Stryker Litigation Update

lawyer2

STRYKER HIP SETTLEMENT: REGISTRATION DEADLINE IS DAYS AWAY, DECEMBER 14!

The Stryker Hip Settlement Program may provide compensation to eligible patients who underwent revision surgery, replacing their ABG II Modular Neck Hip Stems and/or Rejuvenate Modular Neck, before November 3, 2014. Additionally, patients who cannot undergo revision surgery are possibly entitled to compensation; if the procedure was contraindicated for the patient prior to November 3, 2014.

The registration process is open until the deadline on Sunday, December 14, 2014. Registration Orders were issued in Multi-District Litigation (MDL) and Multi-County Litigation (MCL) courts. The orders instruct attorneys with “un-filed claims and filed lawsuits, pro se plaintiffs, and unrepresented claimants” to register claims, whether the patient was revised or unrevised (www.strykermodularhipsettlement.com).

You must register to enroll in the Settlement Program. However, you are not required to enroll in the Settlement Program if you register. Contact us for a free case consultation, or for any help regarding the Stryker Hip Settlement. 

For a PDF of the Stryker Settlement FAQs and answers, please click Kershaw, Cook & Talley Stryker FAQs to download the file.

STRYKER REJUVENATE AND ABG II HIP CLAIMS:

The Stryker hip recall litigation* is ongoing in the United States District Court, District of Minnesota, and other state courts. New Jersey’s Bergen County Superior Court issued an order on November 13, 2014 stating all potential Stryker Rejuvenate and ABG II hip claims must be registered by the December 14th deadline. This order applies to both filed and un-filed Stryker recall lawsuits, and claims for Stryker Rejuvenate and ABG II individuals who have not yet undergone revision surgery.

However, the order does not require claimants who register to enroll in the Stryker settlement program. Claimants who choose to accept the settlement terms must enroll in the program between January 15 to March 2, 2015.

Bill Kershaw and Stuart Talley are the attorneys responsible for the defective hip litigation at the law firm of Kershaw, Cook & Talley. In addition to current clients, Mr. Kershaw and Mr. Talley continue to assist individuals with concerns about their Stryker Rejuvenate or Stryker ABG II hip implants. A settlement agreement* was announced by Stryker Orthopaedics on November 3, 2014. Under the settlement, qualified individuals may be entitled to approximately $300,000 if they underwent revision surgery (replacing the recalled hip) prior to November 3, 2014. The amount of money an individual may receive can go up or down depending on the specific medical circumstances of the plaintiff. Individuals with extreme injuries can receive up to $1 million.

*In re: Stryker Rejuvenate Hip Stem and ABG II Modular Hip Stem Litigation, Case No. 296, Master Docket No. BER-L-936-13, venued in MCL Court and In re: Stryker Rejuvenate and ABG II Hip Implant Products Liability Litigation, MDL Docket No. 13-2441, venued in the MDL court.

http://www.strykermodularhipsettlement.com

Breaking News: Stryker Rejuvenate and ABG II Settlement Announced

Hi, this is Stuart Talley of Kershaw, Cook & Talley. I am the partner responsible for the Stryker Rejuvenate and ABG II litigation. The reason I am doing this video today is to provide some breaking news in the status of the Stryker Rejuvenate and ABG II litigation.

I just returned from court here in Minneapolis, Minnesota, and I am pleased to announce that at a court hearing that was held today, a global settlement agreement was announced. This is a settlement that will be open to anyone who has a Stryker Rejuvenate or ABG II hip that has been revised. Under the terms of the settlement, anyone who has a Stryker Rejuvenate or ABG II hip that has been revised will receive on average $300,000. This settlement can go up or down depending on individual circumstances of the plaintiff. The settlement can go up if someone has extraordinary injuries, or injuries that go beyond an average case. For example, somebody who either has an infection after revision, dislocation, or needed an osteotomy, there are upward adjustments for those types of injuries.

This settlement puts in place a mechanism so that anyone with one of these hips receives some sort of compensation. It is important to know this is a completely voluntary settlement program. The settlement in place is really a settlement offer that’s made available to anyone who has these hips. The settlement may not be perfect for everybody. I don’t think this settlement works for many cases within our firm. Those cases may have to be litigated going forward.

If you have a Stryker Rejuvenate or ABG II that was revised, it is very important you immediately get in touch with an attorney so they can evaluate your case, help process you through this settlement program, and get you the compensation that you deserve.

If you have a Stryker Rejuvenate or ABG II that was not revised, the settlement agreement provides relief for those people as well in the form of non-monetary relief. Stryker takes the position that unless you’ve been revised, you have not suffered damages. I know lots of people are concerned about elevated cobalt and chromium. But the science right now is pretty clear that unless you actually have some kind of soft tissue injury in the hips, it’s very difficult to prove one of these cases. So, Stryker is not paying people that have not had a revision.

