All civil lawsuits come down to one thing— money. Sure, there will always be people who claim that they have filed their lawsuit out of a a sense of social responsibility and a genuine desire to help mankind, but injury cases– and medical device cases in particular– are really about getting financial compensation for an injury.
As soon as the DePuy ASR hip prosthesis was pulled from the market in August, 2010, a stream of people with these defective metal hip implants filed lawsuits against the manufacturer alleging amongst several things that the device resulted in pain, disability which may had resulted in the need for additional medical care or perhaps prevented a person from going about their employment.
Status of the current lawsuits
Presently, there are approximately 10,000 individual lawsuits that have been filed against DePuy. Most of these cases have been consolidated in a Multi-District Litigation group in Ohio or California where the cases are consolidated for purposes of discovery, yet will be tried individually. After two years of intensive litigation and fact gather related to both the specific damages that each plaintiff is alleging (as well as the release of information about the devices from DePuy) several bellwether cases have been set for trial.
The theory behind the bellwether system is that by trying different cases with specific demographics a value can be more easily assigned to people within a particular demographic– and hence the cases could theoretically be resolved more expeditiously.
Is a settlement of the pending DePuy ASR cases imminent?
As a handful of DePuy lawsuits get ready for trail, a recent Bloomberg report suggests that DePuy’s parent company, Johnson & Johnson may be making an attempt to resolve these cases before trial. Some have suggested that Johnson & Johnson is looking to resolve these cases in the neighborhood of $2 Billion. Sure $2,000,000,000.00 is an enormous amount of money! Buy when this figure is broken down on an individual basis– this translates into lass than $200,000 per for each plaintiff– a large sum, but is it really enough to fairly compensate these people?
Because there is a very diverse group of plaintiffs– some with more extensive medical treatment than others as well as a disparity amongst their ages, there surely would be some type of ‘merit based’ system implemented to allocate the amount of each person’s settlement.
$200k per plaintiff is a cheap way out
In medical device cases, like all personal injury cases, an injured party is awarded damages based upon two components: economic and non-economic damages. Economic damages would likely consist of:
- Past an future medical and surgical costs– for example: a revisionary surgery if necessary or blood monitoring for a patient with elevated heavy metal levels
- Medical equipment- such as orthopedic equipment and supplies
- Nursing care
- Physical therapy
- Time lost from work (if working)
Given the tangible nature of these ‘real’ expenses, economic damages are usually easier to calculate than damages for intangible, ‘non-economic’ damages for losses such as pain and suffering or disability relating to their defective hip and when they endured following a revisionary procedure.
Considering that the DePuy ASR was heavily promoted to ‘younger’ patients, the amount of hard economic losses could dwarf such a settlement proposal under the present scheme when expenses are computed throughout the person’s entire life. Theoretically, a 50-year-old person who was left disabled following a DePuy revision could have out-of-pocket expenses exceeding $1,000,000.00 after a wage loss and medical expense is calculated over the course of their lifetime. For more information about, the pain and expense related to hip revision surgery, take a look at this article here.
Where will these hip recall cases end up?
While there will undoubtedly be some gamesmanship when it comes of working toward the settlement of this matter. I’m certain that both sides in these lawsuits acknowledge that these case must settle– for the sake of both the individual plaintiffs as well as DePuy. The expense and logistics of trying thousands of these cases individually is laughable due to its sheer impracticability. However, as an advocate for people with pending DePuy and Stryker lawsuits, I feel like these manufacturers truly need to be scared into getting these cases resolved. Until, they see how some of these cases will play before a jury, I doubt we’ll see a whole lot of meaningful movement towards settlement.
Perhaps I’m wrong? But there truly are many, many people who have suffered meaningful losses due to an inherently defective product. These stories will resonate with jurors as they appreciate the fact that they people were truly injured through no fault of their own. Until, then who wants to put some estimates as to the real value of these cases?
For additional discussion take a look at these articles: