Articles Tagged with Settlement

I got a desperate phone call the other day. The call came from a man several states away. Let’s call him “Bill.” Bill had hip replacement surgery in 2007. The Depuy ASR artificial hip was implanted. He began to suffer pain eighteen months later, in early 2009, and blood tests showed his cobalt and chromium metal levels were rising at an alarming rate. He was suffering from metallosis. In 2011 Bill underwent Revision Surgery to remove the Depuy ASR hip. A year later he hired an attorney and filed his product liability lawsuit against Depuy Orthopaedics and Johnson & Johnson (the parent company of Depuy) in federal court in Bill’s home state. From there, the case was transferred to the Depuy ASR MDL in the Northern District of Ohio, before Judge David Katz. Judge Katz was the federal judge assigned to handle or manage the pretrial issues associated with the thousands of Depuy ASR cases that were transferred to his court after being filed across the country.

In November 2013, the first Settlement was reached between the Plaintiffs’ Committee and the Defense Team for Depuy and J&J. I have written about this Settlement and its terms here. So six years after the Original Surgery, and four years after the first onset of pain, and two years after Revision Surgery, Bill finally had the opportunity to accept the settlement offer or reject the offer and pursue a jury trial on his specific case. After much deliberation, Bill rejected the settlement offer.

Waiting for a Trial DateThree years have now passed. Bill’s case is not on a trial calendar. In fact, as far as I am aware no case has yet been tried of any person who rejected the settlement offers. To make matters worse, this summer Judge Katz, in charge of the MDL, passed away. A new judge had to be appointed to take his place overseeing the MDL.

Bill is at his wit’s end. He told me he merely wants his day in court. He is now nine years removed from the Original Surgery, seven years removed from the onset of symptoms, five years from Revision Surgery, and over four years from filing suit. And still no trial date in sight.

Bill is not alone. Hundreds of people in the MDL rejected the settlement. And those people are waiting too.

So how long does it take to resolve your artificial hip case?

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My clients who have been injured by a failed medical device like an artificial hip or knee or a problem drug like Viagra suffer in many ways. There is the physical, emotional and psychological suffering. But there is another form of suffering that is often as traumatic: financial suffering. A failed medical device may cause a client to lose his or her job, and the lost income and extra medical expenses can be devastating. The good news is, often these clients receive a large sum of money from a settlement or jury verdict when a medical device or drug injures them.

Clients occasionally ask my advice on how best to handle the new money that has come into their lives. Frankly, this is a happy conversation. But it’s also extremely important to get the answer right. The worst thing clients can do is spend down the money quickly and have nothing left a few years down the road when they still need money.

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Genentech SettlementYou see ads for them all the time. Supplements, creams and pills that will help you lose weight, clear up your skin, improve your sex life or maybe do all of these things at the same time. Whether they’re in late night cable TV infomercials or spam email, you might think this kind of medical scam is perpetrated by small time operators making a fast buck. But scams can also be done by multi-billion dollar pharmaceutical companies (but in much more sophisticated ways), sometimes with potentially deadly results.

California based Genentech and its marketing partner OSI Pharmaceuticals will pay $67 million to settle claims that they misled doctors into prescribing a drug to lung cancer patients that the defendants knew would not work. Due to this highly corporate hucksterism some of these patients may have precious time robbed from them, dying earlier than they would have if they had taken more effective drugs. These allegations are in the settled lawsuit filed by a former Genentech employee. Federal prosecutors joined the lawsuit, reports the Los Angeles Times.

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Depuy ASR Settlement Deadlines

Many people still have the Depuy ASR hip components implanted in their bodies. I get calls from them. Some have elevated metal levels in their blood; others are telling me about pain in the hip area, popping sounds, and other problems. They are preparing to schedule revision surgery, and they want to know if they may qualify for compensation based on the settlements that have been reached with Depuy, Inc. and Johnson & Johnson, the parent company.

These are good questions. I want to make sure you are aware of a nine-year window for undergoing revision surgery.

Two Settlement Agreements So Far

As I have explained in this blog, there have been two Depuy ASR settlement agreements, mostly identical in material terms. The major difference is that the first settlement agreement covered those who had undergone revision surgery prior to August 31, 2013. The second settlement covered those people who had revision surgery between August 31, 2013 and January 31, 2015.

