Stryker Orthopaedics has announced that it reached a national settlement in the multidistrict litigation focused on the Stryker LFIT V40 femoral head. The LFIT V40 femoral head is one component of Stryker’s artificial hip system. This settlement announcement is a bit surprising, as the MDL was created for the LFIT V40 femoral head in April 2017. As medical device multidistrict litigation goes, this is a very quick path from formation of the MDL to settlement. One reason for the speed is that this MDL is smaller than other artificial hip MDLs based on the number of injured plaintiffs. The LFIT V40 settlement involves approximately 125 cases in the federal court MDL and an additional 140 cases in New Jersey state court.

In any event, for those people hurt by the LFIT V40 femoral head, this is good news. The terms of the settlement have not been released. I will certainly update this website when the settlement agreement is made available. As for now, all discovery and trial preparation have been stayed (or stopped). The first bellwether trial, scheduled for September 2019, will be removed from the trial calendar. The focus now will be on processing individual settlements for plaintiffs.

Remember that each plaintiff in this or any other medical device litigation is not required to accept the settlement. Although it is often reasonable for the plaintiff to accept the terms of settlement, no plaintiff will be compelled to accept any settlement. As with any litigation, it is important for individual plaintiffs and their attorneys to slow down, review all the terms of settlement, and make a careful decision on whether to participate in the settlement.

I have written about the LFIT V40 femoral head product failure several times in the past. Problems with the hip component began several years ago. On August 29, 2016, Stryker announced a recall for the LFIT V40 head. The recall focused solely on the femoral head, which is the “ball” part of the hip replacement. This femoral head fits inside the “cup” and is also attached to the “stem” (which is connected to the femur, or thigh bone).

The recall involved LFIT V40 heads manufactured before 2011 with the following catalog numbers and sizes:

LFIT V40 Femoral Head Is a Metal-on-Polyethylene (MoP) Artificial Hip

Unlike many other artificial hip product failures, the Stryker LFIT V40 not part of a metal-on-metal artificial hip system. The LFIT V40 system is built utilizing a metal acetabular cup, a polyethylene (plastic) liner, the LFIT V40 cobalt-chromium femoral head, and a titanium femoral stem. Unfortunately, soon after being sold and implanted, the Stryker LFIT V40 began to fail, at a high rate. Patients who received the Stryker LFIT V40 suffered similar symptoms as those who received metal-on-metal hips, including metallosis.

LFIT V40 Taper Lock Failure

The failure of the Stryker LFIT V40 involved the junction of the neck of the femoral stem and the femoral head or ball. This connection was intended to be permanently secured through a taper lock system, holding the stem securely to the ball. However, in many cases the LFIT V40 femoral head began to corrode, which means to disintegrate and lose metal. The corrosion occurred at the site of the connection to the neck (the taper lock). This corrosion in the head would progress slowly, but over time the corrosion would cause the taper lock to loosen. Eventually, the neck would corrode as well, and once the neck began to corrode the breakdown of the artificial hip would advance more quickly. One study found that the loosening would cause fretting and micro-motion at the taper lock site, and this friction would cause metals to be released into body. Thus, the Stryker metal-on-polyethylene (MoP) artificial hip resulted in patients suffering from metallosis, just like so many other patients who received metal-on-metal (MoM) artificial hips.

Keep in mind that the corrosion in the LFIT V40 can be slow. This means you may not know the Stryker hip is failing and releasing cobalt and chromium into the body for years. By then, the neck may have begun to corrode, and when that happens the femoral stem may need to be removed and replaced, which can be a very difficult surgery. The femoral stem is implanted down the center of the femur bone, and when it sets it is usually there permanently. Removing the femoral stem is difficult and painful.

Check back here for updates on the Stryker LFIT V40 femoral head settlement. And if you believe you have a failed artificial hip in your body, call me to discuss: (919) 830-5602.

This is my pitch: People who had to undergo revision surgery because their DePuy ASR artificial hip failed should be compensated for their injuries, even if the revision surgery occurred beyond the ten-year anniversary date of the original implant surgery.

Let me admit the obvious: It’s a bit self-serving for me to argue this point. I am an attorney and I represent individuals injured by the failure of the DePuy ASR device. But I have read a lot about these cases, over many years, and the more I understand the science behind these metal-on-metal (MoM) hips (or the lack of science), I am more convinced that thousands of people have been unfairly injured, even if those injuries did not become obvious for several years. Even ten years.

The DePuy ASR Settlements

I have written extensively about the ASR Settlements. The first and second agreements offered compensation for individuals who had revision surgery up to nine years after the original implant surgery. The third settlement agreement (or second extension agreement if that makes more sense), for the first time, extended the offer of compensation to those individuals who underwent revision surgery after the nine year anniversary up to the ten year anniversary. So that was progress.