What is important to know about the settlement is that if you have a case that is on file, and your hip has not been revised, the statute of limitations will be tolled in your case. This means that your case doesn’t run. You’re protected if you need a revision down the road, and you could participate in the settlement at that point or file a lawsuit, or do what you need to do to preserve and protect your rights.

However, if you have a Stryker Rejuvenate or ABG II, that has not been revised and you do not have a case on file, you are not protected. Stryker has made it clear in the settlement that they intend to pursue the statute of limitations as a defense in cases. They may do that if you wait too long to get a case on file. But if you get a case on file now, the settlement agreement essentially tolls your statute, and keeps it preserved and protects your rights down the road.

So, if you have a Stryker Rejuvenate or ABG II call us right away, we can tell you more about this settlement. We will also provide updates on this webpage as they come up. We will try to answer frequently asked questions. It is very important to get in touch with an attorney if you have one of these hips, so they can make sure your rights are protected. Feel free to call us at 888-635-3970 or fill out one of our online forms on our website. I, or one of my partners, will contact you right away.

October 2014 Update:


Hi. This is Stuart Talley. Bill Kershaw and I are the attorneys responsible for the Stryker Rejuvenate and ABG II hip cases. We are providing an update on the litigation status currently pending in Minneapolis, Minnesota before Judge Donovan Frank.  Right now, there are about 4,000 cases filed and that number goes up every day. We receive phone calls from new people every day who are having problems with their Stryker hips. By the next update, there will probably be around 6,000 cases on file.

We have not had a status conference with the court for a couple of months. The next one is set for November 6, 2014. In the interim, there was a lot of paper work filed with the court on discovery issues. Discovery is the process where we get documents from the defendants; we take depositions of the defendants, their engineers, executives, salesmen. The idea is developing evidence we will need for trial.

One of the big battles brewing in this case involves documents. In this case, Stryker informed us they produced all their documents. To date, we received about 700,000 pages. It seems like a lot but in the context of cases like this, it’s really a drop in the bucket. In other hip cases we’ve handled, defendants typically produced anywhere from 20 to 60 million pages of documents.  We’ve looked at Stryker’s documents and discovered enormous gaps in email production. Email production is where you see most of the documents. There are generally millions of emails between engineers, between sales reps, where we find the best evidence for the case. We discovered certain key witnesses produced one email or none at all. From our standpoint, it appears documents were destroyed or simply not produced.

We are trying to get a deposition from a Stryker representative to find out what happened to all the documents. We also want to know if they were destroyed. And if so, is there a way to get them back. Sometimes, emails or deleted documents off a server can be retrieved from backup tapes. Companies often have servers with large amounts of data backed up on tapes. Those tapes are then stored in a separate, safe location apart from the facility with the servers. This ensures that if there is a disaster they can use the tapes to restore data. We hope there are the backup tapes on emails we can use to fill in the gaps.

Stryker does not want us to take that deposition, and filed a motion to quash the deposition. They asked the judge to prevent us asking questions regarding the documents and where they went. This issue will be decided on November 6. If it’s determined Stryker destroyed documents, and they destroyed documents knowing of an impending lawsuit (after the recall), it poses serious consequences for Stryker. If you can show the knowing destruction of evidence, judges have lots of remedies available to punish the party that destroyed the evidence. Judges can impose monetary sanctions, issue sanctions, or jury instruction sanctions. An issue sanction is when the judge has an issue deemed admitted by Stryker. For example, say there are key documents showing Stryker knew about the problems with the hip before it was put on the market. If we can’t prove this as a result of documents that were destroyed, the judge might enter an issue sanctioned so jurors are told at the trial Stryker knew there were problems with the hip before they put it on the market. With a jury instruction sanction, you can have the judge advise the jury that Stryker destroyed evidence in the case, and for purposes of deciding the case, they can assume there were documents that probably would have hurt Stryker down the road.

August 2014 Update:

 

Hi, I’m Bill Kershaw with Kershaw, Cook & Talley. Stuart Talley and I are the partners responsible for providing a status update on the Stryker Rejuvenate and Stryker ABG II litigation case.

We had a status conference on August 21st. We addressed a number of issues at the status conference. Approximately four thousand cases are filed in various courts nationwide. We were meeting in the multi district litigation (MDL) in St. Paul, Minneapolis. There are two thousand cases pending in St. Paul, and we are currently engaging in discovery. We are taking depositions of corporate representatives on various scientific subjects, and electronic storage of information subjects which are central to the trials. We are also in the process of selecting Bellwether cases or test cases. A bellwether trial is a selection of representative sample of cases tried in front of a jury. Bellwether cases are normally demonstrative of matters which may arise in every injured party’s case. We are picking roughly twelve cases and they will go to trial next summer. Those cases will inform us how to handle many of the other cases pending since thousands of cases cannot be tried. The hope is these cases provide a blueprint how to resolve litigation later on. The Plaintiff’s Steering Committee believes it is critical we obtain discovery and understand what is happening with the cases before we settle.

The next status conference is September 22nd. We have reached an agreement with Stryker with respect to foreign entities to toll the statute of limitations for any claims against those entities so any claims those individuals have might have will be preserved going forward.

July 2014 Update:

 

Stryker Hip Recall Latest News: Late Summer Update

Hi, I’m Stuart Talley with Kershaw, Cook & Talley. Bill Kershaw and I are the partners responsible for providing a status update on the Stryker Rejuvenate and Stryker ABG II litigation case.

We are handling quite a few Stryker cases. Recently, we are receiving quite a number of calls regarding the statute of limitations issue.In this month’s video we will be going over what are the statute of limitations for Stryker Hips AGB II and Rejuvenate.

June 2014 Update:

 

Hi, I’m Stuart Talley with Kershaw, Cook & Talley. Bill Kershaw and I are the partners responsible for providing a status update on the Stryker Rejuvenate and Stryker ABG II litigation case.

On June 24, 2014, attorneys from Kershaw, Cook & Talley appeared at a status conference in Minneapolis, Minnesota. The majority of the Stryker Rejuvenate cases are pending in Minnesota and Judge Donovan Frank is responsible for managing these cases.   At the status conference, it was reported that substantial progress was made towards getting cases ready for trial in July 2015. Judge Frank addressed several issues at the status conference.

First, he wanted a current status on the number of filed cases. Presently, there are over 2,000 cases filed around the country in various jurisdictions.

He also wanted an update regarding discovery. There was a lot of discussion about discovery. The plaintiffs argued that Stryker is not cooperating with discovery and is refusing to produce documents. One of the biggest problems concerned emails. There are thousands of documents produced in the case but very few emails. The plaintiffs’ attorneys discussed how Stryker employees, intimately involved with the design and development of the Rejuvenate hip for years, only produced approximately 100 emails when there should be thousands of emails. At this point in the litigation, the plaintiffs intend to conduct discovery to find out what happened to these emails. Were they destroyed? Why were they destroyed? If they were destroyed, were they backed up anywhere? Often, destroyed emails are obtained through backup tapes.

Another discussion concerned depositions. According to plaintiffs, they are trying to get dates for depositions of Stryker employees and Stryker is not cooperating.  The plaintiffs believe Stryker is attempting to delay the proceedings in an effort to push out the July 2015 trial date.

Currently, there are no meaningful settlement discussions. Stryker disclosed they settled roughly 27 cases of the thousands of cases that were filed. All those settlements are confidential and no one knows the specific amounts or details about the cases. Judge Frank appeared frustrated from this fact and indicated he would like an open settlement process. An open settlement process is typically the only way these cases are resolved.

If you have any questions, please contact us via the phone number on the screen or visit our website and send us an email.

May 2014 Update:

Hi, I’m Stuart Talley with Kershaw, Cook & Talley. Bill Kershaw and I are the partners responsible for providing a status update on the Stryker Rejuvenate and Stryker ABG II litigation case. I am here to discuss the outcome of the monthly status conference that took place in Minneapolis.

During this conference, the judge attempted to contact and coordinate with other judges presiding over similar cases concerning the Stryker litigation. This coordination helps avoid delays or excess cost in the cases. The judges who are presiding over Stryker cases in other jurisdictions are located in Oregon, New Jersey, and Florida where other Stryker cases are currently pending.

The judge also discussed the schedule of the litigation. Trials are set to begin in the summer of 2015. However, there was a discovery dispute between plaintiffs and Stryker over the production of certain documents by Stryker. At this point, plaintiffs have obtained approximately a million pages from Stryker. This is a miniscule portion of the documents we expect Stryker to produce. Stryker delayed the production of important documents so we would not receive them until the end of 2014. However, the judge produced an order stating that the documents must be produced no later than July of 2014. We are optimistic that the documents will be produced at this time.

The plaintiffs and defendants are disputing the production of electronic documents. Most documents are prepared on a computer. We previously received an order demanding Stryker produce an electronic version of the printed regulatory documents that have already been produced. An electronic copy allows us to determine who created and edited that file. The judge ordered Stryker to produce electronic versions of the hard copies that were produced. Stryker was resistant and attempted to get relief from the judge’s previous order. The judge was not pleased with this request and will rule on this matter this week. This decision determines whether or not the judge will amend his previous order.

