In litigation, there are several harsh and punishing deadlines. The worst one is the statute of limitations (“SOL”). The SOL is a statute in state or federal law that limits the time you are allowed to file a lawsuit. In North Carolina, for example, the SOL for bringing a personal injury claim against a person or company for negligence is three years. This means if a guy runs a red light and “T-bones” your car, causing you to break your leg, you have three years from the date of the car crash to file a lawsuit. This may seem like a reasonable amount of time; as the injured person you certainly have an obligation to pursue valid claims in a timely manner, but it can also lead to unintended and unfair results.

The SOL is just one unforgiving deadline that a person faces in the bumpy wagon ride of civil litigation. There are also discovery deadlines, deadlines to respond to motions, scheduling order deadlines, and others. One deadline may involve a settlement deadline. A settlement deadline is a date negotiated by both sides in a large-scale litigation requiring plaintiffs to take certain actions by a specific date or lose the right to participate in the settlement. In “mass tort” product liability cases, courts want to resolve hundreds or even thousands of cases as efficiently as possible. And settlement deadlines are a valuable tool in getting large numbers of plaintiffs to take quick action. Let’s look at one example:

The DePuy ASR Hip Settlement Deadlines

The parties in the DePuy ASR artificial hip litigation have negotiated three settlements so far, all with different deadlines. I wrote about those deadlines here. In a nutshell, each of the three settlements allowed plaintiffs to participate in settlement if conditions were met by a certain deadline. The most important date was the date the plaintiff had revision surgery to remove the (bad) artificial hip. In all three settlement agreements, an amount of money was offered based on the length of time the person had the hip implanted. If the plaintiff had the hip implanted for less than five years, that plaintiff was entitled to the full amount of the settlement (with some exceptions). After the five-year anniversary, the amounts paid for the injury went down. After the ten-year anniversary, the injured person was not entitled to compensation under the agreements. Why? That’s a good question. I don’t know exactly. But based on the most recent settlement, a person who had revision surgery nine years and eleven months after the original implant surgery was eligible for settlement but a person who had revision surgery thirty-five days later was not eligible. This is simply an unfair result, and it occurs any time there is some (arbitrary) settlement deadline imposed. The product-maker defendants will say: “Wait a minute. We have to draw the line somewhere, and in any case most non-defective artificial hips have a normal product life-span of around fifteen years. So we shouldn’t have to pay beyond ten years.”

I don’t accept this logic. If the product failed, there should be compensation, even if the revision surgery occurred beyond ten years.

So What if You Are Approaching the Anniversary of Your Implant Surgery?

I’ve gotten several calls from people who are nearing the ten-year anniversary from the original implant surgery. Some have pain; some have elevated cobalt and chromium metal levels; others have different symptoms. A few of them ask me: “Should I go ahead and get revision surgery to beat the settlement deadline?” It’s a good question.

My answer: get revision surgery if you need revision surgery. Medical decisions are always separate from legal considerations. Whether to get revision surgery is solely a decision to be made in careful discussion with your surgeon and your family.

That said, if you need revision or repair surgery, and if you make the decision to have revision surgery, and if you have some control over the scheduling of the surgery, and if a surgery anniversary is approaching, you may want to get revision surgery prior to the anniversary date of the original implant surgery. For example, if you had the DePuy ASR hip implanted on March 1, 2010, and you now need revision surgery, and your surgeon is available for revision surgery on February 20, 2018 and March 5, 2018, choose the earlier date. (This suggestion goes for any brand of failed artificial hip or other medical device.) If both dates work for you and your doctor, don’t potentially lose money simply by putting off the revision surgery by just a few weeks or months.

This is not legal or medical advice.

I get calls from people all over the country worried that they may have missed a deadline for participation in the Depuy ASR Artificial Hip Settlement. I understand the alarm. It would be dreadful to have the ASR metal-on-metal hip implanted, suffer mysterious pains and then elevated metal levels in the blood, discover the artificial hip components failed, go through a painful revision surgery, and then find that the settlement deadlines have all passed. The reality is this: at the moment, all the deadlines have passed. But many viable ASR claims against Depuy and Johnson & Johnson are still out there, and they should be fairly compensated like all the injured people that have come before.

