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.