The deadline for the third settlement deadline has passed. It applied to people who had revision surgery prior to February 15, 2017 (essentially a year ago). Still, there are many people out there who had revision surgery after February 15, 2017. Other people are having problems but haven’t scheduled revision surgery. Some of these people had the ASR implanted eight years ago, but others may have had it implanted ten years ago, and even longer.

My Pitch:

Most of these people implanted with the ASR have no idea the product in their bodies fails at a much greater rate than other artificial hip systems. Many of these people are not aware that they have been injured. For example, many people do not immediately feel the effects of metallosis (the build up of metals in the blood and tissue). Others have neurological symptoms related to elevated metal levels but assume it is part of aging or caused by something else. A few victims know their DePuy ASR hip has failed but so dread further surgery that they put revision off and simply live with the unpleasant symptoms. These people are injured by the DePuy ASR device, much like people who had revision surgery five or six or eight years after implant surgery.

Beyond that, important information regarding the high failure rate of the ASR took years to be discovered. In hindsight it appears the makers of the ASR were in no hurry to release studies, information, and documentation detailing the high failure rates. I wrote about some of that extensive evidence here. The point is, if a person doesn’t know what has caused her injuries, how can she pursue a claim?

Necessary Evils

Settlements are necessary evils in litigation. With hundreds or thousands of injured plaintiffs in huge product cases, there is simply no other way to resolve so many lawsuits. And let’s face it: in many cases, both sides go away unhappy. The medical device makers don’t want to pay billions of dollars to settle cases, and the injured plaintiffs think the terms of settlement are not generous enough to compensate them for their specific injuries. And with any settlement, there will be deadlines that are completely arbitrary. These deadlines inevitably create bizarre and unfair results. For example, I suspect there are at least a handful of people who got revision surgery to remove the DePuy ASR hip on February 16, 2017. Those people did not qualify for the latest settlement agreement. By one day. And there will be plenty of people who received revision surgery at ten years and one day, or ten years and one month. It is simply bewildering that those people should not be permitted to participate in some kind of meaningful settlement.

I believe these people have viable claims. And DePuy Orthopaedics should recognize and pay these claims.

The bottom line is this: time is running out. If you have the DePuy ASR hip implanted, and you have had or need revision surgery, talk to a lawyer immediately about reviewing your possible claims. My firm number is (919) 830-5602. Good luck.

There have been two major developments in testosterone replacement therapy litigation in the past week. Last Thursday Eli Lilly & Co., the maker of the testosterone product Axiron, announced to Judge Matthew Kennelly in Illinois that an agreement had been reached to settle claims by people injured by Axiron testosterone. In the second development, the same judge tossed a jury verdict awarding $150,000,000.00 in punitive damages to a man who suffered a heart attack while taking Androgel testosterone.

Let’s take a quick look at both litigation developments:

Axiron Testosterone Global Settlement

Two bellwether trials in the Axiron testosterone litigation had been scheduled for January and March 2018. In one case, a plaintiff alleged that Axiron had caused his heart attack. In the second case, the plaintiff alleged that the testosterone product had caused deep vein thrombosis (DVT). These two cases were going to be the first trials over injuries sustained by Axiron in the multidistrict litigation, or MDL. Nevertheless, on December 21, 2017 Eli Lilly announced to the judge that a framework for settling all Axiron lawsuits had been reached by the executive committees for the plaintiffs and defendants.

The terms of the proposed settlement were not announced. The judge gave both sides forty-five (45) days to finalize the terms of the settlement. The Axiron testosterone cases are part of more than 6,000 lawsuits brought against several testosterone makers, including Eli Lilly, AbbVie, and Auxilium.

On the strength of this settlement announcement, Judge Kennelly postponed the upcoming Axiron bellwether trials and all trial deadlines. In a way this is a shame, as several bellwether trial verdicts give all sides a clear picture of how juries view the harm done. Of course, there is serious risk on both sides in trying these cases. If a jury awards a huge amount of damages, the defendant company will eventually pay more in the larger settlement. If several juries find no link to the product and the injury, the plaintiffs suffer. We will not get to see what juries thought of the Axiron testosterone product at this point.

I will update you here as soon as the Axiron Master Settlement Agreement is released.

Androgel: $150,000,000 Jury Award Set Aside

I must admit I saw this coming. I essentially predicted it. I wrote about Mr. Mitchell’s large punitive damages award in August, which you can read here. You may recall that I pointed out then the serious problem with the jury’s verdict: that it awarded punitive damages without any award for compensatory damages. As I explained months ago, to support an award for punitive damages, there usually must be some award for actual damages. Think of this way: in order for a plaintiff to qualify for a punitive damages award, that plaintiff must show that he has been directly harmed by the product, even if the harm is minimal.