Third Settlement (Second Extension)

In the most recent extension of the ASR Master Settlement Agreement, the deadline to enroll in the settlement was July 19, 2017. This second extension of the Master Settlement applied to individuals who had the ASR hip removed in revision surgery between between January 31, 2015 and February 15, 2017. The reason for this specific set of dates is that the settlement committees for plaintiffs and defendants wanted to include victims who had revision surgery somewhat late in the game. Recall that the Depuy ASR hip was first sold in 2005, twelve years ago. It was sold aggressively for five years, until it was finally recalled on August 24, 2010. Thousands of people were implanted with the ASR hip in that five-year period. Most of them were forced to undergo revision surgery before August 31, 2013, the deadline for participation in the first settlement. But hundreds of people did not undergo revision surgery until after August 31, 2013. Therefore, a first and then a second extension of the original agreement was established.

At this point the settlement(s) applied to all individuals who received revision surgery from 2005 through February 15, 2017. That covers a lot of people. But not everyone. I have clients who have undergone revision surgery after February 15, 2017. I have others who have revision surgery scheduled for later this year. They have been injured in many of the same ways as those people who had revision surgery in 2007, and 2010, and 2015. And they absolutely deserve fair and complete compensation for their injuries.

Why Further Settlement Extensions Are Necessary

Let’s look at the calendar for a moment. The recall for the Depuy ASR was August 24, 2010. This means that many people received the ASR hip in 2009 and 2010, and possibly even beyond August 2010 (as one can’t assume that the implantation stopped on a dime precisely on the recall date). With MoM hips, the outward signs of failure may not be obvious for years. A person with rising metal levels in the body may not have noticeable symptoms. They may learn of their elevated levels of cobalt and chromium (the metals associated with ASR MoM hip failures) in a routine blood test as part of a physical. A person who received the ASR hip in July 2010 is just seven years removed from surgery. Many people who had revision surgery seven or eight or nine years after the implant surgery have already received compensation under the settlement. The person who received an ASR hip in 2009 or 2010 should not be punished simply because they received the ASR hip late in the period when the hip was marketed, sold, and implanted.

The Takeaway

My point is this: I am quite certain further extensions of the Master Settlement will happen. The Depuy ASR litigation has been massive, and thousands of people have been compensated already. It would be extremely unfair and unjust to deny recovery for those remaining people who were injured “late in the game.” I suspect a third extension may be announced in 2018.

When Will It End?

Plainly, the litigation and the extensions won’t continue forever. One arbitrary cut-off I have seen is ten years. That is to say, so far, Depuy has not shown willingness to compensate individuals who received revision surgery more than ten years after the original implant surgery. The logic behind this cut-off is that typical artificial hips historically last twelve to fifteen years, so revision surgery of more than ten years is within normal ranges in the life-cycle of an artificial hip. I don’t buy it. If the Depuy ASR hip fails, even ten and a half years after implantation, the patient should be compensated.

It may be that future extensions may stretch to include ASR failures beyond ten years. But I am not at all certain of this. The reality is this: if you have a failed ASR hip and your surgeon advises you to have it removed, don’t delay. Go ahead and schedule revision surgery. It is important mainly for your health but also, potentially, for your case against Depuy.

One date to keep in mind is August 24, 2020, which is the ten-year anniversary of the date Depuy recalled the ASR hip. I don’t see it as an absolute hard deadline to bring a viable claim against Depuy, but it will mark a key milestone in the multidistrict litigation.

Until then, more people with viable cases against Depuy for the failure of the ASR hip will come forward. If you are one of them, and would like more information, give me a call (919.830.5602).

Some late-breaking news: The Depuy ASR Settlement Agreement has been extended to cover injured people who received a revision surgery after January 31, 2015. The extension was announced yesterday. Here’s how it works: if you received a Depuy ASR artificial hip, and then had revision surgery to remove the component between January 31, 2015 and February 15, 2017, you now may qualify to participate in the Settlement Agreement negotiated between plaintiffs and the defendants.

Let’s back up.

Before Yesterday, Where Were We?

Two settlement agreements have been reached in the Depuy ASR multi-district litigation (MDL). To qualify for the “2013 Settlement” you must have undergone revision surgery on or before August 31, 2013. To qualify for the “2015 Settlement” you must have undergone revision surgery between August 31, 2013 and January 31, 2015. The key terms in both settlement agreements were essentially the same, and the amounts you were entitled to recover were also the same.

These settlement agreements had deadlines which created a large group of people who could not participate in the settlement, specifically those who had not undergone revision by January 31, 2015 (including some of my clients).

