On Friday, February 20, 2015, DePuy/ Johnson & Johnson agreed to pay approximately $420 million more to resolve approximately 1400 additional DePuy ASR lawsuits. The order came from the Court extending the settlement offer to Plaintiffs who had revision surgery after August 31, 2013 up through January 31, 2015.
From the beginning of this litigation, almost five years ago, our goal at Childers, Schlueter & Smith has been to prosecute cases aggressively until DePuy accepted responsibility for its actions and offered to settle viable cases, or until viable cases were tried before a jury. While we are pleased that DePuy has proposed a second round of settlements now for certain plaintiffs.
There are a number of very important issues we want all ASR patients to be aware of given this recent proposal:
1) This is not a blanket, one-size-fits-all settlement proposal. DePuy’s proposal set outs specific terms which determine the individual settlement amounts for each person’s case (see below). As we have always maintained, all ASR cases are different. Because of the differences in each case, the proposed settlement amounts for all claimants will be different.
2) The settlement proposal is just that – a proposal – which you are not required to accept. Individual claimants in any case can accept or reject any settlement offer. At CSS, we evaluate each case and determine, as precisely as possible, the amount of compensation you would likely receive under the proposed settlement and whether it makes sense to continue under the program. For most it does, for a few select others it may not.
DePuy is offering the proposed settlement to citizens and residents of the United State who: 1) had an ASR hip implanted in the U.S.: and 2) whose ASR hip was revised between August 31, 2013 and January 31, 2015. DePuy is only making the settlement proposal to patients who received an ASR hip. The proposal does not cover any other hip implant device manufactured by DePuy.
DePuy’s settlement proposal lists a number of factors which will determine the value of a settlement offer, such as whether you suffered a loss of income, whether you required another surgery after the revision of the ASR hip, your age, smoking history, and/or obesity. As noted above, we are in the process of determining how these factors apply to our client’s cases right now and can do the same on new cases if you act fast.
Payment of Liens
If you choose to accept DePuy’s proposed settlement, they have also agreed to pay any liens that may be asserted by your medical providers or health insurance companies. Liens are monies owed to repay your insurance company for the funds they paid relating to your ASR hip implant, or monies still owed to your medical providers for services they provided that relate to your ASR hip implant. Ordinarily, such liens would be paid by you out of the settlement proceeds you receive. In light of the fact that you have had revision surgery, the liens associated with your case could be significant. We believe DePuy’s agreement to pay your liens is a benefit to anyone who chooses to accept DePuy’s proposed settlement.
The Broadspire benefits that have been provided so far have been of great benefit to most of our ASR clients that are uninsured. These benefits have been limited. In anticipation of the program potentially stopping, we urge you to provide us with documentation of all out of pocket expenses and lost wages that you have not already provided us, so we can submit them to Broadspire for processing if they were incurred prior to January 31, 2015.
What is the timeframe to decide to accept or reject DePuy’s proposed settlement?
To be eligible, you must register your case with DePuy by the stated deadline. Following that registration period, there will be a final enrollment date for all eligible claims where all the applicable medical records and settlement materials have to be properly submitted. We are currently waiting on the announcement of the enrollment deadline date. Once we have that date and the documents are made available, we will prepare settlement packets for our clients review and signature. We also have the capacity to do this on any new claims submitted to our office in the very near future.
DePuy’s walk away option
DePuy will have a walk away option. The percentage of enrollment is still to be announced. If enrollment is less than the target percentage, DePuy can choose to walk away and not pay you any settlement at this time. DePuy can also choose, however, to continue with the settlement if less than the target percentage of people accept it, but they do not have to do so. If less than target percentage of the eligible people agrees to the proposed settlement, DePuy must decide whether to continue with or withdraw the proposal by a date that will be published shortly.
Our next steps
As noted above, the law firm of Childers, Schlueter & Smith continues to investigate and take on new DePuy ASR clients that need assistance with their potential claims. We are evaluating all cases under the terms of the proposed settlement, and we will take all steps needed to ensure your rights are protected. As time is limited, you must act now if you want to put our firm’s experience to work for you. As always, if you have any questions, please can contact our office for more information on the Round 2 DePuy ASR Hip Implant Settlement. All calls are confidential and all initial consultations are free of charge.
A partner with Childers, Schlueter & Smith, LLC, Richard Schlueter has spent his career representing individuals and families who have been harmed as the result of wrongful conduct by others. Recently, Richard was selected for inclusion into the Nation’s Top 1 percent of lawyers by the National Association of Distinguished Counsel (NADC).