In this case, Mr. Mitchell suffered serious harm: a heart attack. However, the jury could not agree that the heart attack was caused by the Androgel testosterone. Nevertheless, the jury did believe that AbbVie, Inc., the maker of Androgel, should pay for its fraudulent misrepresentation. The jury agreed with Mitchell’s claim that AbbVie targeted middle-aged men with misleading marketing that Androgel could treat low testosterone and improve lives. The jury then awarded a huge punitive damages award, with no underlying compensatory damages award. The jury appeared to find that AbbVie should be punished for fraudulent marketing, even though it could not connect Androgel to Mitchell’s heart attack.

As I said then, this was a “glaring problem” with the jury’s verdict. And Judge Kennelly, last Friday, tossed out the award altogether. He wrote that it was illogical to assert “simultaneously” that Mr. Mitchell had been damaged and not damaged. The judge wrote that the verdict was “internally inconsistent.” He makes a point.

Plaintiff Jesse Mitchell will get a new day in court. Judge Kennelly ordered a new trial in the case, although a new trial date has not been set. But again, as I wrote above, there is risk for all sides in any trial, and Mr. Mitchell’s case is an excellent example of this risk.

If you took any testosterone product in the past and suffered injuries, give me a call ((919) 830-5602) to discuss your potential case.

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).

Here’s a scenario: you had hip replacement surgery several years ago. In 2015 the hip began to hurt and cause other problems. You had revision surgery in 2016. While at home one afternoon recovering from the revision surgery, you see seventeen commercials from personal injury law firms asking if you recently had revision surgery following the failure of the [fill in the brand name] artificial hip. If so, lawyers are standing by to assist you with your case.

(At this point, if relevant to your situation please substitute “IVC filter” or “hernia mesh” or “artificial knee” or any number of risky prescription drugs in the scenario above for “artificial hip.”)

So your next thought may be: I should represent myself. This is known as being a pro se litigant. If that is your thought, your next question should be, “what steps should I take to make sure I get a full and fair settlement for my product liability case?” It’s a great question.

The First Thing You Do

In a word: hoard. Collect, gather, organize. Seriously, it is time to start building your case file. You will need to collect everything related to your product liability failure and to your injuries. What is relevant? Well, virtually everything could be relevant to your product failure injury claim, so gather and keep track of and organize everything. When in doubt, identify it and file it away.

Some of the documentation and evidence you will need:

• Medical records. This is rather obvious, but don’t assume just because you obtained the operative notes from your surgeon in the revision surgery that you have all you need. You don’t. You will also want to gather your complete medical history from the surgeon, your primary doctor, your physical therapist, any other medical care providers, even chiropractors and pharmacists. You need to gather your complete medical file. The defense will ask for everything, because one thing they will be searching for is a defense to your claim (e.g., were you rollerblading with your grandchildren the week before your revision surgery, taking a horrific spill?)
• Journal of symptoms/pain. It may sound like overkill, but keeping detailed notes on the onset of pain, the severity of pain, the levels of pain through the day, and other information may well win your case or increase your settlement offer. For example, what if you and your husband were competitive square dancers, and traveled the United States to dance and compete? Then your artificial hip failed, you needed revision surgery, and complications from the revision surgery forced you to retire from square dancing? That scenario sets up a very plausible argument for additional compensation, and it also sets up a loss of consortium claim for your spouse, as he just lost his dance partner.
• Explanted components. I wrote about retrieving the failed medical device from your revision surgery here, so you can read about that process by clicking the link, but it is vitally important that you send a letter to your hospital administrator and to your surgeon prior to the revision surgery so all medical staff are on alert to retain and preserve the explanted components. These components will certainly be needed as evidence as your case advances. And do not let the manufacturer’s sales representative, who may be in the room during your revision surgery, take away the explanted components “for further study.”
• Medical bills. Keep every one of them. From the surgeon, the hospital, receipts from the pharmacist, everything related to your hip surgeries.
• Expense journal. Keep careful track of all expenses: out-of-pocket expenses, co-pays, costs for prescriptions, mileage to and from the university hospital in the next town.
• Tax information. Did you miss two months of work in 2016 following your revision surgery? Did your 2016 W-2 show that you made $6,000.00 less than you made in 2014 and 2015? Make copies of your tax information going back to the time of your original implant surgery, and keep copies for every year through the year of your revision to the present day.
• Health insurance information. Gather all documentation related to any payments or services provided by your health insurance company. Most likely, the health insurer will expect to be reimbursed for payments it made on your behalf relating to a failed medical device or harmful prescription drug. You will eventually have to deal with that health care lien.

Not all of this information will be useful to your case. But in the early stages, you will not know what is useful and what is not (especially if you are working without a lawyer). So if you have any doubt about “relevance,” keep the document or the receipt or the letter. And keep all of the information carefully organized. If you have a receipt, paperclip an explanation (“second prescription for Percocet following my revision surgery”).