The Depuy ASR hip was recalled on August 24, 2010, over six years ago. That meant that people were still receiving the Depuy ASR implants in 2010 and likely after August 24, 2010 (as it takes time before a recall is fully communicated to the medical community). Let’s say you had hip replacement surgery on in May 15, 2010, but you did not feel severe pain for a few years, then finally decided to undergo revision surgery on February 15, 2015. At that point you were beyond the January 31, 2015 deadline in the second Settlement Agreement and could not participate in settlement.

Even though your claims for injuries were just as valid as any other injured person who came before and who qualified to participate in the settlement based on (arbitrary) settlement deadlines, you could not settle your case. First, remember that the Depuy ASR hip components failed at an unreasonably high rate for patients. Second, even though your revision surgery occurred after January 31, 2015, it is still revision surgery, a painful procedure which became necessary only because the Depuy ASR hip failed. So there was always a group of people who were injured but not eligible to participate in the settlement. Fortunately, that temporary injustice was rectified yesterday.

I predicted last year the Depuy ASR MDL would eventually extend the deadlines for participation in the settlement. I am glad they finally made the announcement yesterday.

Recap: ASR Revision Surgery Between January 31, 2015 and February 15, 2017

Again, to be eligible you must have first received a Depuy ASR artificial hip and then had revision surgery to remove the ASR components between January 31, 2015 and February 15, 2017. Before this decision those people who received revision surgeries after January 31, 2015 were essentially left in limbo.

Deadlines Extended for Late Filers

In addition, the Plaintiffs’ Executive Committee for the Depuy ASR litigation announced that those cases that had been eligible to participate in the first two rounds of settlement were still eligible to participate in the settlement program. I understand this to mean that if you received a revision surgery prior to January 31, 2015, but somehow failed to bring a claim by the deadlines (maybe you were not aware of the settlement or the deadlines) you can now request to participate fully in the settlement (if you meet all criteria for settlement). This is a nice development, as the language of the first two settlements indicated that if you did not bring a claim by a certain date, you would not be eligible to participate. My takeaway is that all sides are now working hard to include every available person who may have been harmed by the failed Depuy ASR components.

Part B “Extraordinary Injury Fund” Also Extended

The Part B section of the Settlement Agreements, which I wrote about here, will also be made available for individuals who received revision surgeries after January 31, 2015. As I’ve written about on this site, the Part B awards were built around “extraordinary injury” following the artificial hip failure, and provided extra compensation to people suffering from particularly bad results, such as heart attack, stroke, foot drop, pulmonary embolism, deep vein thrombosis, dislocation, or infection, and monetary losses like lost earnings.

If you had the Depuy ASR artificial hip implanted, and underwent revision surgery on or after February 1, 2015, you may now be eligible to participate in the Depuy ASR settlement program. Good luck, and call me if I can answer any other questions.

That is exactly what happened in one of the first important Depuy ASR Hip trials in California.

The Jury Trial

On March 8, 2013, a jury in Los Angeles Superior Court awarded $8,338,236.12 for a man injured by the failure of the Depuy ASR Hip. Loren Kransky alleged that the Depuy ASR hip components were negligently designed, that the components had a design defect, and that Depuy failed to warn him and his doctors about the potential risks involved in implanting the device.

After a five-week trial in 2013, the jury in the California case awarded Mr. Kransky $338,236.12 in “economic damages” and $8,000,000.00 in “pain and suffering” damages. Jurors in the case found that the device was defective at the time of sale, and that it injured the plaintiff. The jury found in favor of Mr. Kransky and awarded damages for medical costs and for emotional suffering and distress.

The jury did not award punitive damages to Mr. Kransky. The jury did not find that Depuy acted with fraud or malice, which prevented an award of punitive damages. Which was good for Depuy, as Mr. Kransky’s legal team aggressively argued for punitive damages in amounts that could have exceeded $100,000,000.00.

more The Appeal

After the jury verdict, Depuy filed a flurry of post-trial motions, which the trial court rejected. Depuy then filed appeal. Depuy argued several issues on appeal, but I want to focus on the most important defense argument: that the trial court made a fatal error when it prevented Depuy from entering evidence at trial that the U.S. Food and Drug Administration approved the Depuy ASR device for sale and marketing. Let me explain.

