Tuesday, September 10, 2013

DePuy ASR Hip Implant Settlement Amounts

The Legal Examiner

It has now been over three years since the Johnson & Johnson DePuy ASR metal on metal hip was recalled and there is still no settlement program for injured consumers. There are over eleven thousand lawsuits pending and more being filed every week.

Bloomberg News recently reported or speculated that a 3 billion dollar settlement was being discussed. So what would that mean to individuals who have been injured if that number is accurate? It would appear that a 3 billion dollar settlement might mean individual settlements of between $300,000 to $400,000 per case where there has been a hip revision that was reasonably succesful without major complications.

Any proposed settlement program that is set forth, and one will be an some point, will have to rank cases so like cases receive similiar amounts. Individuals who had more than one revision or who suffered infection during the revision will certainly receive more than the basic revision case. Those individuals who have a DePuy ASR hip and have not needed a revision are not likely to get settlements above low 5 figures in my opinion.  Perhaps 20% of the lawsuits filed involve cases without a revision. Some of these cases may be serious cases where the revision could not be performed for health reasons. It is likely that these cases may receive more than the basic case. However, most of these non revision cases will not be serious cases but are people who had to file a lawsuit to protect their rights against the statute of limitations. The statute of limitations is a time period that is different in different states but which requires a lawsuit to be filed or it might be too late and might be dismissed as untimely by the Court. These unrevised cases are unlikely in my opinion to be allocated more than low five fugures per case. That is why there would be funds in a 3 billion dollar settlement for eleven thousand people that could allocate over $300,000 to pay the average revision case.

There will also likely be some type of extraordinary injury fund to pay extra to people who have died or had a stroke during revision surgery or had an extended hospital stay from complications. Any proposed settlement program will likely provide a fund for payment later of these unrevised cases if they later need surgery to remove the ASR hip.

My opinions here are based upon the past Sulzer Hip Class Action Settlement and my 30 years experience as a trial lawyer. I have no inside information on whether the Bloomberg report is accurate or not.

I know those harmed by the ASR hip implant are frustrated by the delay in justice but it looks to me like there will need to be a few more jury trials before DePuy will come forward with a settlement program. Of course, any settlement program is not mandatory and this is not a class action lawsuit so each person retains his or her right to take DePuy to jury trial in an individual case if they do not wish to accept whatever is offered in the settlement program.

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