Cobalt Chromium Toxicity

Defective Hip Settlements: Do I Have To Take What The Defendants Are Offering?


In the past few months, several large hip manufacturers have announced global settlements programs in an effort to resolve thousands of lawsuits alleging that their hips were defective.  In almost all of these cases, the amounts being offered by the defendants do not reflect the true settlement value of the cases.  However, despite the small amounts being paid, most plaintiffs are settling their cases as part of these settlement program.  In considering a settlement, here are important things to consider.

  • The decision to settle your case is yours and yours alone.  If you have an attorney that is telling you that “you have to settle your case” for an amount that you believe is less than what you deserve, get a second opinion.  When getting a second opinion, try to find an attorney who is active in the litigation and has a large number of cases.  Most plaintiffs’ attorneys would be happy to speak with you free of charge.
  • Understand that in settling large mass hip cases, the defendants really have two points of leverage.  First, because there are thousands of similar cases clogging the courthouse, they can make you wait.  If you decide not to participate in a global settlement program, the only way to get the defendant to pay what your case is worth is to get a trial date.  In most cases, judges are not interested in setting cases for trial until all the other cases have been settled.  This can often take years.  Second, the defendants in these hip cases rely heavily on the fact that many plaintiff’s lawyers who file them do not have the financial resources to try one to a jury.  The defendants know that these attorneys will often pressure their clients to accept settlement that are less than they deserve.
  • Know that you if you do not settle your case, you may have to wait years for a better settlement is offered.  Many plaintiffs, especially those who are older, are not willing to wait.
  • Understand that when a settlement is offered you have to take into account the “deductions.”  In almost all cases, there are three items that will come out of your settlement; attorney’s fees, expenses, and insurance liens.  Make sure your attorney lists all of these deductions out and tells you what your “net settlement” will be before you sign any settlement documents.  The only exception to this advice has to do with “insurance liens.”  Insurance liens constitute the amount that you have to pay to your health insurance company from your settlement for any treatment it paid for that is associated with your defective hip.  Determining the amount of an “insurance lien” requires negotiations with your health insurance company and these negotiations can often take several weeks or months.  You may not know the amount of the lien by the deadline for accepting a settlement.  However, your attorney should be able to determine the maximum amount of the lien be examining your medical bills.
  • Feel free to ask your lawyer questions.  In most hip cases, the injuries suffered by plaintiffs are substantial and once your case is settled, its settled forever.  Make sure your attorney answers every question you have and that you are satisfied with his answers.  If you are not receiving acceptable answers or you lose faith in your lawyer, get a new lawyer.  In most states, the law permits plaintiffs to switch lawyers without paying any additional fees.

If you have any questions or concerns regarding your recalled or defective hip, call Kershaw, Cook & Talley at 888-817-2527 for a free case consultation.

The 510 (k) process and metal on metal hip implants


Currently, various medical devices enter the marketplace via a regulatory pathway, the 510(k) process, monitored by the Food and Drug Administration (FDA). The 510(k) process loosely evaluates for safety and effectiveness, and approves the clearance of new medical devices based on ones that are substantially similar and previously cleared.

There are 3 classes of devices:

  1. Class 1: low-risk devices (e.g. toothbrushes, dental floss, band aids). Class 1 devices are subject to minimal regulatory controls. 
  2. Class 2: moderate- risk devices (e.g. powered wheelchairs). Class 2 devices require greater regulatory controls. 
  3. Class 3: highest-risk devices (e.g. metal on metal hips, replacement heart valves). Class 3 devices are supposed to undergo the highest level of regulatory control known as Premarket Approval, or PMA. 

According to the FDA, Premarket Approval (PMA) requires manufacturers to submit an application if they intend to market any new products containing new materials or differing in design from products already on the market. A PMA submission must provide valid scientific evidence collected from human clinical trials showing the device is safe and effective for its intended use.

However, many class 3 devices do not undergo PMA. They are cleared through the 510 (k) process, claiming substantial equivalence to preamendment devices, or comparable devices already on the market. Unfortunately, this allows companies a means of avoidance in testing their products for safety and effectiveness before releasing them on the market.

 

Stryker Settlement: Will Broadspire continue paying my expenses?



Q: Will Broadspire continue paying my expenses?