Before the start of the 2013 trial, Mr. Kransky filed a motion in limine asking the court to exclude evidence that the Depuy ASR device was approved by the FDA. Kransky argued that because the Depuy ASR hip hit the market under the abbreviated and less rigorous 510(k) process (which I’ve written about often), that mentioning FDA “approval” would confuse the jury and unfairly prejudice the Plaintiff’s case. The judge agreed, noting that the 510(k) was a limited review process which was not as rigorous as the comprehensive Premarket Approval process, and that it could confuse the relevant issues and consume too much time for a limited purpose.

On appeal Depuy hammered away at this decision by the trial judge, arguing that it was prejudicial to Depuy not to be allowed to present evidence that the FDA approved the device. On July 21, 2016, the California Second District Court of Appeal upheld the decision of the trial judge on this issue, writing that evidence of the FDA’s 510(k) device approval “was not relevant to, or had little probative value in, a Montana products liability design defect claim.” California Appeal Decision, July 21, 2016.

Although the appellate court in California was required to interpret Montana law for this appeal (because Kransky was a Montana citizen and first filed suit in Montana), I believe the decision is very important for all future cases because it shines a light on the rather easy road a medical device can travel to the marketplace under the limited 510(k) review process.

The Takeaway: Rejection of 510(k) as Valid “FDA Approval”

The Opinion should be read as a rejection of the defense “don’t blame me judge; the FDA approved our medical device.” The appeal’s court shut down that argument, clearly recognizing that Depuy chose to seek approval of the Depuy ASR hip through the much easier 510(k) process, which is inherently less credible than a full blown Premarket Approval (PMA) process. Because of the decision by Depuy to opt for the 510(k) process, the FDA had much less evidence to guide its ultimate decision to approve a device for sale. If Depuy wanted the full value and protection of “FDA approval,” Depuy should have put the ASR Hip through rigorous testing and clinical trials, which are required under PMA.

Depuy can’t have it both ways. It can’t choose a limited review process to get its ASR product quickly to the market, then when the device fails, defend itself by saying it received approval from the FDA. In California, the trial court and now the appellate court rejected that sleight of hand argument by Depuy.

Further Takeaway: Justice Delayed

But note the key dates in this case: Mr. Kransky received the Depuy ASR hip implant in 2007. He then suffered pain and high metal levels in his blood. By 2012 the device had to be removed. In 2013 Kransky won an $8.3 million jury verdict from Depuy. Now here we are, more than three years after the trial, and the appellate court has finally rendered a decision on Depuy’s appeal. Depuy can certainly attempt to appeal further, but the hope is that this decision ends the case and Depuy pays Mr. Kransky his money. After all, it’s been nine years since the defectively designed Depuy ASR hip was surgically implanted in his body. The man has suffered enough.

Finally, the hope is that with this appellate decision upholding a large jury award, Depuy will work more generously to resolve the remaining lawsuits over the Depuy ASR hip. We will see.

The case is Kransky (Ellis) v. DePuy Orthopaedics (Los Angeles Superior Court)

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.

more No Settlement Agreement (Yet) for Recent Revision Surgeries

There has been no “third” settlement agreement. This means that there is currently no procedure in place to settle claims with individuals who received revision surgery after January 31, 2015. I suspect that a third settlement agreement (looking much like the first two) will eventually be established and announced. But as of today there is no agreement by which a person revised after January 31, 2015 can pursue settlement compensation with Depuy and J&J.

Length of Time Between Implant and Revision

The 2013 Settlement Agreement did not explicitly set out a cut-off date for settlement eligibility based on the length of time between implant surgery and revision surgery. In that agreement, to be an “Eligible United States Claimant,” you had to be a U.S. Patient, had implantation of the Depuy ASR, and underwent revision surgery.

The 2015 Settlement Agreement added a fourth condition: The time between implantation and revision surgery must be less than nine years. Which is to say, if nine years or more have passed between implantation surgery and revision surgery, you would not be eligible to participate in the settlements.

Nine-Year Cut Off

So that seems to be a bright line drawn in the sand: If you lived with the Depuy ASR hip in your body for nine years or longer, Depuy and J&J do not seem willing to recognize a compensable injury. (Note: This does not mean you cannot attempt to seek compensation outside the settlement scheme if you had revision beyond the nine-year cut-off. In fact you should. But it does signal that Depuy is not willing to recognize damages in cases where the individual lived with the Depuy ASR hip for nine years or longer.)

