What You Need To Know About Settlements In Defective Hip Cases
With thousands of hip cases pending throughout the United States, many of our clients have asked us how these cases are likely to be resolved. Although hip manufacturers have yet to make any meaningful settlement offers in these cases, understanding how the settlement process is likely to work down the road could greatly increase your potential recovery.
First, it is important to understand the procedural frame work under which settlements are likely to take place. Presently, there are more than 10,000 lawsuits pending against various hip manufacturers, including DePuy, Stryker, Wright Medical, and Biomet, on behalf of plaintiffs who have been injured by their hips. Lawyers often refer to cases such as this as “mass torts.” Generally, a “mass tort” involves situations where many individuals have been injured by a single product (like a recalled hip device) or incident (a plane crash) and each injured individual files their own lawsuit against one or more defendants. In mass torts, the evidence and testimony in each case will often be the same and, therefore, the court system “consolidates” the cases before one or more judges. For example, in the DePuy ASR hip litigation, more than 9,000 cases have been consolidated in two courts; The California Superior Court in San Francisco and the United States District Court in Toledo, Ohio.
Many of our clients have confused these types of cases with what is commonly referred to as a “class action.” In a class action, there is usually one lawsuit filed by one person (the “class representative”) who is asserting claims on behalf of thousands of other people (the class). On the other hand, in a mass tort, each injured individual has their own individual lawsuit. This is important because in a mass tort, a settlement can only be achieved on an individual basis. In other words, each case is treated separately and can only be settled by each individual plaintiff. In contrast, class actions are typically settled by one person, the class representative, and class members are usually forced to either accept the settlement or opt out.
The other important thing to recognize is that in mass tort litigation settlement values are often arrived at through a formulaic approach. For example, many mass torts are settled with the defendants placing money into a “settlement fund. That fund is then apportioned to each plaintiff through the use of a formula or point system that is based on objective factors. Such factors could include things such as 1) whether the hip had to be revised; 2) whether the plaintiff has one or two defective hips; 3) were there complications following revision surgery; 4) does the plaintiff have any long term disabilities as a result of the defective hip; 5) the age of the plaintiff; and 6) the levels of cobalt/chromium found in the plaintiff’s blood.
THE MOST IMPORTANT thing to understand about this process is that all of the factors used to determine how much each plaintiff is apportioned from a settlement fund must be verified through the plaintiff’s medical records. For example, if a plaintiff claims he/she suffered irreversible nerve damage following a revision surgery, this will not be considered in the formula unless this injury is verified and described in the plaintiff’s medical records.
Time to get help!
Do you have an advocate looking out for your best interest every step of the way? At Kershaw, Cook & Talley, we represent hundreds of hip replacement patients who, for decades, continue to rely on our knowledge and expertise in fighting and winning cases in the mass tort and medical device arenas. All it takes is 3 simple steps! Start by sharing your story with us through our free evaluation form on this page or we invite you to give us a call toll free at 888-817-2527 for a no-cost, confidential case review.
At Kershaw, Cook & Talley, we look forward to serving you and your family.