs accept the terms, an amount 50 percent larger than that proposed in previous discussions last January. Five people familiar with the talks had said J&J officials were willing to pay about $2 billion to resolve the cases. Lawyers for plaintiffs rejected that amount as too little, the people said.

 

Any proposed global settlement would be affected by the outcome of seven bellwether trials set between September and January. There have already been two cases tried to a jury on the defective hips. J&J lost an $8.3 million verdict in the first trial over the ASR device and won the second. In the first case, a California jury in the spring of this year awarded damages to a retired Montana prison guard. But the jury did not find exclusively for the plaintiff, finding that although the device was defectively designed, DePuy did properly warn of the risks. Also, the jury did not find that DePuy was liable for punitive damages. DePuy is appealing that verdict.

 

Six weeks later, in the second ASR case tried in the country, a Chicago jury ruled for DePuy in rejecting a defective design claim by an Illinois nurse. Both of those cases have been extensively covered on this blog.

 

Seven other similar trials are coming up that will help lawyers for both sides realize the strengths and weaknesses over damages and liability. This will help in negotiating any global settlement. The first trial is scheduled to begin September 9th in federal court in Cleveland. U.S. District Judge David Katz is overseeing that lawsuit by Ann McCracken, 58, a resident of Rochester, New York, who needed two replacement surgeries, known as revisions, after her ASR implant. This case was originally set to begin in June, but was continued until September. See my previous blog posts for more information on that case.

 

Judge Katz is the presiding judge in the MDL, and is overseeing about 8,000 cases. About 2,000 cases are pending in the California Judicial Council Coordinated Proceeding before Judge Richard Kramer in San Francisco. The remaining cases have been filed throughout the United States in various jurisdictions.

 

Trials also are scheduled in state courts in San Francisco in October; in Hackensack, New Jersey, in October and January; in West Palm Beach, Florida, in November; in Chicago in December; and in Los Angeles in January 2014.

 

The corporation is pushing to resolve U.S. cases by early next year, according to the unnamed sources. J&J’s DePuy unit recalled 93,000 implants in 2010, including 37,000 in the U.S., after more than 12 percent failed within five years. That rate appears to be climbing, along with lawsuits brought by patients blaming the chromium and cobalt devices for pain, metal debris and replacement surgeries.

 

It is estimated that J&J has spent about $993 million on medical costs and informing patients and surgeons about the ASR recall. J&J has also set aside an undisclosed amount for litigation, which it increased before June 30. For more information on that side of the story, see some of my previous blog posts.

 

Lawyers for hip recipients are still reviewing more than 50 million pages of J&J documents and conducting pre-trial depositions of company officials and experts to prepare for those cases. While settlement talks continue, J&J and lawyers for hip claimants have agreed on the broad outline of a so-called “global settlement” covering all U.S. cases, the sources said.

 

According to the unnamed sources, any proposed global settlement would compensate patients on a sliding scale. This sliding scale is best referred to as a matrix or grid. A plaintiff would be placed into a grid or matrix category on such factors as age, extent of injuries, and if they were bilateral. This system would be very similar to the Total Body Formula global settlement negotiated by Pittman, Dutton & Hellums managing partner Chris Hellums.

 

Any chance at a global settlement will still have to overcome several obstacles. One includes the number of years that J&J may potentially have to pay future claims. Another is whether the settlement would include reimbursing Medicare and other health insurance companies such as Blue Cross Blue Shield for claims paid. A third is the amount of compensation for outlier cases, which would include dual hip surgeries, cases where infection prompted long hospital stays, and claimants who are unable to undergo a revision surgery because of their health.

 

If you or a loved one have had hip replacement surgery and have been implanted with a defective DePuy hip, you may be entitled to compensation for medical bills, pain and suffering, lost wages and other injuries. Our firm is currently investigating claims for those people who have been implanted with DePuy hip replacement devices, both ASR and Pinnacle. If you would like a free case evaluation, please contact Booth Samuels at toll free 1-866-515-8880 or at booths@pittmandutton.com.

 

Judge Katz Rules Evidence of Recall Not Allowable In ASR Bellwether Case

In what was a major ruling, Judge Katz of the U.S. District Court for the Northern District of Ohio, the presiding Judge of the DePuy ASR MDL, ruled that evidence of the recall of the DePuy ASR metal-on-metal hip implant can be excluded from a bellwether trial over the device.

The first bellwether trial, Ann McCracken v. DePuy Orthopaedics, is slated for trial beginning September 9th.

Katz ruled last month on a number of pre-trial motions from both plaintiffs and defendants, granting DePuy's bid to keep evidence about the recall out of the trial. McCracken had argued that the recall should not count as a "subsequent remedial measure" following the 2009 implantation of a DePuy ASR LX model.

Katz disagreed, and ruled for DePuy. McCracken had a revision surgery performed in January 2011. Judge Katz noted in his order that evidence relating to the voluntary recall by DePuy of the ASR hip implant was inadmissible in this case because the Plaintiff’s original hip replacement surgery took place prior to when the recall was issued. Judge Katz determined the recall to be a “subsequent remedial measure,” which would have prevented harm if it had occurred prior to the plaintiff’s initial surgery.