Example: if the Depuy ASR hip was implanted in your body on May 12, 2008, you would arguably have until May 11, 2017 to undergo revision surgery to be considered “eligible” for participation in any settlement.

Remember that the official recall of the Depuy ASR artificial hip was August 24, 2010. For the sake of simplicity, let’s presume that no Depuy ASR hips were implanted after the recall date (and this can’t be true, but go with it). In that case, the outermost limit for eligible claims under the settlement agreement would be August 23, 2019. Keep these timelines in mind.

Always Beware the Statute of Limitation

Even though you may still be able to schedule revision surgery less than nine years from implantation, the statute of limitation could still end your case. I wrote about statutes of limitation here. I will say to be very cautious about delaying legal action if you believe you have a claim. A case involving revision surgery more than eight years after implantation may well have a statute of limitation issue lurking. And if it does, it could stop an otherwise valid claim in its tracks.

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.

more

Two settlement agreements were reached in the Depuy ASR MDL. To qualify for the “2013 Settlement” you must have undergone revision surgery on or before August 31, 2013. To qualify for the “2015 Settlement” you must have undergone revision surgery between August 31, 2013 and January 31, 2015.

Depuy ASR Hips Still Implanted After January 31, 2015

Plainly this creates a group of people who could not participate in the settlement: those who had not undergone revision by January 31, 2015. This includes a substantial number of people (some of whom I represent). Let’s take a quick look at the calendar: Depuy issued a recall of the ASR hip on August 24, 2010. This means that people were receiving Depuy ASR implants in 2010, and quite likely after August 24, 2010 (as it often takes time before a recall is fully communicated to the broader medical community). Let’s say you had hip replacement surgery on in May 15, 2010, and for a few years the implant felt OK. But then you started to feel some pain, and then six months ago had blood work done. Your doctor told you that you had elevated levels of chromium and cobalt in your system. Your doctor then said this is likely the result of your metal-on-metal Depuy ASR hip implant. At this point you are beyond the January 31, 2015 deadline to undergo revision surgery, so you cannot participate in the 2015 Settlement. But you still have a valid claim.

Valid ASR Claims After January 31, 2015

First, the Depuy ASR hip components failed at an unacceptably high rate. Thousands of revision surgeries have taken place because the metal-on-metal Depuy ASR hips failed. Second, in your specific case you are suffering injury; namely, pain and elevated metal levels in the blood (and you do not yet know if other complications are developing). Third, even if your revision surgery occurred after January 31, 2015, you were still injured by a defective product. In the eyes of the law, your claim should be as valid as the person who received revision surgery on July 15, 2013 or January 15, 2015. Fourth, even if you do not undergo revision surgery, you may possibly have a valid claim against Depuy and Johnson & Johnson. If you can show injury—high metal levels, a loose acetabular cup causing pain, or other complications, you have compensable claims. Most people suffering these injuries will schedule revision surgery (and should) but the absence of revision surgery does not mean you have no compensable injury.

My Hunch

I would presume that Depuy and the plaintiffs’ executive committee will eventually agree to a third settlement agreement to cover those people who had revision surgeries after January 31, 2015. But even if this third agreement does not happen, each person who was injured by the Depuy ASR hip has a valid claim and should bring such a claim against Depuy and Johnson & Johnson (preferably with the help of a knowledgeable attorney).

Beware the Statute of Limitation

But with any valid personal injury claim, you must always be aware of the relevant statute of limitation (SOL) in your state. I have written about these statutes here. The SOL limits the amount of time a person is permitted to bring a lawsuit after an injury, including a physical injury from a medical device like the Depuy ASR hip. Often the period of time begins to run when the injury is discovered. So in the hypothetical above, the injured person should argue that she was unaware of her injury until the blood work was done and her elevated metal levels were discovered. Still, ferocious battles often occur in court over whether the SOL has run on any claim. Don’t “sleep on your rights.”

The Takeaway: If you still have the Depuy ASR hip (or the Depuy Pinnacle hip) implanted, don’t presume you no longer have a claim against Depuy and Johnson & Johnson, but be vigilant and bring your claim as soon as you are aware you were injured by the Depuy artificial hip.

Note: The information in this post regarding the Depuy ASR settlement agreements is publically available. No information in this post should be considered legal advice. Feel free to call me for more information: (919) 830-5602.