Stryker asked the court to allow it to speak with the plaintiffs’ treating surgeons who have pending lawsuits against Stryker. For example, there are many surgeons who have implanted the Stryker Rejuvenate hip device many plaintiffs who are our clients. Stryker wants to speak to many of the implanting surgeons, your doctors, without your attorneys present and without the patient, you, our clients, knowing about it. We are strongly opposed to this. There are many statues and laws preventing surgeons and physicians from disclosing any private information about their patients to third parties. We have concerns about Stryker speaking to our client’s doctors outside of our presence without knowing what the doctors are saying. Stryker tries to justify this approach on the basis that they want to hire experts to defend their case. Unfortunately, these experts are the same surgeons who placed Stryker’s defective hips in their patients, our clients. Stryker maintains that if they are prevented from discussing the case with plaintiff’s surgeons, it will prevent them from hiring experts for their defense. We have asked the court to enter an order preventing Stryker from contacting your surgeons, and thus preventing them disclosing any personal or private information about you, their patients. There are strict rules in regard to what doctors can disclose to Stryker or any third party. The judge will issue an order this week pertaining to these issues.

Judge Frank would like to explore setting up a global settlement process. So far, the few settlements that have occurred have been executed on a confidential basis. Approximately ten to fifteen cases have been settled at this point. However, no one knows the outcome of these cases. Judge Frank is advocating for a global, transparent settlement process. There is a meeting to address this issue in June and another monthly status conference on June 12.

As always, if you desire more details concerning the status conference, you may visit the video library at our Stryker Litigation Update site, www.defectivehipsettlementcenter.com. To see the videos, click on the Stryker Litigation Update tab at the top of the page. Please feel free to call us with any questions or concerns.

April 2014 Update

Update on Plaintiffs’ Motion to Compel Discovery – April 16, 2014:

Hi, I’m Stuart Talley with Kershaw, Cook & Talley. Bill Kershaw and I are the partners responsible for providing a status update on the Stryker Rejuvenate and Stryker ABG II litigation case. The Court ordered that the defendant Stryker provide discovery to plaintiffs in the form of thousands of pages of documents. We anticipate these documents will show whether or not Stryker had prior knowledge of the metallosis problems their hip devices would cause. Stryker has resisted our attempts to take discovery and obtain corporate documents which pertain to their conduct. After they resisted, we filed a motion to compel. A motion to compel asks the Court to force the defendant to produce those documents. One such series of documents is a custodial file from a corporate witness who is knowledgeable about a particular issue in the litigation. For instance, the file could be from an engineer who worked on creating or inventing the Stryker Rejuvenate or ABG II hip implant devices.

Currently, we are seeking custodial files from 26 key witnesses. Stryker requested a schedule to delay these documents until the end of the year but the Plaintiffs Executive Committee filed a motion to receive the documents sooner to speed up discovery in the case so our clients would not have to wait so long for resolution. After we receive the custodial files, we will take the depositions of the corporate witnesses who are knowledgeable about specific issues of liability. A deposition refers to a party questioning another parties witness under oath. The Stryker custodial files are essential for deposition of the witnesses.

Furthermore, some documents we requested are in French. Stryker produced several of their defective hips in France via a subsidiary. We asked that the judge order Stryker to produce these French documents immediately so those documents can be translated and transcribed for trial. Additionally, we requested electronic versions of all printed documents. This is necessary because it enables us to have a native file format. A native file format is an electronic document which consists of the meta-data. Electronic meta-data tells us who created the documents, who worked on the documents, and how the documents were produced. The judge ordered Stryker to produce the native file formats.

Stryker has produced about a million pages of documents thus far but we believe there are many more to analyze. This discovery process is now making real progress, and we are pleased to finally be moving forward and making real progress in the case.

As always, if you desire more details concerning the status conference, you may visit the video library at our Stryker Litigation Update site, www.defectivehipsettlementcenter.com. To see the videos, click on the Stryker Litigation Update tab at the top of the page. Please feel free to call us with any questions or concerns.

March 2014 Update:

Hi, I’m Stuart Talley with Kershaw, Cook & Talley. Bill Kershaw and I are the partners responsible for providing a status update on the Stryker Rejuvenate and Stryker ABG II litigation case.We are happy to report that the court has recently set several important deadlines that will begin moving this case forward at a fairly rapid pace.

As previously reported, we have had a very difficult time getting Stryker to cooperate in discovery.  To date, they have only produced a small fraction of the documents we have requested and have not yet produced any witnesses for deposition.  At the same time, Stryker is repeatedly advising the court that it is settling cases in other jurisdictions.  It appears its strategy is to convince the judge that no discovery should take place in our case since all of the cases will eventually be settled through its “settlement program.”