A Word of Caution

Let me be clear: I do not recommend representing yourself in a product liability case. There are simply too many things that you can overlook or that can go wrong. The best evidence that you should not represent yourself may be this: the medical device or drug manufacturer really wants you to represent yourself. Unrepresented parties often receive much smaller settlement amounts than do injured people who are represented by competent lawyers. It’s not that product liability lawyers are smarter than other people; it’s simply that a person who does this work day-in-day-out, month-after-month, for years will be more experienced in maneuvering through the dozens of steps it takes to prepare a good product liability case for (1) the best settlement or (2) trial.

But if you take on your product liability case yourself, you should start by building your case file, one document or record at a time. Good luck.

Note: This post is not legal advice. And I don’t have TV commercials.

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.

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.

Of all the bad drug results you read about, you would think proving legal causation in a Risperdal case would be straightforward: a boy with autism or psychological issues is prescribed Risperdal; after a period of months or years on the drug, he begins to grow female breasts, a condition known as gynecomastia. Boys should not grow female breasts. It is extremely rare for an adolescent boy not taking Risperdal to grow female breasts. And studies have shown that Risperdal can cause gynecomastia. Ergo (sorry, I’ve been wanting to get that word in a post), if a boy is taking Risperdal, and fifteen months later grows female breasts, it should follow that the Risperdal caused the gynecomastia. And that the manufacturers of the drug should pay for the physical injury, the emotional trauma, and any other suffering.

But it doesn’t always work that way. Two recent court cases involving boys injured after taking Risperdal yielded two very different results, and the takeaway is the importance of medical experts who can testify to the connection of the injury (gynecomastia) to the cause (taking Risperdal).

more1. Risperdal Case Ends in Settlement

On January 6, 2017, just days before trial was to start, Johnson & Johnson settled a case involving Zachary Sabol, a boy from New York who grew breasts after taking the anti-psychotic drug Risperdal. The Sabol family alleged that Zachary began taking the drug before it had been approved for use with children. In addition, the drug label at the time Zachary began using the drug stated that gynecomastia was rare and occurred in approximately 1 out of 1,000 patients taking Risperdal. Later, the label was changed to indicate gynecomastia could occur 2.3% of the time. (Doing the math, that is 23 times as often as the original label indicated).

The terms of the settlement, of course, are confidential. So we don’t know how much J&J paid to settle this case. But J&J paid. In three previous Risperdal cases, juries awarded $4.75 million in total damages for plaintiffs. And in a case tried last summer, a jury awarded a stunning $70 million dollar award to a boy and his family. You can read about that case here.

Drug manufacturers are always aware of what past juries have done, and it’s reasonable to believe J&J took these past jury awards into its calculation of a settlement offer.

2. Risperdal Trial Ends in Sudden Dismissal

Now back to causation. As I said, causation should be straightforward in most Risperdal cases, because (1) Risperdal is known to cause female breast growth, (2) as an injury, female breast growth is quite easy to observe and establish (as opposed to, say, health problems from metallosis in an artificial hip case), and (3) adolescent boys should not be growing female breasts.

It appears from news reports that the plaintiff’s legal team was stunned by the judge’s ruling, and did not believe there were any deficiencies in the expert’s medical opinion or testimony. Tommy Moroni’s lawyers will appeal the ruling. I suspect Tommy Moroni may get a second chance at trying his case. I hope so.

At the end of the day, there are simply no guarantees in a civil case. Five judges can see valid testimony on legal causation and the sixth judge can reject the same testimony. Still, gynecomastia is a hideous and disfiguring injury, and no boy should have to go through such trauma. More than 2,000 Risperdal cases are still pending in the multidistrict litigation in Philadelphia. And more cases are being filed each day. I hope no boy in your family has grown female breasts after taking Risperdal, but if this has happened, give me a call, or call a lawyer you know and trust.

First, let me make the case for smoking:

You enjoy it. It tastes good (I guess). It makes you alert (I hear); but also, oddly, it can calm you as well (from what I’ve read). You also look cool doing it (I confess; this last part is often true). And it’s legal. But perhaps the strongest argument I hear from smokers is this: no one is going to tell me I can’t smoke. This is a free country after all.

That’s about it, really. That’s all I’ve got. And I’m not here to nag you. By all means, smoke if you must. But let me present a different perspective: setting aside the many health problems smoking causes, it can also destroy or damage your product liability or personal injury case.

Smoking Can Make Proving Causation More Difficult

In many cases, the fact that you are a smoker may make it more difficult for you to prove your case. I recently investigated a potential case against a medical professional for injury to a patient. I had a medical expert review the case and give me his opinion. He said, “it looks like it could be an injury caused by negligence, but the patient was a heavy smoker, so she likely failed to heal properly after the injury because of all the smoking.” Translation: this person may have been injured through the negligence of the medical professional, but it would be very difficult to separate the actual injury from the failure to heal, and the heavy smoking probably contributed to the client’s failure to heal. So there it was. I may be able to prove that the medical professional injured my client, but even an average defense lawyer could make the case that it was the smoking that caused much of the the pain and suffering and slow recovery after the injury.

