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  California law does not require boaters to insure their boats. Despite California’s policy on boater’s insurance, it is wise to get coverage to minimize risks to your personal assets. Boating insurance is like car or home insurance; it covers

DePuy ASR Settlement – Round 2 Extension

DePuy ASR Statute of Limitations


Stuart Talley is the partner responsible for the DePuy ASR litigation. There is an upcoming deadline that may impact your ability to bring a case. The deadline is the statute of limitations. DePuy recalled the ASR hip in August 2010 and this August will be 5 years since the recall. Every state has a statute of limitations, or the time period in which you can file a lawsuit from the date you reasonably suspect you have a claim.

The big issue is, “When should you have reasonably suspected you have a claim?” There are many potential start dates for when the statute of limitations begins to run. The date could be when DePuy recalled the ASR hip approximately five years ago. Another date is when you find out you have the DePuy ASR hip. It may be the date you find out you have elevated cobalt and chromium. Or it may be the date your doctor states you require revision surgery. All these examples are potential start dates for when the statute of limitations starts to run.

If you have a DePuy ASR hip, and you have not undergone revision surgery, it’s important to get a case on file immediately. The sooner you get a case on file the better. If you have a case on file, and your hip is not revised, DePuy allows you to dismiss that case and toll the statute of limitations. Tolling the statute means it does not run (running of the period set forth by a statute of limitations is paused or delayed). So, if you have a case on file, you can dismiss it. And say, hypothetically, you need revision surgery one year from now. You can subsequently refile your case as if it was never dismissed and proceed with your case. If you do not have a case on file, you do not get the benefit of the tolling agreement.

If you have a DePuy ASR hip (unrevised or revised), and you do not have a case on file, feel free to give us a call. Our attorneys are happy to explain this in more detail, and provide an analysis of your state’s law regarding the statute of limitations. We will help protect your rights.

Lawsuit updates for metal on metal hips

Hip implants are touted as life-changing medical advancements designed to improve an individual’s quality of life. Unfortunately, in some cases patients suffer more pain and discomfort than expected from the devices. This is due to toxic poisoning from defective, metal on metal implants. It is commonly a result of Cobalt Chromium Toxicity. Thousands of hip replacement patients are discovering their hip implants are releasing cobalt and chromium particles into their bodies, whether or not they have symptoms.

The primary hips associated with this complication include Stryker Accolade, Stryker Rejuvenate, Stryker ABG IIDePuy Pinnacle, DePuy ASR,  and Biomet M2A Magnum.

Settlements continue for the following metal on metal hips:

Stryker

Stryker Orthopaedics announced a Settlement Agreement on November 3, 2014. The Stryker Hip Settlement Program may provide compensation to eligible patients who underwent revision surgery, replacing their ABG II Modular Neck Hip Stems and/or Rejuvenate Modular Neck, before November 3, 2014. Additionally, patients who cannot undergo revision surgery are possibly entitled to compensation; if the procedure was contraindicated for the patient prior to November 3, 2014.

The Stryker Modular Hip Settlement registration requires patients implanted with a Rejuvenate Modular hip or an ABG II Modular hip to submit basic information, pursuant to a court order. The court-ordered process applies to individuals regardless of whether they filed a claim or lawsuit, whether or not they underwent a qualified revision surgery (implant was removed before November 3, 2014), and whether or not they have legal representation. The registration process ended as of December 19, 2014.

You are not required to join the Settlement Program if you registered. However, if you intend on enrolling and participating in the Settlement Program, registering with the Claims Processor is not the same as enrolling in the Settlement Program. You will need to complete and submit an enrollment claim form as part of the separate Enrollment Process if you want to enroll in the Settlement Program. The Enrollment Process opens on January 16, 2015 and ends on March 2, 2015.

http://strykermodularhipsettlement.com/

DePuy

DePuy Orthopedics announced on November 19, 2013 they were initiating a voluntary settlement program in an effort to resolve approximately 8,000 lawsuits filed against them from the recall of their DePuy ASR prosthetic hip. Under the program, individuals who underwent revision surgery of their DePuy ASR hip prior to August 31, 2013 will receive a “base award” of $250,000 to settle their claims against DePuy. The base offer can adjust downward for a variety of health factors including the plaintiff’s age,  the plaintiff’s smoking history, the plaintiff’s weight, and the length of time the implant was present prior to removal.

Under the program, there is a separate fund available to provide adjustments upward for individuals who underwent two revision surgeries or complications following their revision surgery.  The extent of upward adjustments is extremely complicated and is based on a variety of individual factors.

