Judge Catherine Blake, who is overseeing the Smith & Nephew Birmingham hip multi-district litigation in Baltimore, Maryland, recently issued an order setting out the bellwether trial schedule for the Birmingham Hip Resurfacing (BHR) cases.

Just to recap: there are two tracks of cases in the Smith & Nephew Birmingham hip litigation: BHR and THA. BHR refers to cases involving injured people who received Smith & Nephew Birmingham hip components as part of a resurfacing procedure. The BHR resurfacing system is a metal-on-metal (MoM) artificial hip, but in resurfacing procedures the hip “ball” bone is resurfaced with a metal covering and a metal acetabular shell is implanted into the hip socket, thus creating a MoM articulation. Smith & Nephew used cobalt and chromium to construct both of these resurfacing components. As with all metal-on-metal artificial hips, the Smith & Nephew BHR has been shown to wear down and leach metals into the blood and tissue of the patient, a condition called metallosis.

The second track of cases involves total hip arthroplasties (THA) using Smith & Nephew Birmingham components. These total hip replacements are constructed with Smith & Nephew BHR components and non-BHR components, but instead of resurfacing the “ball-bone” with a metal covering the bone is removed and replaced with a metal ball component (a femoral head).

So What is a Bellwether Trial?

A “bellwether” is a thing that shows others what is likely to happen in the future. It is an indicator of trends. In litigation, especially large-scale litigation like MDLs, a bellwether case can be a indicator of how strong or weak a type of case will look to juries. In multi-district litigation, there are simply too many cases to take to a jury verdict. It would take a lifetime to try all the cases in any MDL. For example, if one typical MDL trial lasts three weeks (they often last longer) and there are 1,000 cases in the MDL (the DePuy Pinnacle litigation alone had over 10,000 cases), it would take 57 years to try all those cases. Bellwether trials allow both sides to see (1) how strong is the evidence supporting liability for a defective product, and (2) what value a typical jury might assign to a particular type of injury caused by the product. If juries in bellwether trials consistently find no liability, it is a real signal that the cases may not be viable and certainly may not have much settlement value. On the other hand, if several bellwether trials yield large verdicts, it shows both sides, and especially the defendants, that the remaining cases pose serious financial risk to the manufacturer of the defective product. Bellwether trials provide a window into the challenges the clients face and give realistic expectations for settling cases.

Smith & Nephew Bellwether Trial Schedule

In Judge Blake’s recent order, the first bellwether trial for the BHR (resurfacing procedure) cases is scheduled for November 2, 2020. So a year from now. The second bellwether trial will begin January 11, 2021. The actual cases selected for these bellwether trials will be determined by June 15, 2020. The Order (Case Management Order No. 15) sets out all the key deadlines leading up to these bellwether trials, and I won’t list them all here, but one key date is October 2020, when Judge Blake will hold Daubert hearings to determine the admissibility of the scientific evidence and expert witness testimony. Judge Blake will decide then if the expert testimony is strong enough that it can be presented to a bellwether jury.

Finally, one “THA Track” bellwether trial is scheduled to begin March 1, 2021, but most of that scheduling has been deferred to a later order.

Can a Bellwether Trial Schedule Encourage Settlement?

Sure. Trial is always a motivator to resolve a case. Trials are extremely expensive and time-consuming for both sides. And if one side is aware that the facts don’t look so good for them, the imminent bellwether trial may inspire a renewed vigor to settle all the cases. Currently there is no indication that the Birmingham hip cases will reach a global settlement before the first bellwether trial, but it is certainly possible. I will keep you updated as always. Good luck.

What We Have Here is a Failure to Communicate

Often, the problem starts with the lawyer’s failure to communicate. People will tell me that they never hear from their attorney, and then suddenly, after many months or even years have passed, the lawyer will call and quickly explain the terms of a settlement offer then hurry off the phone. This is a mistake. The lawyer should take as long as necessary to fully explain why the settlement number is what it is. In fact, it is important for the lawyer to keep the client updated on developments throughout the litigation. For example, if another plaintiff in the larger litigation loses an important bellwether case, the lawyer should call and report the loss and what it may mean for the litigation and how it might impact settlement (obviously, it’s not good for all plaintiffs if a bellwether case is lost). If the client understands generally how the multi-district litigation is progressing, the client will be more prepared when a settlement offer finally arrives.

Suffering is Very Real and Very Personal

I have represented many people who have truly suffered when a medical device like an artificial hip has failed. The suffering is real. Some people endure tremendous pain and can’t get a good night’s sleep. Others must give up tennis; some can no longer garden or walk; still others have to quit their jobs. Let’s face it: money—even a lot of money—will not compensate the person for these hardships. It is difficult to walk with pain for years, then hear that the manufacturer who sold the defective product is offering X to settle all claims the person has now and in the future. For most people, X (no matter what it is) is never enough.

Settlement Offers Always Reflect the Strength of the Plaintiff’s Case

This is an obvious point but it must be emphasized: some cases are better than others. In the metal-on-metal (MoM) artificial hip litigation (several manufacturers were involved) it became clear that it was a big mistake to rush these MoM artificial hips to the market under the 510(k) pathway (which I have written about often). It would have been much safer if the companies slowed down, performed pre-market testing and analysis of the metal hip, and then made a prudent and careful decision about whether to move forward. Several companies didn’t choose that path, many thousands of people were injured as a result, and plaintiffs won a lot of bellwether trials. Eventually, the manufacturers of these metal-on-metal hip products paid billions of dollars to settle thousands of valid claims.

By contrast, in the Xarelto litigation, plaintiffs lost six bellwether cases. This does not mean the product is safe or even non-defective, but it does mean that the plaintiffs’ litigation teams struggled to marshal the facts sufficient to convince juries of the defects and defendants’ failure to warn of the risks. (A few plaintiffs in other Xarelto trials won their cases.) These bellwether trial losses undoubtedly affected the size and scope of the larger settlement that followed.

Every Product Case is Different

The individual confined to a wheelchair has a different claim and different damages from the person who had revision surgery but is now walking and pain-free. If one person is rendered disabled at a young age, he or she should have a strong lost earnings claim. If the second individual was injured after his retirement, he would not be in position to recover lost earnings. In defective product cases, some people have extraordinary injuries and others have more modest injuries. Both cases are important, but the settlement outcomes will be different.

Above all, before you sign anything, talk to your lawyer, ask all the questions you have, read the settlement documents carefully, and make an informed decision.

Note: This article was written in general terms and does not represent any details from any current or former client or any caller to this law office.