Wednesday, November 30, 2011

More litigation questions

From one of our readers:

"I  want to know why we need to pay 40 percent of the settlement to a lawyer. If depuy offers a settlement, why do we need a lawyer? Is there another option? "

Well, as you all know, I am not a lawyer but I will give you my thoughts on this.  In short, I don't know the answer to your question because I have not really concentrated on the litigation but here are my thoughts .

1.  Someone has to underwrite the expensive discovery and expert witness process that is required to even to get to settlement.  There can be no settlement if someone doesn't advocate a case right?  Someone deserves to be paid for that process.  Further, most plaintiff lawyers in these situations front the money to do that.  That is, there is no cost incurred unless they are successfully in getting a settlement for the patient.  It is fair in that case that someone should be compensated right?

2.  However unfortunate it might be, I find most of the litigation stuff focused on "What did Depuy know and when did they know it?"  Now, granted, this is an important question but my guess is that even in the best case whereby they prove that
  •  Depuy knew the problem. 
  • Depuy ignored the problem. 
  • Depuy  knowingly deceived the public blah blah, the most I have ever seen awarded for this type of hip case is a couple hundred thousand bucks if you got a revision.

3.  I think the more important issue is to work on the issue that involves potential long term systemic issues like cancer because that is going to be a costly undertaking for a patient if it happens and no patient should be left without a chair when the music stops.  So, in order to pursue this, I would pick a law firm who is focused on this in their case.  I have found such a firm in NY but want to have the tests that I think I need to address on the systemic (long term ) effects of the case before I take my case in if I choose to do that and am convinced that the systemic issues will be addressed.

4.  I know there has been at least one settlement whereby the hip company reached out to the patients directly for a settlement (presumably those who were unrepresented at the time of the offer).  My hunch is that without some knowledge of what your case is worth vs what you would be offered, it might be hard to settle this without an attorney.

5.  The other key consideration to be aware of is that you must file something with the court somehow in order to avoid the statue of limitations.  I am unsure as to how you do that without an attorney albeit, I am sure there is a way.

I suppose we can provide a private site through this blog with patients who can express interest in "going direct" to Depuy but I would have to look into this for you.  I personally can't be involved with anything that  discloses the names of any patients for any reason whatsoever.  I can check in on this and put a sign up on a password protected site which is confidential and if enough patients are interested in this, I can look into it and e-mail you directly but I have to think about this first.

My first focus is the systemic issues and testing.  The legal stuff is secondary to me at this point until I get the testing which I feel I need as baselines to deal with the potential systemic issues.  My second focus will be to pursue having  Depuy  allocate some funding to looking at the long term systemic effects of this issue.  This should be part of any litigation settlement and if the lawyers are not including this a settlement, shame on them.  It would be at the top of my settlement list since the studies on the long term systemic effects are few and far between but there are some really good nuggets to follow up on.

Now for Depuy's perspective.  I would think Depuy or any manufacturer involved in a case like this would prefer to settle directly.    I have noted that the suits filed to date are about 3500 or so but many law firms have not filed the suits they have.  There is a strategy involved as to what suit gets filed where and for what venue (MDL, one suit at a time...etc.)  If Depuy had to settle one case at a time, I think it would be too costly.  If they had some kind of negotiated settlement with a large group, likely a different story. 

Depuy has been exceptional to me (through Broadspire) in paying everything I have needed to have reimbursed.  I am not sure I would approach them as an adversary given the fact that they have answered most of my questions and have paid every bill I have submitted to them.  My concern is not being caught without a chair when the music stops re the long term systemic issues and funding studies on the long term systemic effects.  Pain and suffering is what most patients concentrate on.  Hey, for some patients, this revision process has been hell.  Some more than others and those patients deserve to be compensated accordingly so I am not pooh pooing a pain and suffering claim.  I am merely putting that claim into perspective. 

While I didn't answer your question, perhaps some of these thoughts might cause you to think about some additional items you may not have considered previously.

One other thing, when I began down this path, I was hell bent on finding a lawyer immediately.  I have not hired anyone yet because my objectives can't be articulated  without some additional testing to satisfy my sense that the systemic issues will be dealt with adequately.

Every state  seems to have different prices and every law firm within that state has different ways of viewing the underwritng of these cases so the idea that 40% of something goes to you is somewhat a misnomer. 

let us know what you think.


  1. Why are so many patients being told to hurry up and sign up with one of the many law firms who have no intention of actually doing the work to see that you get a fair settlement regardless of the MD Settlement Matrix that is meant to limit the amount of your individual settlement?

    1. I think the sense of urgency is the expiration of the statue of limitations in certain states. I have published a list of which states are up soon.

      I have also published a number of posts previously on options in hiring a lawyer if you choose to do so. They range from filing with a state and going to litigation or using the national MDL process. There are pluses and minuses to both. If you look up the following in the search bar, the posts may help:

      -MDL (mutlidistrict litigation
      -Statute of limiations