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Male Patient With Pain From Depuy ASR Hip

I have been getting a few calls recently from people who still have the Depuy ASR hip implanted in one or both hips. They are asking the right questions: Are the metal levels in my blood too high? How will metallosis affect my long-term health? Will the component slip on me now and cause all kinds of new pain? Should I schedule surgery and have the Depuy ASR components removed? Plainly, these are questions for a doctor, not a lawyer. I can’t answer any questions specific to your health. Eventually, however, these callers ask an intriguing question: I have the Depuy ASR hip implanted in my body and I have not yet scheduled revision surgery: Do I have a valid claim against Depuy and Johnson & Johnson? It’s a good question.

People with Depuy ASR hip components implanted in their bodies who did not undergo revision surgery did not “qualify” for the two settlements that have been reached in the Depuy ASR multidistrict litigation (DePuy Orthopaedics, Inc., ASR Hip Implant Products Liability Litigation, MDL 2197). But this does not mean they are not injured or that they do not have a valid claim. All it means is that they did not qualify to participate in the settlement based on the timelines in the settlement agreements. Let’s take a step back.

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I just spent a few days in Charleston, South Carolina. As always, I was mystified at all the different ways the hotel charged me for one room. There was of course the room charge (I was expecting that) but there were also daily parking fees, and taxes, taxes, taxes: state and city, a charge generically labeled “tax,” even a separate line-item for something called “tourism tax.” Beyond that, I tipped the bellman each time he touched my luggage, the barista for pouring my morning coffee, and the accommodating concierge who gave my family helpful maps of the city.

Paying Litigation Costs After Settlement

So let’s get it out of the way: everything in life costs money. A personal injury lawsuit is no different. It is expensive to bring a lawsuit, and it is extremely expensive to litigate a case through trial. Most times, an injury suit settles before trial, but even then there are costs that will have to be paid out of your negotiated settlement amount. Best to be educated about these costs up front and be prepared for them when your settlement approaches.

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“How am I supposed to pay all these medical bills?”

This is usually one of the first questions I get from people injured by a failed medical device. Typically a failed device like a hip or knee causes all kinds of health problems for a person.  Often a revision surgery is necessary, and sometimes several surgeries. All this extra medical care is expensive.  It also requires large amounts of time to rehabilitate and recover, which causes substantial time away from work.  Some of my clients lose their jobs, or are forced to quit because they can no longer do the work.  Meanwhile, the bills from surgeons and hospitals continue to pile up.

Medical Bills in a Product Liability Case

Medical Providers Expect Payment

First, no matter who is at fault for your failed medical device or harmful drug, the doctors and hospitals who provide you treatment will expect prompt payment of their bills.  After surgeries, these bills often come fast and furiously.  If you have health insurance you will need to arrange with the physician and/or the hospital ahead of time to file a claim for payment.  But even if you have health insurance you will most likely be responsible for payment of a significant portion of the costs of your medical care (through co-pays, deductibles, and/or percentages of the medical bill not covered by health insurance).  The surgeon or hospital will expect you to pay these amounts promptly.

So what can you do?

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Over the past several weeks we have reviewed the Depuy ASR Settlement Agreement, and recently the Part B extraordinary injury money awards that are available to qualified injured people.  You can read about the Part B “Extraordinary Injury Fund” (“EIF”) here, and about Part B “Miscellaneous Injuries” here.

Depuy ASR Plaintiff Reviews the Settlement AgreementIn this post I want to talk about the “Future Matrix,” which is a section in both settlement agreements that provides a pathway for individuals to pursue additional compensation when a problem arises after the original settlement has been signed and initial payments have been made.  It can be a very useful option for recovering additional money if a serious health problem arises after the initial settlement has been paid and resolved.  Let’s jump in.

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Client Reviews
I was involved in a case for the faulty hip replacements. Clay Hodges represented me. I can't say enough about how much he has helped me. Clay was able to win multiple settlements on my behalf with most of them being the maximum amount able to be awarded. Matt J.
Clay, thank you sir for making a disheartening experience at least palatable, you and your staff were honest, caring and understanding through the entire process of my wife’s hip replacements, while monetary settlements never make the pain and suffering end, it sometimes is the only way people can fight back to right a wrong. J. V.
We are absolutely pleased with how Clay Hodges handled my husband’s hip replacement claim. He always kept us informed of the progress. And, his work resulted in a settlement which we are extremely pleased. Thank you, Clay! Carol L. & Norm L.
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