Metal Hip Implant Lawsuit Settlements

How Much and When?

Thousands of metal hip implant patients are suffering and undergoing painful revision surgeries as a result of the irresponsible marketing of these poorly designed and manufactured products. So far, the companies that promoted and profited from the sale of these metal hips have refused to offer any fair compensation to those that have been injured.

The metal on metal hip implants are failing at an unacceptably high rate. The manufacturers told doctors that these hips would last more than twenty years and perhaps for a patient’s lifetime. Many of these metal implants now have to be replaced through complicated surgery after only a few years. The marketing claims that the manufacturers made were not based upon any science or clinical studies they were just sales puffery. The greedy hip implant manufacturers put their own profits ahead of the safety of their customers and sold these implants without adequate testing or study. The companies used the public as their test guinea pigs and it is now evident that these metal hip implants are defective and inferior products.

All Metal Hip Implants are Bad Products

All of the metal on metal hip implant products, no matter which manufacturer, are inferior to the polyethylene and ceramic hip implants that have been on the market for years. Some metal implants have higher failure rates than others but they are all too high. The failures are caused by chromium and cobalt ions leaching from the metal on metal interface of the metal acetabular cup and the metal ball on the femur and damaging the tissue in the hip compartment.

Orthopedic Surgeons Now Reject the Use of Metal Hips

Over the last two years the community of orthopedic surgeons and the AAOS, the American Association of Orthopedic Surgeons, have concluded that the implant of any metal on metal hip is a bad idea. The only exception to this is that the Smith & Nephew Birmingham metal resurfacing device may be appropriate in some large male patients.

Only the DePuy ASR and the Smith & Nephew R3 have been officially recalled. However, the high failure rates are showing up across all metal on metal product lines. Metal on metal hip implants include the DePuy Pinnacle Ultimet, the Wright Profemur Converse and Dynasty, the Zimmer Durom Cup and Trilogy, the Biomet Magnum M2 and the Biomet M2-38, and the Encore.

Manufacturers Have Refused to Settle Lawsuits

Thousands of lawsuits have been filed across the United States and thousands of claims have been made around the world by patients who had these hips implanted over the past ten years when the hips were aggressively advertised and marketed. None of the manufacturers have made any effort to provide fair compensation or settlements to patients suffering from metallosis from these hip implants. Interestingly, Zimmer has had a campaign for several years now to settle Zimmer Durom Cup lawsuits for a different design defect that caused some of the Zimmer cups to come loose and fail.

The wave of lawsuits started in 2010 after the public recall of the DePuy ASR implants. The DePuy ASR has the worst failure rate of any of the metal implants. DePuy Pinnacle, Biomet, Wright, and Smith & Nephew metal hip failure rates are slightly better than the DePuy ASR but still are unacceptably high compared to polyethylene and ceramic implants.

Hip implant product liability lawsuits are complicated scientific cases that take several years to fully prepare for trial. So it is expected that the first jury trials will take place in 2013. It is likely that there will be an increasing number of jury trials in 2013 unless massive settlements take place.

How are Lawsuit Settlement Amounts Determined?

If these jury trials do take place they will set ranges for monetary amounts that influence settlement decisions. A settlement decision in a lawsuit is almost always based to some degree on each sides’ estimate of what a jury might do if the case went to trial. The current deadlock on settlements is due to some degree on the corporate defendants believing that jury verdicts will be low and the injured peoples’ attorneys believing that the verdicts will be much higher.

If juries return multimillion dollar verdicts then the settlement values of the cases will certainly be higher than if the juries come back with defense verdicts that the companies are not responsible for the hip implant failures or if the verdicts are for small amounts. Usually settlement figures for lawsuits are lower than the best verdicts by juries and higher than the lowest jury verdicts. Settlements are in essence a compromise of the predictions of the plaintiff and defense lawyers about what a jury might do. Jury trials are very expensive for both sides and that influences both sides to compromise to avoid the expenses and risks of trial.

A trial verdict is usually not the end of a case. Whichever side loses a jury trial has a right to appeal and ask for a new trial or a reduction or an increase in the verdict. Some lawsuits are tried more than one time and many are settled during the appeal process in some type of compromise of the jury verdict.

Another factor that may influence settlement decisions are the amounts of past settlements. There have been no settlements of any metal on metal implant cases with any degree of the details about the few cases that have been settled. However, there was a significant class action settlement involving a recall of the Sulzer hip implants about a decade ago. The Sulzer class actions settlement included values of about $240,000 for each failed hip that required a revision with supplements up to $400,500 for cases with extraordinary complications or high monetary losses.