And that’s the thing: smoking injures people. It also prevents healing. Putting all that together, smoking can make it difficult or impossible to prove injury in a product liability or personal injury case.

Even if you prove your case, and you can show injury caused by the negligence and not caused by the smoking, you can lose thousands of dollars in settlement or through a jury verdict simply by being a smoker. In many product liability master settlement agreements, the fact that you smoked can reduce your total settlement award.

The Loss of Money Is Quantifiable

By quantifiable I mean you can actually calculate (often to the penny) the money you will lose just by being a smoker. In the Depuy ASR hip settlement agreement, the Part A base award for qualifying plaintiffs was reduced by 5% if the individual used tobacco products at the time of the revision surgery. The base award in the ASR settlement scheme was $250,000.00, which means the smoker lost $12,500.00 right out of the gate, simply by being a smoker.

But that’s not all: the ASR settlement also provided an opportunity for extra payments classified as “extraordinary injury.” If the plaintiff could show some extra injury, such as a second revision surgery (“re-revision”), or a condition such as foot drop or pulmonary embolism, that person qualified for additional compensation. Nevertheless, out of the gate these amounts were reduced if the plaintiff was a smoker:

“There will be an up to 10% reduction of the QUSC’s [plaintiff’s] applicable PART B Award if the QUSC (or Product User) was a current smoker of cigarettes or other tobacco products at the time of ASR Revision Surgery or Covered Post-ASR Re-Revision Surgery as reflected in the contemporaneous medical records (with the exact percentage to be determined by the SOC).”

For example, a re-revision surgery typically qualified for $150,000.00 in extra compensation under the Part B portion of the settlement agreement. But if the injured person were a smoker, she would lose 10% of that amount, or $15,000.00. Just like that, the Depuy ASR plaintiff in this example lost $27,500.00 simply because she was a smoker, and that’s presuming she did not qualify for other compensation under the settlement, which would have resulted in further reductions of the total settlement amount.

Other settlements reached in other product liability multidistrict litigation also include reductions in pay-outs if the plaintiff smoked. The thinking in all these reductions is simple: smoking causes all kinds of health problems, so it is logical to presume that the injuries relating to the failed product or prescription drug was at least made worse by smoking. It may not seem fair; it may not even be true, but it happens often.

The Takeaway

From what I hear, it is very difficult to quit smoking. And there are many better reasons to quit smoking than to preserve or strengthen your product liability or personal injury case. I just want you to be aware that smoking can make it more difficult to prove an injury case, and it can reduce your settlement offer in cases ranging from defective artificial hips to harmful medications to medical malpractice. If you can quit now, for all kinds of great reasons, quit.

In November 2013, the first Settlement was reached between the Plaintiffs’ Committee and the Defense Team for Depuy and J&J. I have written about this Settlement and its terms here. So six years after the Original Surgery, and four years after the first onset of pain, and two years after Revision Surgery, Bill finally had the opportunity to accept the settlement offer or reject the offer and pursue a jury trial on his specific case. After much deliberation, Bill rejected the settlement offer.

Three years have now passed

. Bill’s case is not on a trial calendar. In fact, as far as I am aware no case has yet been tried of any person who rejected the settlement offers. To make matters worse, this summer Judge Katz, in charge of the MDL, passed away. A new judge had to be appointed to take his place overseeing the MDL.

Bill is at his wit’s end. He told me he merely wants his day in court. He is now nine years removed from the Original Surgery, seven years removed from the onset of symptoms, five years from Revision Surgery, and over four years from filing suit. And still no trial date in sight.

Bill is not alone. Hundreds of people in the MDL rejected the settlement. And those people are waiting too.

So how long does it take to resolve your artificial hip case?

more All Civil Litigation Takes Time

I wish I had better news, but it takes a long time. Any civil litigation takes time. There are “rocket dockets” scattered across the country that work really hard to dispose of cases in a matter of months or a year, but those courts are the exception. Even a basic breach of contract action in your state’s court can take two years or longer to resolve.

A product liability case is a particularly complex type of civil litigation. It is very difficult to prove that a product was defectively designed, or that a manufacturer failed to warn patients and their doctors of the risks involved in using a product. Often competing experts will spend many hours and many dollars fighting over these technical issues. This is one reason MDL courts were formed in the first place. Multidistrict litigation sites are designated precisely to resolve of hundreds or thousands of cases more efficiently, not less efficiently.

Multidistrict Litigation Often Takes Years to Resolve

That said, there is just no other way to say it: a case that finds its way to a multidistrict litigation court will probably take several years to resolve. So settle in. The biggest reason is this: there is simply a lot to do. Both sides need to engage in general, “shared” discovery, where the plaintiffs will depose the defense experts and fact witnesses, and the defendants will depose the plaintiffs’ expert and fact witnesses. Aside from that, often hundreds of thousands of pages of medical records, expert reports, scientific studies, and business records must be reviewed and analyzed. Dozens of pretrial motions are filed, and all must be ruled on by the MDL judge. It simply takes months and years to get through this work. Meanwhile, Bill, and thousands of people just like him, wait.

