The biggest trial of the decade in orthopedics has been delayed again.
On September 20, 2013, U.S. District Judge David A. Katz, who is presiding over the DePuy ASR hip implant multidistrict litigation issued an order postponing the start date of the bellwether McCracken trial from September 24, 2013, to sometime within the next 90 days.
This is the second time the trial has been postponed. The trial had recently been scheduled to start on September 9, 2013. According to the recent order, “the scheduling of expert witnesses by both parties has become an extremely difficult task [due to the initial continuance]. Additionally, issues remain with regard to scheduling of additional depositions and pretrial discovery which are necessary for the thorough preparation and presentation of this bellwether case.”
Currently there are more than 8, 200 DePuy ASR lawsuits consolidated in the federal court system before U.S. District Judge Katz in the Northern District of Ohio. These cases are centralized as part of an MDL or multidistrict litigation. There are approximately 3, 000 other cases waiting in state courts.
The first federal bellwether trial was scheduled to begin on September 9, involving a lawsuit filed by Fay Dorney-Madgitz and her husband Harvey Madgitz. Two months before the trial was set to begin, a complaint filed by Ann McCracken was substituted as the case to be tried for the first bellwether.
The outcome of these bellwether trials are supposed to facilitate settlement negotiations. If a settlement is not reached, then these cases will be remanded back to the original U.S. District Courts for individual trials.
It’s been reported that DePuy’s parent, Johnson & Johnson (J&J) has been discussing a $3 billion settlement with approximately 11, 000 plaintiffs.
In addition to the upcoming MDL bellwether hearings, ASR trials will take place in state courts in San Francisco, New Jersey, Florida, Chicago and Los Angeles in the coming year. Each of the 11, 500 plaintiffs who filed a DePuy hip lawsuit would have the right to refuse a settlement and opt for a trial if they believe a jury verdict may be higher than the proposed accord amount.
J&J must still decide whether or not settlements would include a reimbursement policy with Medicare for any claims paid and the amount of compensation provided for extreme cases—those which entailed multiple corrective surgeries, or long hospitalization periods to deal with infections. A San Francisco-based lawyer who represents 270 ASR plaintiffs reportedly stated that, “There are a significant subset of clients who got very badly hurt by the device, and their injuries are much more than a simple revision…If those cases went to trial and there was a finding of liability, a jury would award them general damages in the seven figures.”
