Thursday, November 25, 2010

• “Class Action” Lawsuits and “Multidistrict Litigation”: What’s the difference to DePuy Replacement Hip Recipients? Part 2 of 2

by Rottenstein Law Group

As of now, a few dozen lawsuits have been filed against DePuy all over the United States, from California to New York. On September 3, 2010, a California plaintiff filed a motion before the US Judicial Panel on Multidistrict Litigation to merge all the DePuy hip recall lawsuits into one MDL case. She cites five separate lawsuits in five states, including one class action lawsuit (class actions can be included in MDL with individual cases). The MDL motion applies only to cases before federal courts not state courts. The plaintiffs are asking for New Jersey federal District Court Judge Susan D. Wigenton to preside over the MDL proceedings, but DePuy is objecting for two reasons. First, it wants the MDL to occur near its headquarters in Warsaw, Indiana. To this end, DePuy is requesting courts in either the Northern District of Indiana at South Bend or the Northern District of Ohio in Toledo to hear the case. Second, DePuy is objecting to Judge Wigenton’s appointment to the cases because she is already presiding over a separate hip implant lawsuit against Zimmer Holdings over its Durom Cup hip implant. DePuy argues that her presence could cause confusion and unintended prejudice to the parties. Some plaintiffs want the lawsuits closer to where they live, such as a large group in and around Chicago, or in California, where DePuy’s hip implant design facilities are located.

Because of the disagreement, the US Judicial Panel on Multidistrict Litigation will hear oral arguments as to where and to which judge the DePuy hip implant MDL lawsuits should be assigned. The hearing date is Thursday, November 18, 2010 at Duke Law School in Durham, North Carolina. Plaintiffs’ attorneys expect to meet the day before to confer over their clients’ experiences, pre-trial strategy, gathering evidence, and any problems they foresee while working toward a settlement with DePuy. One estimate suggests that hip implant recipients will file more than 4,000 lawsuits against DePuy, necessitating consolidation.

If a settlement is reached, and hip implant recipients are dissatisfied with it, they are free to return to their local courts and proceed to trial. Hopefully, any hip implant recipient doing so would benefit by accessing the discovery gained from DePuy in MDL, and everyone would save money in the resulting lawsuit.

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