The waiting game is not limited to artificial hips, but includes all kinds of medical devices and harmful drugs. The Mentor ObTape Transvaginal Mesh MDL was formed eight years ago and is still going strong in Georgia. The Depuy Pinnacle Hip MDL was formed almost six years ago, and bellwether cases have been tried this year, with no settlement agreement in place. There are multiple IVC Filter MDLs, as well as MDLs for the drugs Risperdal, and testosterone, and Xarelto, and Viagra.

Every Case a Snowflake

Still, every single case that has ever been filed in any court is unique. The facts in each case are different. The parties involved are different, and the lineup of lawyers and judges and juries are different. Occasionally a person may find her case transferred to an MDL the week before a global settlement is reached. If she accepts the terms of the settlement, she may actually resolve her case in a few months. Other individuals may not qualify for a settlement based on the timing of their Revision Surgery, and they will be forced to resolve their cases one at a time without the benefit of a settlement structure. And other people, like Bill, will choose trial, which can take more years of waiting to calendar, to try, and to overcome the inevitable appeals.

Is all this waiting and effort worth it? I would say absolutely. If you were injured by a company’s negligence, you deserve to be compensated. Even if it takes years.

Note: The narrative above does not refer to any specific person or case.

Clients occasionally ask my advice on how best to handle the new money that has come into their lives. Frankly, this is a happy conversation. But it’s also extremely important to get the answer right. The worst thing clients can do is spend down the money quickly and have nothing left a few years down the road when they still need money.

more Find Good Advisors

The first thing you should do is select a competent tax accountant to help you maneuver through the tax consequences of newly acquired settlement funds. While funds paid as damages for personal injury are not taxable, money damages for lost wages and punitive damages are taxable. You need a smart tax accountant to help you create the best plan to protect your assets. One suggestion your accountant may give you is to make sure you contribute the full amount to your employer’s 401(k) retirement plan in the years following your receipt of personal injury funds. Contributions to an IRA may also be wise. This will allow you to protect more of your income from taxation. You may also need an estate planning lawyer to assist with distributing your assets at the time of your death. You will likely need a will (or to update an existing will), and you may also need to set up a basic trust for protection of the assets for your heirs.

Plan Plan Plan

You will also need to create a financial plan. You should ask yourself all the tough questions: Can I continue working? How long will my spouse continue working? What other sources of income do I have? Other than the injuries from the failed medical device or drug, what other health issues do I have? Does my spouse have health issues? My children? (Every single health “issue” costs money.) What is the state of my health insurance? Is my house paid for? Our cars? Am I on-track to retire at a reasonable age?

Financial advisors urge their clients to create a plan, especially when a substantial amount of “sudden” money arrives. Once you create your financial plan, revisit it after one year. And then every year after that.

Make Only Required Payments at First

Do not rush out and purchase a $60,000 Mercedes. That is really the worst thing you can do. I know that’s not a sexy answer, but it’s the truth. Instead, you should make all required or overdue payments first. If you have medical bills outstanding, you need to pay them. Your attorney must assist you in getting all medical “liens” paid, but you may have other incidental medical bills to pay. If he hasn’t done it for you already, ask your lawyer to help you negotiate lower payments to satisfy existing medical bills.

Further, pay off high interest credit card or other consumer debt. Debt is awful. And high interest debt is the absolute worst. High interest consumer debt can easily deplete settlement or trial funds in a matter of a few years. If you have debt at the time of recovering money in a personal injury case, pay it off in full. You can try to negotiate with your credit card company for a payoff that is less than the full amount, but regardless you have to rid yourself of ruinous consumer debt.

Set Up an Emergency Fund

To start with, everyone should have an emergency fund (if possible). An emergency fund is a savings account set aside for emergencies like home or car repairs, or living expenses if you lose your job. You should strive to build up savings to cover necessary living expenses like your rent or mortgage, car payment, utility bills, and groceries for six months. In fact, an ideal emergency fund will cover your living expenses for a year. You should keep this money somewhere accessible like a savings account or money market account, and you should not invest the emergency funds in pork bellies or oil wells or your nephew’s dog grooming business. Once you have the fund established, leave it alone. You should work hard to ignore it. After all, it’s there for emergencies only.

Invest Wisely

If you invest your personal injury settlement funds, invest wisely. Above all, diversify. This means don’t put all your money in one investment. I would recommend paying a financial advisor (as opposed to having the advisor actively “manage” your money) to give you sensible advice on investing. A combination of mutual funds, stocks, bonds, and cash on hand is often wisest. If you have the extra money, you may consider using a small portion of your settlement funds to purchase an annuity, which is an insurance product which entitles you to annual payments at a later time, and these payments can reoccur for ten or twenty years or the rest of your life. Annuities work well only in limited situations, and they can certainly be a mistake, so be careful with this option. Annuities are useful only when made part of a larger, comprehensive investment plan.