However, the settlement process that Stryker has in place is simply insufficient.  First, at this point in time, Stryker has only settled 10 cases.  We are now two years post-recall and at this rate, it will be another 20 years before all of the Stryker cases are resolved.  Second, the 10 settlements that have been achieved thus far are entirely confidential.  We know little about how much the cases settled for or the facts underlying each case.  This means that it is impossible to apply anything that has been learned from these settlements to other cases.  Finally, we believe it is premature to begin settlement discussions before conducting any meaningful discovery.  The value of your case will significantly depend on what Stryker “knew and when it knew it.”  For example, if Stryker knowingly delayed issuing a recall even though it knew about the design problem with its hips, it will have to pay significantly more to settle your and every other case.  In our opinion, it is a mistake to even discuss settlement before this work has been done.

At this point, it appears our Judge is not buying into Stryker’s strategy of delay and wants these cases to move forward.  Specifically, the court issued an order last week that puts in place deadlines that will result in the first “bellwether” case being tried to a jury in the Summer of 2015.  “Bellwether” cases are the first few cases to be tried to a jury and are referred to as “bellwethers” because they often tend to establish the settlement value of other pending cases.  We believe that it is not until Stryker is faced with the prospect of having to face a jury that it will put in place a real settlement program.

To select the Bellwether cases, the court put in place an order that requires the defendants and plaintiffs to 1) establish different types of injury case categories and then 2) select 6 cases for trial that fall into each of those different categories.  Under the Court’s order we should have cases selected for trial by no later than the end of May 2014.

At the same time, the plaintiffs are pushing very hard to force Stryker to begin producing discovery.  Yesterday, an extensive motion to compel was filed and by the next status conference we expect to have an order from the court forcing Stryker to begin producing witnesses and documents by specific deadlines.

As always, if you would like more details about how the status conference went, you can visit the video library at our Stryker Litigation Updatesite, www.defectivehipsettlementcenter.com.  To see the videos, click on the Stryker Litigation Update tab at the top of the page.  Also, as always, feel free give us a call if you have any questions.

February 2014 Update:

Hi, I’m Stuart Talley with Kershaw, Cook & Talley. Bill Kershaw and I are the partners responsible for providing a status update on the Stryker Rejuvenate and Stryker ABG II litigation case. On February 20, 2014, the court in the Stryker Rejuvenate MDL held a status conference to discuss the status of the litigation. It was reported to the court that there are now more than 1,500 individual Stryker lawsuits that have been filed throughout the United States.  Judge Donavan Frank, the judge assigned to hear these cases, reported that he had reached out to several state court judges who are presiding over cases in other jurisdictions to discuss coordinating their efforts to ensure that the cases are litigated as efficiently as possible.

The second issue that was brought up at the hearing involved a discussion of efforts at settlement.  Stryker reported to Judge Frank that in New Jersey it had successfully reached settlement agreements in 9 cases.  However, because the settlements are ”confidential” the amounts of the settlement are unknown and the facts underlying each plaintiffs’ case are unknown.  Judge Frank reported that he would be sending a magistrate judge to New Jersey to meet with the mediators who helped settle the 9 cases. The purpose of this order is to examine whether it’s possible that a global settlement program could be put in place with respect to all the pending cases.

At this point, plaintiff’s counsel advised the court that they were very concerned that Stryker was using the prospects of settlement as a means of delaying the progression of the litigation. Specifically, it was reported that Stryker had only produced a small fraction of the several million pages of documents that have been requested by the plaintiffs and has refused to provide any timeline or dates for the depositions of Stryker employees and executives.  The plaintiffs are very concerned that Stryker is trying to ram through a settlement before the plaintiffs are able to fully discover the facts which led to the eventual recall of the Stryker Rejuvenate hips.  Judge Frank advised the parties to meet and confer on the discovery issues and then bring any unresolved issues to the magistrate’s attention before the next status conference.

The next status conference in the case is set for March 20, 2014.  We will be providing an update after this conference.

If you have a Stryker hip and you want more information about the litigation, how it’s progressing, or you need a legal advisor to evaluate your case, feel free to give us a call. You can reach us at 888-635-3970 or through our website at www.defectivehipsettlementcenter.com

January 2014 Update:

Hi, I’m Stuart Talley with Kershaw, Cook & Talley. Bill Kershaw and I are the partners responsible for providing a status update on the Stryker Rejuvenate and Stryker ABG II litigation case. Recently, many of you may have heard about a settlement in a very similar case involving another recalled hip called the DePuy ASR. Many of our Stryker Rejuvenate clients have been calling us, asking us what that means for their case. First of all, there are many similarities between the Stryker Rejuvenate cases and the DePuy ASR cases. Both of these hips are hips that were recalled. Both of these hips were recalled because they are shedding cobalt and chromium ions into the hip joint. However, there is a significant difference between the ASR and the Stryker Rejuvenate cases. This difference relates to the location of the defect within the device.