There were three reported DePuy ASR cases settled before trial in late 2012 in Nevada for a total of $600,000 but the details are confidential. We don’t know if the three cases were settled for $200,000 each or $500,000 for one and $50,000 for the other two or some other amounts so those settlements don’t give us much data to predict other settlements.

It is my opinion as an experience trial and medical device and pharmaceutical attorney that few plaintiff attorneys nationwide would recommend a settlement of a revised DePuy ASR case for less than $300,000-$500,000. The ultimate decision of settlement is up to the client and I know some of my clients have been waiting for years for a reasonable settlement offer and are in such financial circumstances due to complications from their bad hip that they would settle for less than those amounts. Cases in which there were complications from the revision such as infection, re-revisions, blood clots, strokes, or death would warrant larger settlement amounts.

Further, in my opinion, no amount of money is fair for what these companies have done to people by marketing these defective hip implants. However, legal settlement evaluation is an assessment of what a jury might do with a case not an assessment of what is fair.

Juries are allowed to consider amounts of past and future medical expenses, lost wages or income, and pain, suffering, and loss of enjoyment of life to calculate a monetary verdict figure. Some states allow punitive damages to punish a corporate wrongdoing that showed a conscious disregard for the safety of patients or were reckless as opposed to merely being negligent or careless.

The conduct of the companies in selling these metal hips without testing them and putting their own profits ahead of safety should qualify for punitive damages to punish them. However, in practice punitive damages are rarely collected because of a feeling among judges and politicians that they are unfair to business. In cases where jurors award punitive damages judges frequently reduce or take them away completely. I don’t agree with this but it is a fact in the legal system.

When will the Lawsuits Likely be Settled?

I expect that the scheduling of the jury trials in the DePuy ASR cases will result in some movement towards settlement of those cases in 2013. I think it will be another year or two before there is settlement activity or a number of trial settings in the DePuy Pinnacle cases. The Pinnacle has not been recalled and DePuy appears to still believe that this is a good product. I think it may be several years before there is significant settlement activity in the Biomet or Wright Medical cases because those are a year or two behind the DePuy cases in the litigation process.

In my opinion, these metal hip manufacturers should all be making fair settlement offers to the injured consumers to assist them in getting their lives back on track and compensate them for their suffering and financial losses. Unfortunately, these corporations are continuing to put their own profits ahead of justice for the thousands of people they have injured with by the marketing of these bad products.

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Rather than do what’s right and settle the lawsuits filed against the company in relation to its DePuy Hip Implant Products. Johnson and Johnson has instead chosen to prolong litigation in the matter. As a result, what would have been the first DePuy hip case to head to trial has instead ended with a dismissal.
The dismissal order was entered on January 8th 2013 and was signed by Prince George County (Md.) Circuit Court Judge Crystal Dixon Mittelstaedt, who was to preside over claims
DePuy continues to litigate these cases in court and refuses to fairly compensation hip implant patients who have suffered. DePuy is still putting their own corporate profits ahead of compensating the ASR implant patients who have now been waiting for two and a half years since the recall for justice. The Company should have settled this case rather than prolonging the litigation process.

First Jury Trials Set in DePuy ASR Hip Implant Lawsuits
The first trials in the ASR hip implant multidistrict litigation will take place in May and July of 2013. These trial settings should push settlement negotiations for the other six thousand cases that have been filed against DePuy Orthopeadics and Johnson & Johnson for the failed ASR hip implant design. This product was recalled in the summer of 2010 and the companies have refused to make settlement offers to the thousands of suffering hip implant patients who have filed lawsuits.
The Order setting these trials was signed Friday December 28, 2012 by United States District Court Judge David Katz in Toledo, Ohio. Judge Katz is has scheduled the next case management hearing to take place in January in Palm Beach, Florida.
It is expected that many more lawsuits will be filed against J & J and DePuy Orthopaedics as the ASR implants are continuing to fail at an extraordinary rate. The ASR is a metal on metal implant that has the worst failure rate of any metal on metal hip implant. The metal on metal design for hip implants has been almost totally discredited for use in any patients because they are all showing high failure rates due to metallosis. Metallosis is a metal poisoning of the tissues in the hip from metal ions that are leaching from the metal on metal articulation of the hip implants.
Other metal on metal implants that are failing and which are the subject of lawsuits are the Biomet Magnum, The DePuy Pinnacle Ultimet, the Wright Converse, the Sith & Nephew R3, and the Zimmer Durom Cup. So far there have been no jury trials in any of the metal on metal hip implant lawsuits.
These first DePuy ASR lawsuit trials should measure a jury response to the conduct of these companies and the lawsuits against them. If the verdicts are high that will likely influence the settlement value of other cases. The reverse is also true: if the verdicts find no liability or are for low money damages then that will likely be reflected in settlement offers in other lawsuits.
All of the companies that made these metal on metal hip implants competed against each other to rush these defective and dangerous products to market. I expect that when juries hear how these companies put their own corporate profits ahead of people’s safety they will award substantial damages to those who have suffered failure of their hip implants.

