On the heels of two lawsuits filed against Johnson & Johnson to address failings in their improperly marketed DePuy ASR metal-on-metal hip implants, and ahead of a lawsuit set to begin this September to address the same, there are now rumblings that the health care giant plans to offer $3 billion to settle all those claims that have been filed against them.
If this turns out to be true, it would be higher than the $2 billion proposed at the beginning of the year by the company, according to the five people that a story from Bloomberg lists as sources. Plaintiff attorneys reportedly balked at that figure when it was allegedly offered.
But much has changed in the ensuing timeframe. Panish Shea & Boyle was involved in the first bellwether case involving the DePuy ASR, a case that saw a Montana man successfully suing the company for $8.3 million after his device failed, necessitating a painful revision surgery.
The jury awarded that figure at the end of a trial in which DePuy’s various failings were brought to light. Lawyers pointed out the lack of testing afforded the device prior to its arrival onto the market, the negative accounts related by surgeons to the company (accounts that failed to trigger an adequate response by DePuy), and the revelation that the two metal components of the DePuy ASR could rub against one another, sending metal debris into a patient’s body, potentially leading to additional complications.
At the moment, there are about 11,500 lawsuits awaiting trial across the country. If the sources interviewed for the story are to be believed, each of the persons involved in those claims would gain over $300,000. If that $3 billion is eventually accepted, it would set the record for the highest settlement ever provided to patients who received a hip implant device. The previous record clocked in at $1 billion, paid by Sulzer AG.
It’s important to note, though, that this settlement would mean that the $300,000 figure would be an average. Some persons implanted with the DePuy ASR suffered more serious damage than others. To arrive at the exact amount that would be paid to each patient, various factors such as the level of injury, the difficulty of the explantation procedure, and the person’s age would be taken into account, along with some other variables. What each factor entitles an individual to will require extensive negotiation.
Cases involving severe harm befalling affected individuals will also necessitate closer scrutiny. As one San Francisco-based lawyer points out, it’s not unreasonable to assume such persons could reap a seven figure jury award. A settlement, therefore, will need to take these persons into account.