In the Rejuvenate cases, the hip device is defective at the stem neck juncture. In the ASR cases, the device is defective between the ball and its acetabular shell (cup). What that means for people with Stryker Rejuvenates is that if you have a revision surgery, the surgery normally involves removing the stem from the patient’s femur, which can be a very invasive and destructive surgery. This can result in significant bone loss or even a fractured femur, which can be very damaging to a person’s mobility. In the ASR cases, revision surgery normally involves only replacing the ball and the cup, which is a much simpler, less destructive process. Therefore, in terms of potential destructiveness, Stryker cases present greater risk to the patient.

There are also differences in the way the cobalt and chromium appear to be reacting in people who have these hips. Based on what we’ve seen and based on some of the recent literature that’s come out, it appears that cobalt and chromium from Stryker hips have a significant, virulent reaction in the hip joint. It appears the metals cause more tissue damage and more bone loss than with the ASRs. People are now asking, “Well, how much did plaintiffs get in the ASR case?” The answer to that question is that it varies. If you’re looking at a straight forward ASR revision surgery for one hip without complications, where the patient had high cobalt and chromium, that person would typically get $250 thousand from the settlement. What’s important to know is that is exclusive of medical liens by health care providers who have not yet been paid.

In a typical lawsuit, if you get a settlement for a revision surgery, you would have to pay your insurance company from your settlement for any expenses they incurred for your revision surgery. In many of these cases those expenses can amount to more than $100,000. So, when you’re looking at a settlement that’s a $250 thousand settlement, where the liens don’t come out of it, what you’re really talking about is a settlement that’s in the $350 thousand range. That is the kind of lien we’re looking at in the ASR cases. The question is: what does this mean for the Stryker cases, if anything? Does the amount of settlement in ASR case set a baseline for Stryker? Is $250,000 the low end? Is that the high end? At this early point in the litigation it is difficult to say. However, based on my analysis, I think it would set a base as the low end. That $250,000, exclusive of liens, would be a low number to settle the Stryker Rejuvenate cases because the Stryker revision surgery is much more invasive. That being said, a lot of the settlement in the ASR case has to do with the liability evidence. The evidence in that case was very clear that the ASR was defective, and that DePuy knew about it for a very long time before they recalled it. In the Stryker case, it’s too early to know if we have that kind of evidence. If you have evidence that Stryker acted responsibly in the sense that if once they learned there was problem, the company immediately recalled the hip, then that is a different case. If that turns out to be true, that could bring down settlement values. The other thing that I think is also important to note is the timing of the settlement. When one is talking about a settlement in a case that’s three and a half years old, that settlement would be greater than in a case which settles after only a month or two. So, if you have a quick settlement, many times, plaintiffs are willing to settle for less money in order to resolve their case sooner rather than later. So, all of these factors will impact the size of a settlement in Stryker, but at the end of the day I think, you’ll see settlements that are slightly higher than what we’ve seen in the ASR case. Stryker cases are good cases, and at this point it remains to be seen where they’ll end up.

If you have a Stryker Rejuvenate and you want to participate in any settlement in the future, it’s important to retain a lawyer because he/she will evaluate and investigate your case in ways that’s difficult if not impossible for you to do alone. If you do not file a case it would be extremely difficult to obtain a recovery or settlement. So, if you have one of these Stryker hips, whether you have any symptoms or not or any other problems, give us a call. We’ll investigate your case and if appropriate, get a case on file for you. We’ll make sure you’re protected because if you wait until you have problems with your hip or until you need revision surgery, it may be too late because your statute of limitations might run on your case, thus making it impossible for you to ever bring a case. You should be vigilant in protecting your rights and we’re here to help you navigate the legal process.

December 2013 Update:

Hi, I’m Stuart Talley with Kershaw, Cook & Talley. Bill Kershaw and I are the partners responsible for providing a status update on the Stryker Rejuvenate and Stryker ABG II litigation case.

Today, we had a monthly status conference before Judge Donovan Frank. He is the Federal District Court judge responsible for handling and managing the numerous Stryker Rejuvenate cases pending around the country. He resides in Minneapolis, Minnesota, and has status conferences once a month to discuss the status of the case and ensure the litigation process is progressing forward in a timely and efficient manner. The judge addressed many issues.

. Judge Frank reached out to other judges and courts, specifically state courts, where Stryker Rejuvenate cases are currently pending. He reached out to judges in New Jersey, Florida, and Oregon state courts to ensure their coordination. Judge Frank wants to avoid different courts making different rulings, or in essence managing the case in their own way. This can lead to chaos and inefficiencies in the cases.