Have a Little Fun

Again, don’t buy that Mercedes. But once you have a plan for utilizing the money in the best way and for the longest time, then try to set aside a small amount to do something fun. You have been paid because a large corporation was negligent in a way that physically hurt you or a family member. You clearly have suffered needlessly. It’s vital that you put the money to its best and most long-term use, but you also need to pump the brakes and do something that brings you joy. A vacation is a great choice, because after years of surgeries and rehabilitation and litigation, you and your spouse may simply need to sit under a palm tree and relax.

The Takeaway: A Good Problem to Have

Figuring out what to do with money you receive from a settlement or trial verdict is a good problem to have. But you should nevertheless treat it as a problem to be solved. Wasting assets like this can become an injury similar to the original injury. Don’t let this happen. Be smart and careful with settlement funds, so the money can work for you for many years.

Note: I am a product liability lawyer, not an accountant, estate planning lawyer, or financial advisor. You will need to find these professionals to sort through all the questions you will have after you receive personal injury funds.

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.

So let’s get it out of the way: everything in life costs money. A personal injury lawsuit is no different. It is expensive to bring a lawsuit, and it is extremely expensive to litigate a case through trial. Most times, an injury suit settles before trial, but even then there are costs that will have to be paid out of your negotiated settlement amount. Best to be educated about these costs up front and be prepared for them when your settlement approaches.

more

Litigation Expenses

Think “hard costs” or “out of pocket” costs. These are the costs incurred in bringing the lawsuit in the first place. First, there are “filing fees” in every state and federal court in the country. In North Carolina, the cost of filing a lawsuit in federal court is $400.00. After that, there will be additional fees to have the lawsuit “served” on the adverse parties (the people and companies you sued). There will expenses for postage (FedEx overnight deliveries, certified mail deliveries, even simple stamps), and photocopies. Beyond that, your attorney will have ordered and prepaid for copies of all medical records in your case, which will include X-ray films or CT scans or MRI results. No doctor’s office I have ever encountered hands over these medical records and films for free. So the attorney will usually advance the funds to pay for these records (unless your retainer agreement requires that you pay out-of-pocket costs as you go). But once there is a settlement, these hard costs must be repaid. It is a good idea for you to know the amount of the hard costs—even month to month—as you go along, so you can make an educate decision when an offer of settlement is made.

Medical Bills and Liens

Most personal injury cases have lingering unpaid medical bills and medical liens. A typical revision surgery in an artificial hip case can cost $50,000.00 (sometimes more) when the surgeon’s fee and the hospital fee and the physical therapy costs and other expenses are calculated. Your attorney must pay these medical bills from the settlement funds before he or she can disburse the net settlement proceeds to you. Usually a hospital and other medical providers will submit a medical “lien” directly to your attorney putting him or her on notice of the unpaid bill. At the point, the attorney has an affirmative duty to pay this lien. Often the attorney can negotiate a reduced amount of the medical bills as settlement negotiations occur.

Health Insurance Subrogation

This one stings. Your medical care was likely covered in part by your health insurance. If you receive payment for injuries from the manufacturer of a defective medical device or drug, your health insurance provider will likely seek “subrogation” for the medical care it paid on your behalf. So if, say, Blue Cross paid a total of $20,000.00 for your revision surgery, and you are then paid a settlement for a defective medical device, Blue Cross will want reimbursement (subrogation) for its payments made on your behalf.

This line-item stings because you have paid health insurance premiums for years to provide medical care when you are injured, and then the moment you receive compensation for an injury caused by someone else, the health insurance company wants to be repaid for the medical care it paid on your behalf. It doesn’t sit well with me, but health insurance companies have good lobbyists working for them.

Litigation Loans

If you received a litigation loan, which I wrote about here, you must repay that to the loan provider, with the interest specified in the litigation loan contract.

Attorney’s Fees

Virtually all injury cases operate under a contingency fee arrangement. This means that the attorney will be paid a percentage of any financial recovery (either from settlement or verdict) at the conclusion of the case. It is called “contingency” because the legal fee is contingent on a successful outcome. If the case is lost, the attorney receives no legal fees. Typically the legal fee in an injury case is one-third of the gross amount of the settlement, but it can be as high as 40%, particularly if multiple law firms are involved (which is not uncommon in complex injury cases), or even higher if liability in the case is uncertain and other “problems” in the case exist. So if you have hired an attorney under a typical contingency fee contract with a one-third contingency payment, and you then settle the case for $150,000.00, the legal fee will be $50,000.00.

Quick note on legal fees. I can’t speak for other attorneys, but I am always willing to represent any individual in an injury case pursuant to an hourly fee arrangement. If at the beginning of the representation a client requests to pay legal fees under an hourly-fee arrangement, I will always agree. This would mean that the client will pay me by the hour for my legal work, and therefore at the end of the case the client will be able to keep the entire settlement amount (after hard costs and medical bills and other expenses are paid). The hourly fee is the legal fee arrangement most often used in civil litigation cases (e.g., like breach of contract cases).

