Friday, December 2, 2011

Status of Rulings in the multi district litigation (MDL) for the Depuy hip

Bernstein Liebhard LLP reports on three new orders issued in the DePuy ASR Hip MDL following a November 22, 2011 status conference

Bernstein Liebhard LLP reports that the Honorable David A. Katz, who is overseeing the federal DePuy ASR hip replacement lawsuits, In re: DePuy Orthopaedics, Inc. ASR Hip Implant Products Liability Litigation ("MDL No. 2197"), in the U.S. District Court for the Northern District of Ohio, issued three new orders following a November 22, 2011 status conference.* The status conference was attended by lead counsel, executive committee members and other lawyers involved in the litigation. These latest rulings target discovery matters and lawyers' fees.
Specifically, Judge Katz issued an Amended Stipulated Protective Order of Confidentiality to address a potential disclosure problem regarding expert witnesses. Often, in complex litigations, experts are asked to opine on highly confidential information with respect to a corporate defendant. This order provides detailed disclosure instructions so that corporate documents are protected without infringing on plaintiffs' right to consult with experts, who may be associated with DePuy's competitors.

 Judge Katz also granted an extension for the filing of Plaintiff Fact Sheets, recognizing that the deadline for submitting the initial group of Fact Sheets conflicted with the holidays. In a mass tort case, such as the DePuy ASR MDL, Plaintiff Fact Sheets are discovery tools used by defendants to obtain basic information about the plaintiff as well as specific information about the nature of plaintiff's injuries. The extension will make certain that plaintiffs' counsel have adequate time to gather necessary information from clients.

Finally, Judge Katz issued an order regarding the sharing of attorneys' fees and expenses between attorneys. Although there are thousands of individual lawsuits in the MDL, in order to promote judicial efficiency, only a small group of attorneys have been charged with the day-to-day management of the DePuy ASR litigation. To ensure that the costs and expenses are shared equally by all of the attorneys and not borne solely by those leading the litigation, Judge Katz established a common benefit fund. Common benefit funds are customary in multidistrict litigations; these funds act as a mechanism to collectively handle costs associated with court filings, depositions, administrative matters, expert witnesses and investigative services that may be incurred during the litigation process. The fund only affects the distribution of fees between attorneys; there is no additional cost to clients. In other words, the fund does not affect an individual's amount of recovery, if any. In addition to issuing these rulings, Judge Katz scheduled the next status conference for January 23, 2012.

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