Have You Been Injured? We're Ready to Fight for You.

“Want It or Not” DePuy Settlement Raises Concern of Legal Counsel for Thousands

Published on Dec 20, 2013 at 8:45 am in Product Liability.

A settlement of nearly 8,000 lawsuits filed throughout the United States against DePuy Orthopaedics Inc. for its recalled hip implants has stirred debate and concern amongst counsel for thousands of patients who are excluded from the potential settlement. The settlement has left them questioning if their plaintiff-clients will be compensated.

Long embroiled in federal multidistrict litigation in the U.S. District Court, DePuy, a unit of Johnson & Johnson, announced the settlement at a November 19 hearing before Toledo’s Senior Judge David Katz. DePuy agreed to establish a $2.475 billion fund to compensate patients who underwent revision surgeries or surgeries to remove the ASR XL or ASR resurfacing devices. Plaintiffs contend those devices caused pain, clicking and grinding of the hips, and high metal content in blood tests, among other claims.

Plaintiffs in about 4,000 cases, however, won’t be eligible to participate, including those who had surgery after August 31, 2013, or those who have not yet had removal surgery. Settlement also excludes 5,000 plaintiffs who have sued over DePuy’s Pinnacle hip device, which was not recalled. The court is preparing bellwether cases in that docket for trial next year.

The majority of the clients of Felicia Stern, a partner at Bernstein Liebhard in New York, will be eligible to participate in the potential settlement. However, she raised concern for others who are completely excluded. One of her clients, for instance, had surgery in August to replace an ASR device in one hip, for which she would be compensated, but the other hip is scheduled for surgery this month, long past the settlement deadline. Another of Stern’s clients experienced so much damage from the implant that he was physically unable to undergo the revision surgery and is now in a wheelchair.

Legal counsel has raised a myriad of issues concerning the vague and questionable terms of DePuy’s potential settlement to those plaintiffs who qualify to partake in it. Under the terms of the settlement, participants could receive a $250,000 base payment covering costs of surgery, as well as pain and suffering. However, payouts could be reduced based upon factors such as weight or age, or increased for extraordinary injuries, such as patients who suffered heart attacks or strokes during surgery. A fund of $475 million has been set aside for such extra costs.

Counsel are concerned not only with those variables, but with other areas that seem murky. W. Mark Lanier, founder of The Lanier Law Firm in Houston, expressed concern with a settlement proposal that infers “this is what you’re going to get … do you want it or not? Here’s the process … find out later what you’re going to get.”

Lanier, who also serves as co-lead counsel in over 5,000 lawsuits filed over DePuy’s Pinnacle hip device (presently before U.S. District Court Judge Ed Kinkeade in Dallas), said he “would not” recommend a similar settlement in the Pinnacle cases. As to his 500 ASR plaintiffs, he opined that at least 90 percent of them would not take part in the settlement, although he declined to speculate whether they would officially opt out.

Interestingly, DePuy has the right to walk away from the potential settlement by June 1, 2014, should less than 94% of the eligible patients make claims (due on April 1, 2014).

Meet Your Team

Tad Thomas - Trial Lawyer

Tad Thomas

Managing Partner

Tad Thomas has dedicated his practice to representing plaintiffs in various types of civil litigation, including personal injury, business litigation, class actions, and multi-district litigation.

After graduating with his law degree in 2000 from Salmon P. Chase College of Law at Northern Kentucky University, Mr. Thomas immediately opened his own private practice and began representing injury victims.

In 2011, Thomas Law Offices was established in Louisville, Kentucky. Over the past decade, Mr. Thomas has expanded his firm and now has offices in three additional locations: Cincinnati, Ohio, Columbia, Missouri, and Chicago, Illinois. He is also a frequent lecturer on topics like trial skills and ethics and technology.

Free Case Evaluation

At Thomas Law Offices, our personal injury attorneys recognize that our potential clients are likely going through some of the most difficult times of their lives. We don't want you to have to worry about paying out-of-pocket for legal advice when you're just starting to learn your legal rights and options. That's why we provide free case evaluations. We'll offer our expert advice about your potential case and walk you through how we can help you.

Call us or fill out the form below to tell us about your potential case and a personal injury lawyer will get back to you as quickly as possible.

Legal & Firm News

What You Need to Know About Business Litigation and Contingency Fees

If your business has ever been involved in a legal matter, you may be surprised to hear the two phrases together: business litigation and contingency fees. Traditionally, it has been more common to associate a contingency fee model with personal injury law involving individual parties rather than businesses. But this is no longer always the […]

Read More

Signs of PTSD in Military Service Members

It’s estimated that up to one-third of military service members suffer from PTSD. PTSD, post-traumatic stress disorder, is a mental health condition that can develop following a traumatic event. This usually means an event involving actual or threatened death, serious injury, or abuse. People who have seen combat, witnessed death, or experienced a life-threatening situation […]

Read More

AAA Conducts Study Examining Travel Before and During COVID-19

In 2021, new research from the AAA Foundation for Traffic Safety’s New American Driving Survey revealed shifts in driving, traveling, and commuting patterns in the United States. The statistics gathered between July 2019 and December 2020 cannot be analyzed without consideration of COVID-19’s unignorable impact on the numbers—numbers showing marked differences from previous years’ findings.

Read More