The settlement does not impact or affect your rights if you have not had your ASR hip revised.  The unrevised cases will continue to go forward. Eligible individuals had until Sept. 30, 2014 to potentially claim $250,000 or more from the DePuy ASR Hip Settlement Program.

https://www.usasrhipsettlement.com/

Wright Profemur and Conserve Plus

On September 15, 2014, approximately 800 claims regarding the Conserve hips were filed against Wright Medical Technology Inc. in the ongoing multidistrict litigation (MDL) in U.S. District Court, Northern District of Georgia (In re: Wright Medical Technology, Inc., Conserve Hip Implant Products Liability Litigation, MDL No. 2329). As trial proceeds, filings continue to grow on behalf of individuals who suffered painful injuries associated with the Conserve hips as well as the Profemur hip replacements. The injuries sustained from the Conserve metal-on-metal hips include early device failure, femoral neck fractures, and metallosis.

The Wright Profemur and Conserve Plus hip lawsuits allege the hips caused serious complications as a result of elevated levels of metal ions, like cobalt and chromium, released from the hips. Currently, the court has selected a case for the litigation’s first bellwether trial scheduled for March 2015.

Recent studies demonstrate patients implanted with the Wright Profemur and Conserve Plus hip replacement systems often experience early failure and femoral neck fractures. Specifically, both these devices are “metal on metal” hips and recently the subject of much controversy. Under certain conditions, metal on metal hips can release metal particles into the hip joint and surrounding tissue. When this occurs, patients may experience significant pain in the hip joint resulting from the body’s reaction to the metal particles released into the hip. This condition is known as “metallosis” and often results in permanent damage to the hip joint.

http://www.gand.uscourts.gov/12md2329

Biomet

Approximately 2,000 cases are currently pending in the Biomet M2A Magnum Multidistrict Litgation (MDL) underway in the U.S. District Court for the Northern District of Indiana. On December 9th, court documents showed the cases were filed on behalf on claimants who allege complications such as metallosis, pseudotumors, and other adverse effects secondary to the metal on metal design of the implant.

The court granted approval for a proposed settlement of the Biomet M2A Magnum lawsuits at the start of the year. The settlement would resolve hundreds of cases if finalized. The settlement terms were announced on February 3, 2014. Under the settlement, if plaintiffs underwent revision surgery (removing the hip) after the Biomet was implanted for more than 180 days from the index (initial) surgery, they are potentially entitled to a base award of $200,000. Court documents indicate the Biomet settlement would need to be accepted by 90% of eligible plaintiffs in order to be accepted.

http://www.innd.uscourts.gov/judges/RLM/MDL2391

Our attorneys have extensive experience litigating defective hip cases. We can answer any questions regarding these settlements and offer free case consultations. We will focus on your case, so you can focus on yourself. 

How Settlements Work in Defective Hip Litigation


Hi, this is Stuart Talley of Kershaw|Talley. I am the partner here responsible for the defective hip litigation. The reason I am doing this video today is to provide some information about the settlement of hip cases. Many people are calling us asking how hip cases will typically settle. Although it is difficult to provide specifics in any given case, there are some general guidelines I think most people can be aware of that apply in cases like this.

Settlements in hip cases are unique. Typically, there are thousands of cases pending. In the DePuy ASR litigation, there are approximately 14,000 cases. In the Stryker Rejuvenate litigation, there are about 6,000 cases pending. So, when you settle cases like this on a global basis, it is a lot different than settling an individual lawsuit. In these cases, the defendant and plaintiffs will have settlement discussions and try to agree on what the average case should settle for. Once you have that number, you can extrapolate a settlement fund; $2.4 billion was put into a settlement fund in the DePuy ASR litigation. Then, you have to figure out an easy, quick, and verifiable way to apportion the settlement proceeds to people who have a case.

Generally, there is a “formula”, grid, or some process created, where people with severe damages end up with more money than people with limited damages. The formula is also used regarding people with problematic cases that may be difficult to win because of prior health conditions, or other factors, versus cases where someone doesn’t have those issues. So, you have a formula or grid, and you might start off with a certain amount of money that a plaintiff receives if they had a revision surgery. Then you would take a deduction of a certain percentage if they were a smoker, or a deduction if they have weight issues, or there might be a deduction if they’re older patients. There are different deductions that may be rational based on what the defendants believe make a good case or a bad case, and others may not be rational. Typically, there is some kind of formula that’s created to either bring somebody down from the base award, or up from the base award.

Modifications that increase base award are usually for extraordinary injuries. For instance, say you had your hip replaced and 3 months later you are up and running, and have no residual, permanent injuries; you would get the base award. Whereas, you might get more than the base award if you ended up with dislocations after your revision, or you had an infection and had to have 2 more surgeries, or you end up with nerve damage and have a limp or drop foot for the rest of your life.