Subsequently, the judge spoke about Plaintiff Fact Sheets. A Plaintiff Fact Sheet is an extensive questionnaire each plaintiff is required to fill out. It asks for information such as the client’s treating physicians, when the hip was placed, when it was removed (if it was removed), and for basic information such as medical history. Plaintiff Fact Sheets are used in large cases , where thousands of lawsuits involve the same product or device in order to expedite court proceedings. Judge Frank entered an order that requires Plaintiff Fact Sheets be filled out. This fact sheet was negotiated between the plaintiffs and the defendants. Most clients with cases on file must submit Plaintiff Fact Sheets to the defendant within sixty days.

The other issue the judge discussed was a protective order. The protective order is an order that protects the documents Stryker produces during discovery. In these cases, millions of pages of documents are typically produced: e-mails, blueprints for the hip, design documents, and scientific documents showing how the hip was tested. These documents contain highly proprietary, or confidential information, Stryker does not want their competitors to have. The protective order is typically put in place to protect these documents so that the lawyers,, or other people, do not reveal them to the public. There is a dispute about a clause in the protective order between the plaintiffs and defendants. Stryker hopes to prevent the plaintiffs from essentially showing protected documents to experts who might work for a competitor. Unfortunately, in these cases, most of the experts are competitors of Stryker or other hip manufacturers. This is an issue for the plaintiffs and it will be briefed and decided by Judge Frank at the next status conference, which is in late January 2014.

Furthermore, there is an issue about electronic discovery. In these cases, a large amount of resources are dedicated to obtaining documents from the defendants. Usually this involves millions of pages of documents, most of which are maintained on computers. There is a protocol which both parties need to agree, on how those documents are going to be extracted from the computers, how the defendants are going to determine which documents are relevant and responsive to document request that the plaintiffs served, and then what format those documents are going to be produced. There is a discussion about how the documents are searched, and essentially, how the computer systems are searched. In the past, plaintiffs and defendants would agree on what we call search terms. For instance, Stryker would search their computer systems for any document with the word, ‘rejuvenate’ in it and, it will produce documents with that respective search term. The parties may agree on specified terms to search. However, what is revealed is with search terms alone, does not necessarily produce all of the relevant documents. In fact, a large percentage of them could be missing when searching millions of documents in this fashion.

Therefore, several different companies developed ‘predictive coding’. Predictive coding is analogous to an online radio station. The online radio station plays music, a subscriber decides what songs they like or dislike, and the station plays music according to this input. This is done via an algorithm which can predict songs the subscriber likes or dislikes based on songs previously liked and disliked, and can create playlists based on those preferences. This analogy applies to predictive coding documents. In this case, there may be a sampling of thousands of documents from a computer. The documents are researched by the plaintiff’s side and the defendant’s side. Both sides analyze the documents, and if the document is relevant, it would be considered a like. If the document is not relevant, it is considered a dislike. The predictive coding software looks at which documents have received likes and dislikes, and uses an algorithm to predict which documents are relevant amongst the millions of unseen documents. The predictive coding yields relevant evidence, and reveals our results in a much better search for documents. Essentially, predictive coding produces a higher percentage of documents. Stryker does not like predictive coding, or the process, and will likely resist.

The defendant’s issue with predictive coding and the process of retrieving documents will be briefed at a hearing during the status conference next month.

As always, if you desire more details concerning the status conference, you may visit the video library at our Stryker Litigation Update site, www.defectivehipsettlementcenter.com. To see the videos, click on the Stryker Litigation Update tab at the top of the page. Please feel free to call us with any questions or concerns.

Novemeber 2013 Update:

Hi, I’m Stuart Talley with Kershaw, Cook & Talley. Bill Kershaw and I are the partners responsible for providing a status update on the Stryker Rejuvenate and Stryker ABG II litigation case.

As many of you may know, there are thousands of Stryker Rejuvenate cases that are pending around the country and many thousands more that we expect to be filed shortly. To deal with cases like this where you have thousands of people all asserting claims with respect to the same type of medical device, what the court system does to increase efficiency is to put all those cases in one court. So the majority of these cases are now consolidated in Minneapolis, Minnesota. The first thing that the judge in this case has done is appoint a group of plaintiffs firms to be on what’s called the Plaintiffs’ Steering Committee (the PSC). That’s the Committee which runs the litigation for plaintiffs. There are several hundred law firms that have cases on file, but what the judge wants to do is appoint a small group of firms to actually handle the day-to-day litigation on the plaintiff’s side. At Kershaw, Talley, we are on that Plaintiffs’ Steering committee.

