For months now, there has been a push for Stryker Orthopedics to address the out-of-pocket expenses patients have faced relating to the July 2012 recall of their Stryker Rejuvenate and Stryker ABG II hip devices. Recently, Stryker announced they will work with Broadspire Services Inc., a third-party claims administrator, to help address these costs and to work directly with patients.
In their opening arguments last week, plaintiff attorneys introduced evidence that proved DePuy was aware of design flaws in their ASR hip devices for years before they initiated a recall. The DePuy ASR Hip was recalled in August 2010, yet internal documents disclosed at the ASR trial on Friday revealed that the company had received complaints even as they started to market the U.S. version of the device in 2005.
Update: According to HarrisMartin, Maryland plaintiff Moira Jackson and defendant DePuy Orthopaedics reached a confidential settlement in time to avoid what was expected to be the first DePuy ASR trial. Other than their notification to the court that the case was resolved, they have declined to comment. Bellwether Trials are still scheduled to start in May 2013.
The first Bellwether trials for the DePuy ASR litigation are scheduled for May and July of this year. They will also be a critical part of this litigation. Bellwether trials are designed to test the waters and show how a jury would react to similar cases. Settlement negotiations often depend on how the jury awards damages to the plaintiffs. Since the settlement of lawsuits is based on what the jury would award should the case go to trial, a large verdict in favor of the plaintiff would mean DePuy would likely pay more out in settlements in order to prevent trying additional cases.
The first jury trial in the DePuy ASR Hip Implant litigation will be held next week on Monday, January 7, 2013. Moira Jackson of Hyattsville, MD, will appear in Court along with two other DePuy ASR plaintiffs. Prince George’s Maryland Circuit Court Judge Crystal Dixon Mittelstaedt will preside over the trial.
According to sources at Harris Martin, the trial is expected to last about three weeks. Both the plaintiff and defense have requested five days to present evidence.
After a recent request to consolidate pending cases against Stryker Orthopedics in New Jersey State Court, Stryker announced last month that they will not object to the consolidation terms outlined in the petition. This means that cases will likely be consolidated in the requested venue of Bergen County, under Judge Brian Martinotti.
Judge Brian Martinotti has experience with similar cases involving defective metal-on-metal implants. In Addition, the location of Bergen County is close to the defendant’s headquarters. At least 10 cases have been filed so far in the state of New Jersey.
Earlier this month, the United States Judicial Panel on Multidistrict Litigation (JPML) decided that Biomet M2A Magnum hip claims will be centralized in the Northern District of Indiana (See Case MDL No. 2391). The pretrial proceedings will be assigned to the Honorable Robert L. Miller, Jr., who is experienced and well-versed in complex mass tort litigation.
The Panel made this decision despite objections from Biomet, whose lawyers argued against consolidation. Specifically, defendants argued that consolidation of the lawsuits was not appropriate because (1) plaintiffs’ injuries were too different, (2) the Biomet M2A Magnum was not subject to a recall, and (3) the system has been comparatively less problematic than similar hip implant products of its competitors.
However, the Panel’s final position stated that, since the cases involved common questions of fact, consolidation would better serve the convenience of both parties and the witnesses involved.
Although the Panel agreed with plaintiffs on the issue of centralizing the Biomet M2a Magnum claims, the JPML had its own ideas pertaining to the appropriate district for the proceedings. The Northern District of California, the Eastern District of Louisiana, the District of New Jersey, the Eastern District of New York, the Southern District of New York, the Southern District of Ohio, and the Southern District of Texas were all suggestions from plaintiffs in support of centralization. However, the Panel decided on the Northern District of Indiana based on its central geographic location, proximity to Biomet’s headquarters in Warsaw, Indiana, and favorable docket conditions.
The Biomet M2a Magnum litigation now joins the DePuy ASR, DePuy Pinnacle, Zimmer Durom and Wright Conserve as the fifth MDL for metal-on-metal hip implant devices. There have also been motions in multiple states to consolidate cases for the recently recalled Stryker Rejuvenate and ABG II hips.
What is an MDL?
When a drug, medical device, or other type of product is alleged to cause injuries and/or deaths, many lawsuits against the manufacturer of the product can be filed in courtrooms across the country.
If these cases are deemed similar enough to each other, they can be merged into a multidistrict litigation for consistency and efficiency purposes. The goal of the MDL process is to avoid duplicate discovery, inconsistent pre-trial rulings and conflicting verdicts.
The MDL process also helps speed up the process of handling numerous (sometimes thousands) of separate civil lawsuits pertaining to the same alleged tort (wrongdoing).
In determining whether consolidation to an MDL is appropriate, a panel considers whether civil actions pending in different districts involve one or more common question of fact. If it is decided that consolidation makes sense, the panel will then decide on the district in which to centralize and the judge to preside over the matter.
Although multidistrict litigations can be confused with class action suits, they have important differences. The cases that are consolidated into an MDL start and remain individual claims throughout the litigation.
Over the course of the next three months, eight top DePuy Orthopaedics executives will be required to testify in the DePuy ASR multidistrict litigation under the Honorable David A. Katz. The company leaders, which include the former and current company presidents, will be required to produce ASR-related documents, notes, outlines, presentation materials, testimonies and oral proposals prepared or given to them.
As lawsuits have continued to pile up against Johnson & Johnson’s DePuy Orthopaedics over their recalled ASR hip, the company has reached what is believed to be the first settlement for cases brought by recipients of the device. Reports name Anneliese Rundle, Martha Bender and Katherine Guy as the first claimants to reach a settlement with DePuy over their injuries. Their trial was scheduled for December and would have been the first case to be presented to a jury in the United States.
The next trial for DePuy ASR lawsuits is set for January of 2013.
A smoking gun email that was sent 12 months prior to the DePuy ASR recall proves DePuy executives discussed the failure rates well before any decision to recall the device. Considering the contents of the email, sent internally from a DePuy executive, there is a good reason why only one out of the two DePuy ASR hip components was ever sold in the United States.