The most important thing to understand is that you do not have to take the settlements in these cases; these settlements are not done deals. The case is an individual for every person who has a case against a hip manufacturer. This means only the plaintiff can settle the case. So, if there is a settlement fund, a way of apportioning money, at some point your lawyer is going to contact you and say, “If you take this settlement, here is how much you will get.” At that point, you are free to either take or reject the settlement. But you are not required to accept a settlement that’s offered to you. If you reject the settlement, then your lawyer will continue litigating your case, and hopefully get a trial date in your case, or do something to move your case forward. So, defendants will hopefully pay more than what you might be awarded under a global settlement.

If you have a recalled or defective hip, a metal on metal hip, give us a call toll free at (888) 997-5170 whether or not your case is settled. We can provide you with information about how settlements work. We can also tell you at the end of the case whether we believe a settlement is adequate or not for you.

J&J May Pay $250 Million to Settle 1,000 More Hip Claims

(Bloomberg)- Johnson & Johnson (JNJ) may pay more than $250 million to resolve suits over its ASR hip implants that were excluded from a $2.5 billion settlement of similar claims last year over the device’s failure, two people familiar with the accord said.

J&J, the world’s largest seller of health-care products, is weighing whether to settle more than 1,000 lawsuits over removals of the recalled hip implants that occurred after August 2013, said the people, who requested anonymity because they weren’t authorized to speak publicly about the accord. The hips were made by J&J’s DePuy unit.

The company is considering extending the same settlement terms that covered patients who had their ASR implants removed earlier than last summer, the people said. Under that accord, J&J agreed to pay an average of about $250,000 per surgery and cover related medical costs to resolve about 8,000 cases.

“This is a sign that J&J is trying to get a solid handle on its whole ASR problem,” said Carl Tobias, who teaches product-liability law at the University of Richmond in Virginia. “They are not done paying yet, but they are moving in the right direction.”

If J&J resolves the additional suits, it will have settled about 75 percent of its total U.S. caseload. The total cost of the settlements over ASR, which stands for articular surface replacements, may exceed $4 billion by the time J&J resolves the remaining implant cases, Tobias said. The accord doesn’t cover hip litigation outside the U.S.

For the article, please visit: J&J May Pay $250 Million to Settle 1,000 More Hip Claims – Bloomberg (Jef Feeley)

Federal Court Hearing Unveils Anticipated Global Settlement in DePuy ASR Cases

The Civil Justice Law Firm of Kershaw| Tally encourages patients to know their legal rights as federal court hearing unveils anticipated global settlement in DePuy ASR cases.

Stuart Talley was inside the Ohio federal courtroom for the latest settlement news announcement. Johnson & Johnson attempts to resolve approximately 12,000 cases filed against the manufacturer arising from the recall of its DePuy ASR hips.

This is the most significant development since the DePuy ASR hip cases began flooding courts across the country three years ago.

According to Bloomberg, Judge David Katz in the U.S. District Court, Northern District of Ohio (In re: DePuy Orthopaedics, Inc. ASR Hip Implant Products Liability Litigation – MDL 2197), presided over the official and long-awaited announcement of a confidential settlement agreement.

BLOOMBERG

J&J Said to Weigh $3 Billion Settlement of Its Hip Implant Cases

By Jef Feeley and David Voreacos – Aug 21, 2013

Johnson & Johnson (JNJ), the world’s biggest seller of health-care products, has discussed paying more than $3 billion to settle lawsuits over its recalled hip implants, according to five people familiar with the matter.

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, according to the people. Such a settlement would exceed $3 billion if most plaintiffs accept the terms, an amount 50 percent larger than that proposed in previous discussions.

A $3 billion settlement would dwarf a 2001 accord Sulzer (SUN) AG reached with patients who claimed that company’s hip and knee implants were defective. Sulzer, a Winterthur, Switzerland-based pump maker, agreed to pay $1 billion to resolve those suits, then the largest settlement involving hip implants.

Any accord would be affected by the outcome of seven product-liability trials between September and January, according to the people, who aren’t authorized to make the negotiations public.

“It’s going to be a fascinating case to watch settle because of the level of complexity of the injuries and the amount of money that will be involved,” said Bruce Cranner, a medical device defense lawyer not involved in the case. “You don’t see a lot of mass-tort implant cases settle for a substantial amount of money.”

Replacement Surgeries

The company is pushing to resolve U.S. cases by early next year, according to the people. 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 is climbing, along with suits by patients blaming the chromium and cobalt devices for pain, metal debris and replacement surgeries.

J&J, based in New Brunswick, New Jersey, has spent about $993 million on medical costs and informing patients and surgeons about the ASR recall, Lorie Gawreluk, a spokeswoman for DePuy, said in an e-mail. J&J set aside an undisclosed amount for litigation, which it increased before June 30, she said.

“The company also continues to support ASR patients with a reimbursement program to address recall-related testing and treatment costs,” she said. “Reports about a possible resolution of the litigation are premature and speculative, including any estimates of resolution amounts.”

Steven Skikos, a plaintiffs’ lawyer leading efforts to prepare lawsuits against DePuy, said his group is preparing for jury trials, which include the first case in federal court.