We had our first hearing before the judge in Minneapolis on November 21st. This was the first hearing after the PSC had been appointed. We’re very early in the litigation. There were a lot of preliminary issues to discuss at this hearing. Some of the initial major issues that have been discussed are protective orders. There is a dispute between the plaintiffs and the defendants about the scope of protective orders, and when I say ‘protective orders’, what I’m talking about is confidentiality orders. Many times in these cases, the defendants want some mechanism to make sure that all documents that they produce in the case remain confidential, and aren’t released to competitors and the public. So there is now a dispute as to how broad that protective order should be and there was discussion on that issue.

The other issue that is in the works that is being addressed at this point, is something called Plaintiff Fact Sheets. In these cases where you have thousands of people all asserting the same claims, there has to be a mechanism to allow the defendants to get information about every single case that is out there. So, instead of doing full-blown discovery and depositions like one would in a normal lawsuit, where you have one plaintiff and one defendant, the parties try to come up with an expedited process of getting information to the defendant. And that process results in something called a Plaintiff Fact Sheet, which is essentially a long questionnaire.

There is a dispute right now and there is a discussion between the plaintiffs and the defendants on what that Plaintiff Fact Sheet should look like. Plaintiffs like to keep fact sheets simple, short and really down to the bare bones, so that the defendants are getting the information they really need about the cases that are out there. On the other hand, defendants typically like to make them very long, complex, complicated, where as much information as possible from each person who has a case is disclosed in this questionnaire. So, negotiations are ongoing right now as to what that Plaintiff Fact Sheet will look like, and if it can’t be resolved then the judge will decide. If there’s an agreement reached between the plaintiffs and defendants there will be a fact sheet that will go out to everyone who has a case.

The other thing that was discussed at this first hearing was service of complaints. When you file a lawsuit, one of the things you have to do is serve the defendant with the lawsuit. When you have thousands of similar cases it can be very expensive if you have to actually send a process server out to Stryker’s headquarters to serve each and every complaint. So, what we discussed with the judge was coming up with an expedited process for serving complaints where plaintiffs  e-mail the complaint to the attorney for Stryker. Stryker has agreed to this process, but only with respect to one of the Stryker defendants. There are multiple companies that were involved in the Stryker Rejuvenate and they have only agreed to service on one of the defendants.  So, there is a dispute as to whether service can be made in this expedited fashion with respect to all of the other defendants. If we can’t resolve that dispute, the judge will eventually decide.

The last thing that came up when the Plaintiffs’ Steering Committee met was this process of using or cooperating with other jurisdictions. Not all of the cases are in Minneapolis. There are many cases that are filed in state courts: in New Jersey, Florida and Oregon. Those state court proceedings are separate and distinct from the federal court proceedings, which are in Minneapolis. So, at this hearing there was a lot of discussion about cooperating with these other jurisdictions, so that the lawyers in New Jersey aren’t doing something completely different from the lawyers in Minneapolis on the plaintiff’s side.

So, there has been a discussion with the lawyers involved in these other jurisdictions, and there is going to be an effort to consolidate, or at least cooperate with respect to a sort of the procedural issues that take place. For example, if we take the deposition of a Stryker employee in the Minnesota case, what Stryker doesn’t want is that employee to be deposed again in New Jersey, and then deposed again in Oregon and once again in Florida. They want all of these depositions to take place in one shot. So, there was discussion about cooperation and coordination with these other jurisdictions, which on the plaintiff’s side is something that we want to do. We want coordination cooperation because it benefits everybody at the end of the day.

So, that is basically what’s been discussed at the hearing. There is another hearing next month, on January 23, 2014, where additional issues will be resolved, especially these issues with the fact sheets and protective orders. If they can’t be resolved, the judge may issue some rulings on that date. We’re still early in the litigation. We still haven’t started obtaining discovery from the defendant yet, and the discovery that we’re talking about is typically documents, and there are millions of pages of documents that we need to get from the defendant.

That is sort of going to be the next battle that we fight this case. Defendants don’t like to give us documents and on the plaintiff’s side, we like to get all the documents that we possibly can. There are also disputes as to how those documents are going to be searched, what the defendants are going to do to get us those documents, and how they are going to be produced. We want them produced them in an electronic format so we can search them and look at them. We also went to defendants to search for them in a specific way. So, that’s where we are.

If you have a Stryker Rejuvenate hip, feel free to give us a call.  We’d be happy to give you more details on the status of the litigation, or help you with a case that you may have against Stryker.

Getting the Help You Deserve

Do you have an advocate looking out for your best interest?  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 against manufacturers that put defective medical devices on the market. All it takes is 3 simple steps! Start by sharing your story with us through our free evaluation form on this page or give us a call, toll free, at 888-817-2527 for a confidential case review.

At Kershaw, Cook & Talley, we look forward to serving you and your family.

 



Real Time Web Analytics