A: Under the terms of the Stryker settlement, there is a specific provision that deals with Broadspire. As you probably know, Broadspire is a company hired by Stryker to help compensate people with a Rejuvenate or ABG II hip who have expenses related to the recall. There are essentially 3 types of categories we are dealing with.

In the first category, we have people that have submitted claims to Broadspire for compensation prior to November 3, 2014. November 3, 2014 is the date that the Stryker settlement agreement was entered. If you submitted a claim before then, Broadspire will process that claim in the ordinary course and if it’s a valid claim they will compensate you. It is important to know that for claims falling within that category the settlement offer Stryker made will not be reduced in anyway by amounts you received for claims submitted prior to November 3.

If you submitted a claim after November 3, and want to participate in the Stryker settlement agreement, there will be a deduction for claims submitted during that window. As an example, say you submitted a claim on November 5 for surgery you had in October. Under the settlement agreement, Broadspire would process that claim; if it’s $10,000 then Broadspire would send you a check for $10,000. Once you get your settlement, there will be a $10,000 deduction.

For people who qualify for the Stryker settlement, but decide not to enroll and reject the settlement, Broadspire will completely cut that person off. There will be no compensation for somebody who does not participate in the settlement for any claims submitted after the deadline for participation which is March 2015.

If you have any questions about Broadspire, how it works, how to get claims submitted, or how to get them paid, we are happy to answer any questions.

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

I received money from Broadspire. How will that affect me?


Q: I received money from Broadspire. How will that be taken into account?

A: Many people want to whether Broadspire will continue to process their claims and whether the Broadspire program will cease to exist. The Broadspire program will continue to exist and specifically for people who have not had revision surgery. If you have not had revision surgery, you do not qualify for the Stryker settlement, and Broadspire will continue to cover your expenses.

It is important to note that in the settlement agreement Stryker made it very clear that the Broadspire program is entirely voluntary. They can shut it down anytime they want. But right now, as far as we know, the program will continue to exist for those individuals who have not had revision surgery.

If you had revision surgery, and qualify for the Stryker settlement, the way the settlement is drafted is you have until March 2015 to decide whether or not you want to participate in the settlement. If you qualify for the settlement, and decide not to participate, meaning you want to continue litigating your case, Broadspire will no longer be available to you. That is part of the Stryker settlement agreement.

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

Stryker Settlement: What are “liens”? Will this affect how much I get?



Q: What are “liens”? How will this affect how much I get?

A: There are deductions from the amount you receive from liens. Liens are essentially the right of your healthcare insurance company, or Medicare, to recover from your lawsuit any amounts they expended from your medical bills associated with your revision surgery. The amount of those liens can vary dramatically depending on your insurance.

There are a couple of important things to know. First, it is the amount your insurance company actually paid that is a lien on your case. It is not the amount the hospital or your doctor billed for your revision. Often times those are very different values. Secondly, your lawyer should get those liens substantially reduced. Most people with Stryker Rejuvenate or ABG II cases have lawyers who operate on a contingency fee basis (they get a percentage of their Stryker settlement). The contingency fee generally ranges from 30% to 40%. The law in most states asserts if you have a recovery, and your insurance company is entitled to reimbursement for medical expenses, it is not fair you have to pay the fee necessary to get them their medical expenses back. Almost all insurance companies will agree to reduce their lien by the amount of the attorney’s fees. For instance, if you have a 30% contract with your attorney, usually the lien holder will reduce the lien by at least 30%. Sometimes, you can get further reductions. Especially, if you have a Stryker settlement on the low end of what you were expecting.

If you have a lien, it must be dealt with. Your attorney will be in contact with your insurance company or Medicare advising them of the settlement. The process entails getting your medical records and bills from the insurance company, and comparing it against the actual medical treatment to make sure everything is legitimate. Then there is a negotiation process where your attorney should seek to reduce the lien. The purpose is getting you as much money as possible.

If you have a Stryker Rejuvenate or ABG II, and qualify for the Stryker settlement, we are happy to help. We have extensive experience dealing with defective hip litigation and know how to negotiate and reduce liens.

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

Do I need a lawyer to get money from the settlement?



Q: Do I need a lawyer to get money from the settlement?

A: The answer is no. You do not need a lawyer to participate in the Stryker settlement. However, the settlement is structured in a way to encourage people to hire a lawyer. The reason is the claims process; the process of submitting all the documentation in the settlement is incredibly complex.

