WARSAW, Ind. — (Mealey’s) The DePuy Orthopaedics Inc. subsidiary of Johnson & Johnson will pay $2.5 billion to settle about 8,000 claims involving its recalled ASR hip prosthesis, according to a joint announcement Nov. 19 by the company and plaintiff attorneys representing litigants.
(DePuy ASR U.S. settlement overview available. Document #28-131121-024X.)
According to a settlement overview posted on the settlement website, https://www.usasrhipsettlement.com, the agreement will cover U.S. patients who had hip revision surgery as of Aug. 31, 2013. The parties said some lawsuits will remain.
According to Johnson & Johnson, there would be about 4,000 cases left in the federal multidistrict litigation in the U.S. District Court for the Northern District of Ohio.
Base Award, Supplemental Award
Part A of the settlement provides a base award of $250,000 subject to potential deductions for length of time the implant was in a patient, whether the patient smoked, whether the patient had prior hip surgery, whether the patient had a body mass index greater than 35 (clinical obesity), the patient’s age and, in the event of a patient’s death, whether the death was due to an unrelated cause.
Part B of the settlement would pay a supplemental award to compensate for extraordinary injuries, such as bilateral hip surgery, multiple revision surgery and complications such as stroke, pulmonary embolism, deep-vein thrombosis, hip dislocation and foot drop (abnormal gait). The announcement said supplemental awards will be determined by unidentified professionals.
Patients who enter the settlement must release all other claims and agree to be bound by claims administrator decisions, the announcement said. Patients can appeal award decisions within the program but not outside of it.
Patients who wish to participate must register their claim by Jan. 6 and must file a claim by April 1. Claimants need not be represented by an attorney.
The announcement did not state how the settlement will resolve reimbursement claims by third-party payers, such as Medicare, Medicaid and health insurance companies.
The parties said patients who undergo revision surgery after Aug. 31, 2013, can participate in DePuy’s Broadspring program to support patients.
The settlement was to be presented to the Ohio federal judge overseeing the DePuy ASR hip MDL, as well as state court judges overseeing ASR litigation in New Jersey, Illinois, California and Maryland. According to the MDL docket, the court conducted a hearing yesterday but issued no order or minute entry as a result.
The DePuy ASR hip is a metal-on-metal design prosthesis, meaning the “ball joint” part was made of metal. DePuy recalled the ASR hip in 2010 due to a higher-than-expected rate of failure and revision surgeries.
DePuy also recalled another metal-on-metal hip, the Pinnacle. It is not covered by the settlement.
According to Johnson & Johnson’s latest Form 10-Q report, as of Sept. 29, there were about 12,140 ASR cases pending and about 5,160 Pinnacle cases pending. Federal ASR cases are centralized in the MDL in the Northern District of Ohio, where the first bellwether trial is set to start before Dec. 24.
Federal Pinnacle cases are pending in an MDL in the Northern District of Texas. That court has scheduled no bellwether trials.
$8.3M State Court Verdict
The first ASR trial in California’s consolidated ASR docket took place in March and resulted in an $8.3 million verdict. A second trial in April resulted in a defense verdict.
ASR cases in New Jersey are centralized in the Bergen County Superior Court. Its first bellwether trial is set for Jan. 13.
Litigation involving other manufacturers’ metal-on-metal hips is under way.
In the federal MDL, plaintiffs are represented by Ellen Relkin of Weitz & Luxenberg in New York and Steven J. Skikos of Skikos Crawford Skikos & Joseph in San Francisco. Defense counsel is Robert C. Tucker of Tucker, Ellis & West in Cleveland.
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