COVID-19 has altered everyone’s schedule. Schools, colleges, and restaurants have closed. Even courts have shut down for non-urgent hearings and trials. In June, Judge Catherine Blake, overseeing the Smith & Nephew Birmingham hip litigation, issued an amended Case Management Order to extend discovery deadlines and bellwether trial dates for the multidistrict litigation.
Remember the Smith & Nephew Birmingham hip MDL is moving forward on two tracks: one set of cases involve the BHR components that were used in hip resurfacing procedures, and a second set of cases (“THA Track”) involve those individuals who received Birmingham hip components as part of a total hip arthroplasty (THA). Let’s breakdown the recent schedule changes for each track:
BHR (Resurfacing) Track:
Amended Case Management Order No. 16 has rescheduled the first BHR bellwether trial for May 25, 2021 and the second bellwether for July 26, 2021. This means the new CMO has pushed these trials out six months. It’s disappointing that we won’t get our first Smith & Nephew jury verdict by the end of this year, but totally understandable in these unprecedented times.
Discovery is the sharing of documents, materials, information, and evidence between the plaintiffs and the defendant prior to trial. The close of “general liability fact discovery” for BHR Track cases is now July 15, 2020, and case-specific fact discovery will be completed by October 20, 2020.
Expert discovery deadlines for both sides, which includes expert disclosures, expert reports, and depositions, now stretch from July 15, 2020 to October 30, 2020.
For the cases chosen to be considered for bellwether trials, case specific discovery will now run from November 30, 2020 through February 5, 2021.
Motions often follow discovery. These motions may involve one side’s challenge of the validity of expert testimony, or the admissibility of certain evidence, or the science behind certain claims. In the Smith & Nephew litigation, these motions will now be filed beginning November 30, 2020, and hearings on these motions will continue through June 4, 2021.
THA (Total Hip Arthroplasty) Track:
Discovery for the THA Track cases chosen as possible bellwether cases will end on December 1, 2020. From there, plaintiffs and defendant will select two cases to be considered for bellwether trials. Any additional discovery for these four cases will continue until March 12, 2021. Judge Blake has stated that she will issue a separate scheduling order for the THA Trial cases down the road.
Finally, the coronavirus is even changing the way the law is practiced. Many depositions are now being handled through secure video conferencing (remote depositions). While in-person depositions remain the gold standard, remote/video depositions are now being pressed into service to encourage social distancing. Judge Blake issued CMO No. 17 to set forth guidelines for handling remote depositions. These things can be a bit clunky, such as when you are handing over several exhibits for the deponent (the person being asked questions under oath). CMO No. 17 attempts to provide guidance on these issues for the Smith & Nephew Birmingham litigation, including authorizing the use of a deposition “concierge” to help with technical issues and even to hand over exhibits.
In general I think video depositions are great. Setting aside the health advantages in a pandemic, video depositions cut down on travel and litigation expense. I believe the legal profession should always do whatever it can to reduce the costs of litigation, as these costs inevitably reduce net awards for plaintiffs. So that’s a small bit of good news. I suspect when this pandemic is behind us, many of the changes created by the need for social distancing will remain because it simply works better.
Multidistrict litigation involves hundreds and often thousands of individual plaintiffs, from all across the country, who have been injured in similar ways by a defective product. Even without a pandemic it takes years to corral this information, to try bellwether cases and to negotiate fair settlements. The COVID-19 pandemic has caused delays in the Smith & Nephew Birmingham hip litigation and will likely cause further delays. You should always be patient when you have a case in any MDL; now you must be especially patient.
As always, you can call me to discuss your potential case: 919.546.8788. Good luck!