The claims administrator and the defendants want an orderly process. They want claims submitted by people who know how to do it and will not make mistakes.  Under the settlement, people with revised hips will receive a base award of $300,000. However, if you are not represented at the time of the settlement agreement, there is an approximate 35% deduction from your settlement. Most plaintiffs’ lawyers will do these cases for 35%. You are actually better off having a lawyer helping with your settlement rather than working alone. You will receive 35% less either way.

You definitely want an attorney because the settlement agreement is extremely complex. It is not easy determining how much you will receive. You may not get all your money if you are inexperienced reviewing medical records, and dealing with settlement agreements. You definitely want an attorney helping with your case. There is really no cost to you when you take into consideration the deduction for not having a lawyer. A lawyer should get you the most money you can get under the settlement agreement.

If you have a Stryker Rejuvenate or ABG II hip, we encourage you to give us a call and we can answer any questions you have about the Stryker settlement agreement. We can help process your claim through that settlement so we can get you what you are entitled.

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

Stryker Settlement: Will I receive compensation for lost earnings?



Many of our clients had revision surgery, and as a result of that surgery, had to miss work for a substantial period of time. Some clients were significantly injured from their Stryker hip and could no longer work. Many of them had physically demanding jobs and cannot work anymore. So, they lost future earnings.

The Stryker settlement in place provides additional compensation for individuals with lost earnings. In order to qualify, the lost earnings have to be at least 20% of the 2 year average of the combined earnings prior to your revision surgery. For instance, let’s say you make $100,000 per year. We would assess the amount you made for the 2 year period before your revision surgery. So, if you earned $100,000 each year, you would have $200,000 in total earnings. 20% of $200,000 would be $40,000. So, in order to qualify, you would have $40,000 in lost earnings. For many people, this is not a problem because of the future lost earnings.

It is important to know that lost earnings are capped at $200,000. The most you can get from lost earnings is $200,000. Under the settlement agreement, there is a deduction from lost earnings for any amount you received from Broadspire to compensate you for your lost earnings. You must take this into consideration. Proving the amount of lost earnings is a complex process. You should have a lawyer to make the best showing possible to get as much as you can from lost earnings.

If you have a Stryker Rejuvenate or ABG II, and qualify for the Stryker settlement, Kershaw, Cook & Talley is happy to help you. We have a lot of these cases, extensive experience with defective hip litigation, and settling hip cases.

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

Stryker Settlement: How do I qualify?


Under the Stryker settlement agreement, there are certain criteria you must meet. The first is you underwent a revision surgery prior to November 3, 2014. A revision surgery means your Stryker hip was removed. It is important to understand that revision surgery is defined in a very specific way. If the surgeon just replaced the cup or the ball, it is not considered a revision surgery. You needed to have the stem removed from the femur in order to qualify for the settlement.

The second part in order to qualify is having your hip removed for a recalled related event or reason. If your hip was removed because of an infection, or removed because you fell down after it was implanted, those types of reasons for removing the hip do not qualify. There is also a threshold requirement stating the Stryker hip was removed because of a recalled related reason. In order to qualify for the settlement, your medical records need to show one of the following: elevated cobalt and chromium, positive MRI (showing tissue damage or fluid accumulation), or tissue damage from metallosis found during surgery.

It is not easy determining if you qualify. If you have any questions whether or not you fit into the Stryker settlement, we are happy to help you. We have many of these cases and have extensive experience litigating and settling defective hip cases.

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

How Settlements Work in Defective Hip Litigation


Hi, this is Stuart Talley of Kershaw, Cook & Talley. I am the partner here responsible for the defective hip litigation. The reason I am doing this video today is to provide some information about the settlement of hip cases. Many people are calling us asking how hip cases will typically settle. Although it is difficult to provide specifics in any given case, there are some general guidelines I think most people can be aware of that apply in cases like this.

Settlements in hip cases are unique. Typically, there are thousands of cases pending. In the DePuy ASR litigation, there are approximately 14,000 cases. In the Stryker Rejuvenate litigation, there are about 6,000 cases pending. So, when you settle cases like this on a global basis, it is a lot different than settling an individual lawsuit. In these cases, the defendant and plaintiffs will have settlement discussions and try to agree on what the average case should settle for. Once you have that number, you can extrapolate a settlement fund; $2.4 billion was put into a settlement fund in the DePuy ASR litigation. Then, you have to figure out an easy, quick, and verifiable way to apportion the settlement proceeds to people who have a case.