I realize these costs and fees may seem overwhelming, not unlike the myriad charges for a single hotel room in Charleston. But it is critical for you to be aware of these costs in advance when negotiating your settlement so you can make an informed decision. Good luck.

Note: I represent individuals injured by defective medical devices and drugs in the Carolinas and throughout the country. If you have specific questions, call me: (919) 830-5602.

This is usually one of the first questions I get from people injured by a failed medical device. Typically a failed device like a hip or knee causes all kinds of health problems for a person. Often a revision surgery is necessary, and sometimes several surgeries. All this extra medical care is expensive. It also requires large amounts of time to rehabilitate and recover, which causes substantial time away from work. Some of my clients lose their jobs, or are forced to quit because they can no longer do the work. Meanwhile, the bills from surgeons and hospitals continue to pile up.

Medical Providers Expect Payment

First, no matter who is at fault for your failed medical device or harmful drug, the doctors and hospitals who provide you treatment will expect prompt payment of their bills. After surgeries, these bills often come fast and furiously. If you have health insurance you will need to arrange with the physician and/or the hospital ahead of time to file a claim for payment. But even if you have health insurance you will most likely be responsible for payment of a significant portion of the costs of your medical care (through co-pays, deductibles, and/or percentages of the medical bill not covered by health insurance). The surgeon or hospital will expect you to pay these amounts promptly.

So what can you do?

more Postponing Collections

Usually a medical provider will freeze or postpone collections on an unpaid bill when it is made aware of the existence of a third-party lawsuit. That is to say, if the hospital is informed that the patient has filed suit against a medical device manufacturer, it will usually agree to forego collections until the lawsuit is resolved. Your attorney needs to get involved quickly in this process and inform all providers in writing of the legal representation, the lawsuit, and the expectation that collections should stop until the litigation is resolved. Get confirmation in writing. Most likely the provider will issue a “lien” against any money you obtain in your lawsuit, which means the doctor or hospital will expect to be paid when the settlement is reached. Once a lien is issued, your attorney will be required to resolve that debt when a settlement is reached.

Payment Plan May Be Necessary

If for some reason the medical provider refuses to stop collections, you will need to work out a repayment plan. I get it: easier said than done when you are recovering from multiple hip surgeries and can’t return to work. But often a hospital will usually accept modest monthly payments so long as you make them each month. The provider wants to see that you will abide by the arrangement, even if the monthly payment is small.

Paying Medical Bills After You Settle Your Case

Typically in a product liability case you will resolve your lawsuit through a settlement, which is of course a negotiated “deal” that is struck between you and the manufacturer (and any other defendants). Very few medical device cases find their way to a jury. Once you reach settlement, the medical bills that you have not paid up to now will have to be paid. Doctors and hospitals do not forget. These medical providers have dedicated offices and staff to chase these payments to the ends of the Earth. So once you sign the Settlement Agreement, your attorney will have to arrange payment of these medical bills or medical “liens” promptly.

Some Settlements Include Payment of Medical Liens

In certain settlements, the defendant manufacturer will agree to pay outstanding medical liens for you. It goes something like this: after years of litigation, and after many months of negotiation, the plaintiffs and defendants in a large multidistrict litigation will come to an agreement to resolve hundreds or even thousands of cases. This will usually involve a settlement framework where the defendant company will pay certain amounts of money directly to each plaintiff who qualifies, and further, will pay the liens outstanding for these qualifying individuals. This is roughly how the Depuy ASR Settlement was constructed.

It is a great thing when the defendants agree to pay off medical liens separate from the amount you as the injured person receive in the settlement; unpaid medical bills can be substantial, and paying them off with your own settlement money can take a huge chunk out of the amount you ultimately get to take home. After all, you are the one who has suffered—physically, emotionally, financially. Each dollar that you do not have to pay out of the settlement proceeds for medical bills is a dollar that you can use to pay off credit card balances, to pay down a mortgage, to cover other bills, or simply to save.

If the agreement does not include the defendant paying off the medical liens, you will have to pay these bills yourself. Your attorney should assist you in negotiating with the hospitals and doctors’ offices, and usually these medical providers will agree to accept a smaller amount in payment of their liens, but not always. It is always best practice to have these discussions before you agree to a settlement.

The Takeaway

It is important to think about these medical bills, and who will ultimately pay these bills, when deciding whether to accept a proposed settlement agreement. Make sure you find an attorney who is aware of these issues and will walk you through the complex math before you make a final decision.

In a later post I will discuss litigation expenses related to bringing a product liability lawsuit.

Note: This is not legal advice. I do not refer to any specific case or client in this article. You can always call me if you have specific questions of your own: (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.