We are getting more clarity on the recent extension of the Settlement Agreement in the Depuy ASR artificial hip litigation. As I wrote about in a previous post, the ASR Settlement has now been extended to cover people implanted with the Depuy ASR hip who received a revision surgery between January 31, 2015 and February 15, 2017. This is an important development because up to this point the Settlement did not include any injured people who had undergone revision surgery after January 31, 2015. And this represented a lot of people.

Last week the Depuy ASR MDL executive committees sent correspondence with more clarification of the extension agreement. To make things easy, I am going to refer to this Depuy ASR extension agreement as the “Third Settlement” (because it follows two prior Settlement Agreements which had clearly defined terms and clearly defined deadlines).

Third Settlement Enrollment Deadlines

The deadline to enroll in the Third Settlement is now June 19, 2017. If you are representing yourself in the settlement, please mark this number on your calendar. If you have an attorney he or she should be ready with all documents and forms to enroll you by that time. Seriously, this is an important deadline, so don’t overlook it. Also, this deadline is a change from the first announcement of the Third Settlement; originally, the deadline was May 5, 2017. That has now been extended, so that’s a bit of good news.

The deadline to file claims in the “Part B” portion of the Third Settlement is October 27, 2017. I wrote about Part B “Extraordinary Injury Fund” here and here and here, but briefly, Part B recognized “extraordinary injury” that followed ASR hip failure, and provided additional compensation to people suffering from particularly bad results, such as heart attack, stroke, foot drop, pulmonary embolism, deep vein thrombosis, dislocation, or infection, and lost earnings.

“Future injuries,” which is defined under the Part B section of the master settlement agreement, will be those injuries that arise after September 1, 2017. If you do not have an attorney helping you, I urge you to read the settlement agreement carefully (even two or three times) so you do not miss any opportunities for Part B EIF compensation.

What If My Depuy ASR Revision Surgery Occurred Nine Years After Implant Surgery?

For the first time, the Third Settlement addresses the issue of a revision surgery that occurs more than nine years after the original Implant Surgery. Up to this point, the Depuy ASR settlement agreements did not recognize injury or provide compensation for revision surgeries beyond the nine-year anniversary. I wrote about the nine-year cut-off here. The Third Settlement appears to recognize this “blind spot” and provides an opportunity for patients who had revision surgeries between nine and ten years to receive compensation.

The Third Settlement will pay $50,000.00 for these nine-to-ten years claims, but the agreement also calls for additional compensation from the Part B EIF Fund of $50,000.00. So it appears that injured people who received revision surgeries between nine and ten years after implantation will receive a total of $100,000.00 in a Part A base award. These people will also be able to participate in Part B funding if they can show extraordinary injury.

For patients with revision surgery between eight and nine years, the Part A base award will be $125,000.00, with $25,000.00 provided by the EIF Fund.

This is a positive development, because it recognizes that with the passage of years, many victims are still going through revision surgeries, even beyond the eight or nine year anniversaries of the original surgeries. These people have been injured by the failure of the Depuy ASR hip system and should be compensated. The Third Settlement finally recognizes this group of injured people.

Remember that the Depuy ASR hip was recalled on August 24, 2010, almost seven years ago. So, for example, if you had the original implant surgery on March 21, 2008 but did not feel severe pain for six or seven years and did not undergo revision surgery until April 1, 2017, until now you would have no recognized claims under the settlement agreements. Now you do.

If you are attempting to handle this settlement by yourself (that is, without an attorney) you will need to keep up with all developments from the U.S. ASR Hip Settlement website operated by Brown Greer. Keep in mind that for pro se litigants (those people representing themselves) there is a 29% reduction in the overall settlement payment. If you would like help navigating your case, or the Depuy settlement, or if you just have general questions, you can call me at (919) 830-5602. Either way, good luck.

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.