Generally, there is a “formula”, grid, or some process created, where people with severe damages end up with more money than people with limited damages. The formula is also used regarding people with problematic cases that may be difficult to win because of prior health conditions, or other factors, versus cases where someone doesn’t have those issues. So, you have a formula or grid, and you might start off with a certain amount of money that a plaintiff receives if they had a revision surgery. Then you would take a deduction of a certain percentage if they were a smoker, or a deduction if they have weight issues, or there might be a deduction if they’re older patients. There are different deductions that may be rational based on what the defendants believe make a good case or a bad case, and others may not be rational. Typically, there is some kind of formula that’s created to either bring somebody down from the base award, or up from the base award.

Modifications that increase base award are usually for extraordinary injuries. For instance, say you had your hip replaced and 3 months later you are up and running, and have no residual, permanent injuries; you would get the base award. Whereas, you might get more than the base award if you ended up with dislocations after your revision, or you had an infection and had to have 2 more surgeries, or you end up with nerve damage and have a limp or drop foot for the rest of your life.

The most important thing to understand is that you do not have to take the settlements in these cases; these settlements are not done deals. The case is an individual for every person who has a case against a hip manufacturer. This means only the plaintiff can settle the case. So, if there is a settlement fund, a way of apportioning money, at some point your lawyer is going to contact you and say, “If you take this settlement, here is how much you will get.” At that point, you are free to either take or reject the settlement. But you are not required to accept a settlement that’s offered to you. If you reject the settlement, then your lawyer will continue litigating your case, and hopefully get a trial date in your case, or do something to move your case forward. So, defendants will hopefully pay more than what you might be awarded under a global settlement.

If you have a recalled or defective hip, a metal on metal hip, give us a call toll free at (888) 817-2527 whether or not your case is settled. We can provide you with information about how settlements work. We can also tell you at the end of the case whether we believe a settlement is adequate or not for you.

Defective Hip Settlement: What are Liens?



Hi, I’m Stuart Talley of Kershaw, Cook & Talley. The reason I am doing this video today is to provide information to people about liens. Many of our hip cases have recently settled, and our clients often have questions regarding liens. You will hear a lot about liens if you have a hip case that settles.

A lien is basically the right of your health insurance company, Medicare, or any state agency that paid for medical treatment to receive reimbursement from your settlement for the medical expenses they incurred because of your injuries. A typical example: you have private health insurance, you had a defective hip implanted, and 2 years later you need it replaced. When that hip comes out, your insurance will pay for the revision and subsequent treatment after the revision surgery. Now, for all of the expenses the insurance company or Medicare paid for your revision surgery, they have a right to reimbursement for those expenses from your settlement.

Most of the time, all fee agreements I’ve seen between plaintiff’s lawyers and their clients provide that those liens actually come out of the client’s share of the recovery. For instance, if you have a $300,000 settlement and your insurance company paid $50,000 for your revision surgery, they would have a $50,000 lien on your settlement. That $50,000 would come out of your share of the settlement after your attorneys are paid.

The important thing to know about liens is that they are often negotiable. If an attorney calls an insurance company and tells them their client has a settlement in a case, the insurance company will most often agree to reduce that lien. Generally, the amount of the reduction is equal to the attorneys’ fees owed on that amount. If an agreement is a 40% fee agreement, the attorney would then call the insurance company and tell them to reduce the $50,000 lien by 40%; it is not fair the client paid that 40% and the insurance company doesn’t have to. Almost always, the insurance company will agree to reduce the liens by the amount of the attorney’s fees.

Liens are unavoidable; you cannot ignore them. The insurance companies will come after you down the road if they find out you settled your case and you didn’t take care of their lien. With respect to Medicare, there is a federal law requiring plaintiff’s lawyers and defendants to tell Medicare about a settlement; it has to be dealt with in every case. The problem with liens is they can take a long time to resolve.  Many times the insurance companies are slow to provide the lien information and they’re even slower negotiating lien resolutions. Medicare is notorious for being very slow and it can often takes months to get a lien resolved.

If you have a defective hip, or any questions on liens and how they work (what’s recoverable and what’s not), give us a call toll free at (888) 817-2527. We have experience dealing with liens, negotiating with insurance companies, and we are happy to help.

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