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.