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In August Bloomberg news reported that Johnson & Johnson was reportedly considering a $3 billion settlement regarding more than 11,000 DePuy ASR hip lawsuits. Bloomberg went on to report that the settlement offer would depend on the outcome of a series of ASR trials that were to take place this Fall.
Since that initial report, events have unfolded that lead me to believe that Johnson & Johnson is strongly considering a settlement.
The first trial in the federal consolidation was scheduled to begin on Sept. 24 in Cleveland, Ohio. U.S. District judge David Katz granted a 90 day delay to allow more time for pre-trial processes and scheduling for expert witnesses. In my experience Federal Judges are reluctant to grant delays over witness scheduling conflicts. The more likely reason is that a realistic settlement offer from Johnson & Johnson is on the horizon and more time is needed for negotiations.
In California on October 1, Johnson & Johnson settled with a plaintiff for an undisclosed sum. This settlement happened before the start of 2000 cases that were consolidated and to be heard before Judge Richard Kramer in San Francisco.
On October 8, another ASR suit was deemed resolved by the Bergen County District Dourt in New Jersey and removed from the trial calendar
In Las Vegas last year three DePuy ASR cases were settled before verdict
Only two ASR cases have gone to trial. In the first trial Johnson & Johnson lost an $8.3 million verdict. A California jury awarded damages to a Montana prison guard and ruled that J&J’s DePuy Orthopedics division designed of the device was defective.
Six weeks later a Chicago jury ruled for DePuy and rejected a defective design claim by an Illinois nurse.
It was though that the win in Chicago would help prolong DePuy’s strategy of proceeding on a case-by-case basis in an effort to avoid any type of settlement. But since the Chicago trial DePuy has quietly settled a handful of cases and had a major trial delayed.
I think that the DePuy is leveraging the Chicago verdict in a few individual settlements, while at the same time trying to negotiate a larger class action settlement. Any further rulings against them would weaken their negotiating platform so it is their best interest to delay any trials before a settlement can be reached.
The ASR is part of the largest medical device failure in history, and Johnson & Johnson needs to be held accountable and take responsibility for the pain and the suffering they have caused. The time has come for them to settle this horrible tragedy and help the people they have harmed.