DePuy Orthopaedics, a subsidiary of Johnson & Johnson, has agreed to a $2.475 billion proposed global settlement program that could resolve thousands of claims related to injuries suffered as the result of their ASR hip implant device. The settlement has been approved by U.S. District Judge David A. Katz in the Northern District of Ohio, who is overseeing the consolidated litigation for cases filed in Federal court, along with the other state court judges where cases were filed. DePuy faces thousands of lawsuits in the U.S. related to its ASR XL Acetabular and ASR Hip Resurfacing Systems, which it recalled in August 2010 amid reports that unusually high rates of the devices failed after just five years. Navan Ward, Jr., a lawyer in our firm’s Mass Torts Section, was selected to serve on the Plaintiffs Steering Committee for the consolidated litigation for cases against DePuy Orthopaedics in the hip implant products liability litigation.
The agreement was announced Nov. 19, 2013 in the Toledo, Ohio, federal district courtroom of United States District Court Judge David A. Katz. Judge Katz has presided over the federal multidistrict litigation (MDL) involving some 8,000 of the ASR cases. However, the proposed settlement does not involve all ASR patients. The current settlement program applies only to patients who are U.S. citizens that have undergone revision surgery prior to August 31, 2013. Neither does the settlement program cover ASR patients who underwent a revision surgery within 180 days of their initial ASR hip replacement surgery, or who had a revision solely due to infection or trauma, which is narrowly defined by the settlement agreement. It should be noted that patients who do not qualify for the settlement retain all of their rights to pursue claims against Johnson & Johnson.
The settlement program’s terms are rather complicated – as evidenced by the 100-page agreement setting up the program – and the settlement amount offered by DePuy to settle any individual case will be based upon a host of factors. To start, any eligible ASR patient will be entitled to a “base” award, which will be:
The ultimate award may also be adjusted up or down. Downward adjustments are proposed for patients falling into the following categories. They include persons who:
Patients may be entitled to additional damages above the “base” award if medical records demonstrate:
Various other factors will also be considered in evaluating each case. In addition to awards, as described above, DePuy agreed to satisfy most health care insurance liens for ASR-related medical costs. Many have called this agreement “unprecedented,” as Plaintiffs have traditionally been left to negotiate lien amounts with insurers and to satisfy any medical liens out of their settlement awards. Therefore, the settlement program offers patients benefits above and beyond the typical damage award.
Even after the almost $2.5 billion settlement agreement, Johnson & Johnson will still face thousands of hip implant lawsuits from Plaintiffs who have yet to have their ASR hips revised. The settlement leaves an estimated 4,000 to 5,000 ASR cases remaining in federal and state courts. These patients continue to suffer injuries such as severe pain, limited mobility, and elevated metal ions in their blood. Nonetheless, Johnson & Johnson has not agreed to include these patients in the settlement program.
If you would like additional information concerning the ASR settlement, you can visit the official website at www.usarhipsettlement.com. You can also contact Navan Ward, a lawyer in our firm’s Mass Torts Section at 800-898-2034 or by email at Navan.Ward@beasleyallen.com. Navan has been heavily involved in all of the metal-on-metal hip litigations. He was appointed to the Plaintiffs’ Steering Committee for the DePuy MDL and has been actively involved in litigating these cases since they were recalled in 2010 .
Source: Law 360
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