As a defective medical device lawyer, I was interested to see reports that a medical device maker is considering making a very high settlement offer to thousands of Americans involved in lawsuits. Bloomberg News reported Aug. 21 that Johnson & Johnson has discussed paying more than $3 billion in total to settle up to 11,500 lawsuits over its metal hip implants. The amount is 50 percent larger than prior numbers the company has floated for this litigation, and substantially larger than a 2001 settlement over defective Sulzer hip implants, which was then considered the largest such settlement. The number is unlikely to be officialized, however, until the company begins hearing about outcomes in the seven defective knee implant trials scheduled for between September and January.
The liability stems from two related hip implant models, called the ASR XL Acetabular System and the ASR Hip Resurfacing System. They were recalled after studies showed unreasonably large numbers of the implants failed within five years. This was attributed to the cobalt and chromium alloy used in the implants. Attorneys for plaintiffs argue that Johnson & Johnson’s DePuy division didn’t adequately test the implants, then hid the testimony of doctors who cited large numbers of failures. For some patients, this meant two surgeries within five years, a particularly daunting prospect for the elderly people who are the main audience for hip implants. In more serious cases, Bloomberg reported, patients had dual hip surgeries or infections requiring long stays in the hospital. This would likely increase their settlements if they settle.
The $3 billion figure represents a likely aggregate cost of settling 11,500 pending lawsuits in the U.S. at more than $300,000 per lawsuit, the article said. An exact amount would likely vary according to the facts of the case, and each plaintiff is free to refuse to settle even if Johnson & Johnson decides to make the offer. It hopes to resolve the issue by early next year, the article said, but first wants to continue watching the first few trials of people who claim they were injured. The first two included a victory for each side; the plaintiff who won recovered $8.3 million. The next, scheduled for trial Sept. 9, involves a Rochester, N.Y. woman who needed two replacement surgeries. About 8,000 cases are consolidated with a Rochester federal judge; another roughly 2,000 are consolidated in California state court, and a few more are pending in courts around the country.
As a pharmaceutical liability attorney, I’m pleased to see that Johnson & Johnson is prepared to compensate patients seriously for the very real injuries they suffered. According to the article, the company was previously ready to set aside $2 billion, but plaintiffs’ lawyers rejected that as inadequate. It’s easy to see why: if $3 billion comes out to $300,000 each, $2 billion was probably not adequate compensation for the patients’ injuries. Each patient went through an initial surgery that was supposed to solve the problem, only to discover that it wasn’t solved and another expensive, immobilizing and painful surgery would be necessary. The medical bills for a prolonged hospital stay can easily hit five or six figures, making a $300,000 settlement—including pain, lost quality of life and other damages—quite reasonable in my opinion as a dangerous medical device lawyer.
If you suffered serious injuries or lost a family member because of a medical device that didn’t work right, you should call Carey, Danis & Lowe to discuss your rights and your legal options. You can call toll-free at 1-877-678-3400 or send us an email anytime.
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