In 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.

more Future Matrix

There are actually two Depuy ASR Settlements, the first for those who had revision surgery on or before August 31, 2013, and the second for those who had revision surgery on or before January 31, 2015. The Future Matrix in the first agreement covers injuries that occur on or after April 1, 2014 but within two years of the Depuy ASR Revision Surgery. The Future Matrix in the second agreement covers injuries that occur on or after August 1, 2015 but within two years of the Depuy ASR Revision Surgery. So in both cases, the outer time limit for recovery is two years after the date of your Revision Surgery.

Quick Example: let’s say one of my clients had Revision Surgery on January 15, 2015 (so part of the second settlement agreement), and on November 30, 2016 she suffered one of the injuries listed under “Future Matrix.” She would qualify for additional compensation. But if she suffered that same injury on January 16, 2017 she would not qualify under the timelines (although, being that it is one day after the deadline, I would fight like a dog to recover compensation for my client).

Under Part B of both agreements is a section called Future Matrix. Both agreements permit additional compensation for qualified “claimants” who “suffer a unique or extraordinary injury in connection with the ASR Revision Surgery, a subsequent Re-Revision Surgery or that directly relates to the reason necessitating an ASR Revision Surgery or Covered Re-Revision Surgery.” Depuy ASR Part B Award Schedule.

Injury Categories

All this may sound confusing, but once you review you see what the committee has set out to cover. The categories of future injuries are the same as those for past extraordinary injuries. They are:

1. Re-Revision Surgery (surgery required after the revision surgery)
2. Pulmonary Embolism or Deep Vein Thrombosis
3. Dislocation (of the hip bone)
4. Foot drop (can’t just have symptoms; you need diagnosis from doctor)
5. Infection
6. Delayed Recovery (e.g., a year later you still must walk with a cane or walker)
7. Heart Attack
8. Stroke
9. Death
10. Miscellaneous Extraordinary Injury (which I wrote about here).

Under Future Matrix, if you sign on to the settlement, and at the time you qualify only for a Part A “base” award, you would receive that Part A award only. But six months later you suffer one of the categories of injury listed above (e.g. a need arises for re-revision surgery, or your doctor diagnoses you with foot drop) you would be entitled to compensation for this future extraordinary injury. Keep in mind there are certain reductions based on the passage of time.

Alert No. 2016-2

The Claims Processor for the Depuy ASR Settlements issued an Alert on March 3, 2016 regarding Future Matrix payments (in the first Settlement Agreement). The Settlement Committee has decided that Future Matrix awards for myocardial infarction (heart attack) will be reduced by 50%, and all other Part B extraordinary injuries (listed above) will be reduced by 75%. Interestingly, the Settlement Committee noted in the Alert that it may revisit these reductions for future injuries at the end of the process if funds are still available.

The takeaway from this Alert is that you must be very careful as a person injured by the Depuy ASR hip to make sure you recover all the funds to which you are entitled.

A Note on Handling Your Settlement Without a Lawyer

The math in the settlement matrix can be confusing, and although the agreements permit an injured person to go it alone and participate in the settlement without a lawyer, I highly encourage you to find a good lawyer to assist you in this process. The main reason is that you may well overlook something that can cost you thousands of dollars. For example, if you miss the deadline for filing a claim for your Re-Revision Surgery, you could lose $150,000.00 which the settlement pays for this injury. The second reason is that injured people who try to proceed through the settlement without a lawyer will have their settlement money reduced by 29%, along with further deductions for common benefit fees and expenses (these last two deductions apply as well to people represented by a lawyer). So right off the bat you will lose 29% by representing yourself, plus you will have to do all the work, which is substantial and complex. So find a good attorney to help you.

Please note, the deadlines for participating in the first two Depuy ASR settlements have passed. Nevertheless, people are still filing lawsuits against Depuy Orthopaedics and Johnson & Johnson. More settlement agreements will have to be reached in the future, because many people who have been injured by the metal-on-metal Depuy ASR hip have not yet been compensated for their injuries. When those new settlement agreements are established, they will likely look much like the first two agreements.

Disclaimer: The information in this post is available to the public. I had to distill several pages from the settlement agreements in this article. The Part B EIF “future matrix” is more complex than I have set out. It requires someone who can present your claims carefully and convincingly, with straightforward evidence from your medical and employment records. Also, understand that there are time limits to qualifying for the settlement. This is not legal advice. Call me for more information.