Attorney Joseph H. Saunders of Saunders & Walker P.A. has been appointed to the plaintiff steering committee in Biomet Magnum Hip Implant Products Liability Litigation.
Attorney Saunders has previously been appointed to the steering committee on various nationwide cases and looks forward to working on behalf of the plaintiffs in this case.
If you or a loved one has suffered from a failed Biomet hip implant or have questions about other hip implant devices or products, please feel free to contact us for a free case review.
Saunders & walker P.A.
Consumer Justice Attorneys At Law
http://www.saunderslawyers.com/

Momentum Builds for Justice for Survivors of Childhood Sex Abuse
Today’s criminal indictment of former Penn State University President Graham Spanier for perjury, endangering the welfare of children, conspiracy, obstruction of justice and failure to report suspected child abuse add to a number of current developments moving the child abuse justice movement forward. The continuing prosecution by the Pennsylvania Attorney General in the Sandusky case shows a commitment by law enforcement to fully explore all the University officials who put football and the money that football could bring to the University ahead of the safety of children. Like the Catholic Church and the Boy Scouts, Penn State University attempted to avoid adverse publicity and chose to protect a child molester rather than to protect children.
The recent release of the Boy Scouts “perversion files” is another positive step in uncovering the horrors of child abuse. The officials at the Boy Scouts of America had kept files labeled “ineligible volunteers” files but informally referred to as the perversion files in an effort to weed pedophiles out of the boy scouts. However, they chose not to call police or notify parents. This failure allowed scout leaders who were child molesters to avoid punishment and in some cases to get back in leadership roles in the boy scouts under slightly changed names. This also allowed child molesters to find other places to abuse children rather than going to jail where they belonged.
Civil lawsuits brought by courageous survivors have uncovered much of the evidence in the Boy Scout cases and the Catholic Church cases that have revealed the huge scope of child abuse in the United States. Most children who are sexually abused by an authority figure such as a priest, scout leader, or coach are in mortal fear of disclosing the abuse that they endured. The survivors of abuse fear that they would not be believed, that they would be punished, or in the case of the Catholic Church that they would go to hell if they told anyone about the abuse.
Usually, it is many years after the abuse that the survivor of the abuse gains the courage and the knowledge to come forward and speak about what happened. This disclosure of the abuse and the abuser is important for the healing of the survivor and also to protect other children from the abuser. Unfortunately, the laws of all of the states in the United States have what are called Statutes of Limitations that the abusers and the institutions that covered up the abuse can use to have the lawsuits dismissed. The statutes of limitations vary from state to state but they all require that lawsuits be filed within a very few years after the abuse or the lawsuit will be dismissed as untimely. These statutes of limitations are very unfair to survivors of childhood sexual abuse. Recently, there has been a movement in some states to change or eliminate these unfair statutes of limitations. Some of these proposed changes to the statutes of limitation contain a “window” which allows old cases, no matter how old to be brought within a year of two of the legislation passing.
California was the first state to pass window legislation. That window was open for two years but is now closed. Hawaii recently passed a window that is still open for childhood sex abuse cases that took place in Hawaii.
Currently, there is legislation pending in Massachusetts, New York, New Jersey, and Pennsylvania that will open the doors to the courthouses in those states for justice for survivors of childhood sexual abuse if the new laws pass the legislatures and are signed by the Governors of those states. There are many lobbyists for the Catholic Church and the insurance industry attempting to stop these window bills.
It is my hope that the momentum that is building across the country for justice for children will be enough to help pass these legislative window bills to allow for full civil investigations and accountability into the institutions that harbored and protected child molesters.