‘Dangerous Guess’

“With the trials rapidly approaching, and our continuing efforts to obtain more information and data about the patients, it’s easy to speculate about settlement,” Skikos said in an e-mail. “However, any comment relating to settlement that does not come from the plaintiff’s leadership, the court, or from the company itself remains premature, uninformed and a dangerous guess.”

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 March awarded damages to a retired Montana prison guard. The panel also ruled the device was defectively designed, that DePuy properly warned of the risks, and that the company didn’t owe punitive damages. DePuy is appealing.

Chicago jury ruled six weeks later for DePuy in rejecting a defective design claim by an Illinois nurse.

Other Trials

Seven other trials of lawsuits by plaintiffs blaming the ASR hips for injuries will help lawyers for both sides frame questions over liability and damages. The first is scheduled to begin Sept. 9 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.

Katz is overseeing about 8,000 federal cases consolidated before him for the pre-trial collection of evidence. About 2,000 cases are pending in the California Judicial Council Coordinated Proceeding before Judge Richard Kramer in San Francisco.

Trials also are scheduled in state courts in San Francisco in October; in Hackensack, New Jersey, in October and January; in West Palm BeachFlorida, in November; in Chicago in December; and in Los Angeles in January.

“DePuy believes the evidence to be presented at trial will show the company acted appropriately and responsibly,” Gawreluk said. “The ASR hip system was properly designed, physicians were properly informed of the product’s risks, and DePuy’s actions concerning the product were appropriate.”

Broad Outline

Lawyers for hip recipients are still reviewing more than 50 million pages of J&J documents and conducting pre-trial interviews of company officials and experts to prepare for those cases, Skikos said.

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 people said.

In 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 overall accord would compensate patients based on such factors as age, extent of injuries and whether they had one or more surgeries to replace defective implants, according to the people. Negotiators would likely rank those and other factors on a matrix or grid, the people said.

“J&J’s strategy will be to find a way to negotiate a grid to settle each of the claims based on five or six variables that could be plugged in and changed up or down to determine the value of any claim,” said Cranner, a lawyer with the New Orleans-based law firm of Frilot LLC. He is past chairman of the Medical Liability and Health Care Law Committee of DRI, an organization of lawyers who represent corporations and insurers.

Obstacles Remain

Several obstacles to a final settlement still must be overcome, the people said. 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 for claims paid. A third is the amount of compensation for extreme medical cases, which include dual hip surgeries or cases where infection prompted long hospital stays, the people added.

“There are a significant subset of clients who got very badly hurt by the device, and their injuries are much more than a simple revision,” saidMatthew Davis, a lawyer at Walkup Melodia Kelly & Schoenberger in San Francisco whose firm represents 270 ASR clients.

“If those cases went to trial and there was a finding of liability, a jury would award them general damages in the seven figures,” said Davis, who isn’t involved in the negotiations.

Alloy Used

The J&J hips were made from a cobalt-and-chromium alloy used in two related models — the ASR XL Acetabular System, and the ASR Hip Resurfacing System. In announcing its recall, J&J cited unpublished data from the U.K. showing that within five years, 13 percent of ASR XL hips failed and needed revisions, and 12 percent of the ASR Hip Resurfacing System failed.

At the first trial in Los Angeles, lawyers for plaintiff Loren Kransky argued DePuy failed to test the device adequately before selling it in the U.S. in 2005, buried surgeon complaints of mounting failures, and studied a redesign of the ASR before scrapping that effort in 2008.

Lawyers for patients claim that debris from the metal ball sliding against the metal cup causes tissue death around the joint and may increase the amount of metal ions in the bloodstream to harmful levels.

J&J set up a help line for patients that is “available in dozens of countries and has served tens of thousands of callers,” Gawreluk said. J&J runs a worldwide reimbursement program resulting in “thousands of payments to patients for testing and treatment of other out-of-pocket expenses.”

The McCracken DePuy case is McCracken v. DePuy, 11-dp-20485, U.S. District Court, Northern District of Ohio (Toledo). The consolidated federal case is In re DePuy Orthopedics Inc., ASR Hip Implant Products Liability Litigation, 10-MD-2197, U.S. District Court, Northern District of Ohio (Toledo).

 

Defective & Dangerous Products

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CLIENT TESTIMONIALS

“Bill and Stu worked expeditiously to get my hip claim resolved.
I couldn’t believe how personable they were and easy to contact.”

-S. Thomas

“Stuart helped me with a case involving a defective hip replacement. He was incredibly responsive to my calls and concerns and really kept me updated on what was going on in the litigation. Even though his office was not in my hometown, he actually flew out to meet with me. He was incredibly knowledgeable about the case and really helped me through a very difficult time.”

-Personal Injury Client, as seen on AVVO

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