Judge Katz also denied a motion by McCracken to exclude evidence of the FDA’s 510(k) clearance process of the device. Although  stated in her motion that the evidence was “irrelevant and prejudicial,” Judge Katz noted that the 510(k) process was the way in which this particular device arrived on the market. He ruled the defendants should be allowed to present the 510(k) process as evidence, as all parties involved would understand this is a clearance process based on an equivalency standard and not just a rubber stamp by the FDA.

We are not sure what this means for the first bellwether trial but I do not think it is a good sign of things to come. We are still confident that the bellwether jury will see the facts in a reasonable light and weigh the evidence accordingly.

Juries Still Finding Against Tobacco Companies

Juries are still finding against tobacco companies nearly twenty years after the first verdicts against them and the billion dollar settlements with several States. Last week, a South Florida jury found R.J. Reynolds guilty of engaging in reprehensible and intentionally reckless misconduct for a smoker's death and awarded $37.5 million to the woman's surviving family. The verdict included an award of $22.5 in punitive damages.

For more information on the case, see the below link:

http://finance.yahoo.com/news/fort-lauderdale-law-firm-wins-140000975.html

CLE Today

I am giving a CLE presentation for the Solo/Small Firm Section of the Birmingham Bar Association today. The topic of the presentation is mass torts for the solo practitioner. It basically is a crash course on how to get, evaluate and handle mass tort claims when that is not your primary practice focus. 

The CLE is being held at the Electra Room at the Alabama Power Building in downtown Birmingham. It lasts from noon to one. There really is no reservation protocol and if you want to show up, you can. I think this will be a really interesting topic and encourage anyone in our area who can attend to do so.

If you are unable to attend but are interested in getting a copy of the materials, email me and I will send you a copy.

Equifax Gets Hit For $18.6 Million

Equifax, one of the three credit reporting agencies, was hit for $18.6 Million by an Oregon jury at the end of July. The problems with Equifax and the other credit reporting agencies have been well documented by the media in recent years- with even CBS's 60 Minutes doing an expose. 

All Americans are at the mercy of these credit reporting agencies. The information on your credit report affects how much interest you pay on credit cards, mortgages, and often determines whether you can even receive a loan at all. It is one of the most important keys to your financial security.

When misinformation is posted on your credit report, it is nearly impossible to fix the problem.  One would think that because these agencies are regulated by the Federal government, there would be protocol in place to protect the average consumer when misinformation is posted. However, this is nearly ever the case. The main problem with these companies is that they are too big and grossly managed. They tend to outsource a lot of their work, which causes lots of problems.

Below are a few links on the Equifax case. 

http://abcnews.go.com/Business/equifax-loses-186-million-lawsuit/story?id=19803421

http://finance.yahoo.com/news/woman-18m-because-credit-report-222728563.html

Most of the time, misinformation is posted because of an identity theft. One of the most important things the average consumer can do to protect themselves from this type of abuse is to monitor their credit reports. 

I represent individuals who have been the victims of identity theft and credit reporting negligence. If you have been a victim of identity theft, or have misinformation reported on your credit report, please contact me at booths@pittmandutton.com or toll free at 1-866-515-8880.

Booth Samuels To Give CLE Presentation

I am giving a CLE presentation next Wednesday, August 14th in the Alabama Power Building in Birmingham, Alabama. The title of my seminar is "A Solo Practitioner's Guide to Mass Tort Claims". My talk will focus on recognizing mass tort claims and how to handle them. It is geared towards an audience of lawyers that do not typically handle mass tort claims. If you're in the area and want to learn more, you can sign up and get more information by clicking on the below link.

https://m360.birminghambar.org/frontend/event.aspx?EventId=86020

Recent Ruling In Alabama 'Slip-and-fall' Case

On July 10, 2013, District Judge Lynwood Smith issued an opinion in Garrett v. Walgreen Co., Inc., 2013 WL 349777 (N.D. Ala.), which is a “gift” to premises owners.  Garrett went inside a Walgreen store on a rainy day and slipped in a puddle of water, not at the entrance but around the cash register area. 

In granting Walgreen’s summary-judgment motion, Judge Smith may have been correct based on the particular facts, which included, Garrett was wearing flip-flops and was aware of a potential problem, Walgreen had put down mats at the door and put up warning signs, Garrett had walked around the store before the fall in the area of the cashiers, the subject water was “clear” and nothing prevented Garrett from viewing the floor. 

The “gift” is Judge Smith’s analysis of Alabama law regarding a “fall caused by snow or rain,” including his statement that such falls are distinguishable from falls in “usual” slip-and-fall cases.  For him, there is no duty on a premises owner to “stand constant vigil with a mop or towel on rainy days.”  To recover, Garrett would have to show the presence of an unusual accumulation of rain water or other circumstances requiring Walgreen to take affirmative measures such as mopping, applying anti-slip compounds, or posting warnings, presumably in the area of the fall. 

Judge Smith appears to treat the “normal” appearance of water inside a store during a rainy day as something that a customer should have to look out for and prevent any slipping or falling and to impose a duty on the storeowner to take remedial measures only if there was an unusually large puddle that existed for some time.