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

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).