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Settlement Reached in Hip-Implant Lawsuits


Rochester residentAnn McCracken's lawsuit against DePuy was a bellwether case for more than 7,000 lawsuits nationally

A settlement agreement has been reached involving thousands of lawsuits related to DePuy Orthopaedics Inc.'s recalled ASR hip-implant system, including a Rochester resident's bellwether case.

The settlement agreement between plaintiffs and DePuy and Johnson & Johnson was reached before the start of the first federal bellwether trial to decide the litigation of Rochester resident Ann McCracken, who sued the hip-implant manufacturer asserting she was injured by its defective ASR device. McCracken's lawsuit was one of thousands of cases filed nationwide in federal court.

The trial team for the McCracken case included Faraci Lange LLP attorneys Hadley Matarazzo and Stephen Schwarz. Today, the parties announced an agreement to settle the majority of claims filed against DePuy and Johnson & Johnson in both state and federal courts. Ann McCracken's lawsuit is included in the global settlement agreement.

Ann McCracken's case, the first bellwether lawsuit, was scheduled to go to trial on September 9, 2013. A week prior to the start date, the court continued the trial, allowing time for the parties to attempt to negotiate a settlement of all cases. Federal court cases involving DePuy's ASR Hip device were consolidated under Judge David A.  Katz in the Northern District of Ohio.

"I am happy that a settlement agreement has been reached," said McCracken, a 58-year-old single mother and owner of A Good Sign Company. "It feels good to be part of a process that has helped thousands of injured patients like me. I hope this result will lead medical device makers to be more careful in the future so that people do not have to go through what I've gone through."

Hadley Matarazzo said, "Our clients have been through a lot, and we hope this settlement agreement will enable them to begin to put this behind them. Unfortunately, ASR Hip implants continue to fail and we get calls all the time from people who have been told that they must have the devices removed. Nothing in the agreement prohibits individuals whose devices fail in the future from seeking compensation."

Under Part A of the settlement agreement, base compensation of $250,000 will be paid to plaintiffs who had an ASR device surgically removed for reasons related to the recall by August 31, 2013. This base compensation may be decreased in some cases for certain factors that could also have contributed to the failure such as length of use of the ASR Hip, smoking and obesity. A separate compensation pool referred to as Part B will provide additional compensation if the plaintiff developed specific complications during or after revision surgery or had to undergo re-revision surgeries. Complications such as dislocation, stroke, infection, heart attack and blood clots associated with the ASR Hip and revision of the ASR Hip are specifically listed as ones that will qualify for compensation under Part B.

Another significant component of the agreement is that the defendants J&J and DePuy will be responsible for negotiating with and reimbursing Medicare and other qualified lienholders for the medical costs incurred by these lienholders as a result of the failed implants. This is a significant benefit to plaintiffs as these liens can hold up payment to plaintiffs for months and even years.

Under the agreement's terms, plaintiffs have until April 1 to enroll in the settlement program.  Defendants then have until June 1 to determine whether participation requirements have been met and, if they have not been met, to tell plaintiffs whether they will walk away from the settlement. BrownGreer, a third-party law firm with extensive experience in administrating large settlement programs, was retained to administer the ASR Settlement Program. It is expected that basic claims will begin to be paid by July 1, 2014 assuming that defendants move forward on June 1.

Patients who have not undergone revision surgery as of August 31, 2013 are not eligible for participation in the ASR Settlement Program. This does not mean that such patients will go without compensation as all of their rights against defendants are preserved by this proposed agreement and litigation will continue against defendants on behalf of these patients who are not eligible for the global settlement.

Faraci Lange represents Ann McCracken and more than sixty other clients throughout western New York with failed DePuy ASR Hip implants.

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