Rev. Loren O’Dea, 83 was ordained a priest for the Archdiocese of Detroit in 1993 and retired in 1997 when he was only 68 years old. His early retirement may be significant given that O’Dea was ordained only four years prior and 68 is not the normal retirement age in the Archdiocese of Detroit. Perhaps more important, O’Dea had studied for the priesthood when he was much younger but became a social worker instead. The sexual abuse allegations stem from the period before his ordination to the priesthood.
As a priest abuse lawyer for many years, it seems these set of circumstances warrant further investigation into what the Archdiocese knew about this priest and when they knew it. If, for instance, they had knowledge of inappropriate behavior why was he allowed to serve and pose a danger to the children of the parishes he served?
This is not a decades-old case (which the Church always mentions when they are faced with such allegations). It demonstrates, at least until the Archdiocese answers some fundamental questions, a mode of operation that they had supposedly forsaken after learning about the devastating effects of sexual abuse on children.

It is indeed a myth but perhaps more importantly it’s a tragedy. The transvaginal mesh products that have seriously impacted the lives of thousands of women were marketed as safe and effective solutions to pelvic organ prolapse and urinary incontinence. Vaginal mesh lawsuits and the lived experience of thousands of women show this to be a lie.
The manufacturers of these failed vaginal meshes, including Ethicon, Gynecare, Johnson & Johnson, American Medical Systems Inc., C.R. Bard Inc., Boston Scientific Corporation, Covidien, Inc., aggressively marketed their medical devices as solutions to medical issues when in fact, they didn’t have the scientific and medical research to support such claims. The women who’ve had these vaginal meshes inserted have had to endure the agony of numerous corrective surgeries, IV therapy, blood transfusions and drainage of hematomas or abscesses.
The lives of ordinary women are being permanently altered because of an overly aggressive marketing campaign designed to boost profits rather than safety. That’s the real tragedy here.

An initial study performed by the United Kingdom National Joint Registry has determined no initial link between metal-on-metal hip failures and cancer. The studies were performed after some health experts expressed concern that the shedding of metal particles such as cobalt and chromium from the all metal hip replacement devices might lead to higher incidences of cancer. Thus far, the study shows no such occurrence. Of course, the study is limited to the United Kingdom that has a national database tracking mechanism in place that allows health officials to monitor and track such implanted medical devices. The United States is one of the few developed countries in the world that has no such registry. Obviously, this places safety officials and hip replacement patients at a decided disadvantage.
Last year, the US FDA ordered all manufacturers of metal-on-metal hip implants to conduct follow-up studies on implant recipients and report their findings to the FDA. The companies include Stryker, Johnson & Johnson, Biomet, Zimmer, Smith & Nephew, and Wright Medical. Some of these companies have already faced civil hip lawsuits for their faulty hip devices such as the J&J ASR hip and the Pinnacle hip models.

Already criminally convicted of failing to report suspect child abuse, Bishop Robert Finn is facing mounting pressure from advocacy groups, Catholics, and perhaps a few of his fellow bishops, to step down from his post as leader of Catholics in the Diocese of Kansas City-St. Joseph.
Last week, we filed a civil lawsuit against Bishop Finn concerning one of his now-deceased priests Fr. Jerry Wegenek. Wegenek abused our client in the 1960’s and has had other allegations of sexual abuse lodged against him. While the Diocese responded to our sexual abuse lawsuit by stating that Wegenek had been removed from active ministry in 1994 after another allegation of sexual abuse was made against him. However, the Diocese did not make Wegenek’s name public or inform local parishioners that Wegenek had been accused of the sexual abuse of a minor.

Daniel Drinan, a 63-year-old Southwest Airlines passenger on a flight from Washington to Denver has been arrested and charged with obscene and indecent exposure committed on an airplane. The arrest occurred on September 8, 2012 and media that reported the incident didn’t mention that Drinan is a Catholic priest in the Diocese of Austin. Although he doesn’t currently have a parish assignment, he is on the diocesan payroll. Given the outrageous nature of his pubic acts, it would come as no surprise if Drinan has done similar things in the past.
If Drinan doesn’t have an assignment as a priest because of past issues, the public has a right to know. Drinan is currently residing in Reno Nevada even though he is a priest of the Diocese of Austin. Living so far from his home diocese, Drinan would be under very little if any supervision. If he has a history of such behavior, people have been hurt and Drinan may indeed be a menace to society. It’s time the Bishop of Austin set the record straight.