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.

Stryker Status Conference Update


On Thursday,  January 22nd, there was a status conference regarding In Re: Stryker Rejuvenate and ABG II hip implant products liability litigation (MDL 13-2441). The conference occurred before Judge Donovan W. Frank in the United States District Court, District of Minnesota in St. Paul, Minnesota.

The conference began with an update concerning the two-step process of the litigation. The first step was having all cases formally registered with the Defendant and the settlement processor. All plaintiffs should have registered their claims whether the case was filed, unfiled, qualified, or unqualified. It was reported that the majority of potential plaintiffs completed registration successfully. The second step is the actual and formal enrollment of those individuals who are qualified and choose to enroll in the settlement. The enrollment process is more complicated than registration. The enrollment process opened on January 16th and ends on March 2nd, 2015. Depending on your individual circumstances, your attorney should guide you to make an informed decision as to whether or not to participate in the settlement.

The formal website for the Stryker Hip Litigation is www.strykermodularhipsettlement.com. If you are trying to settle your case without a lawyer, the site contains the appropriate forms to participate in the settlement.

Another status conference is set with a tentative date of March 27th.

Stryker Hip Settlement Registration Deadline: 2 weeks away!


Attorneys William Kershaw and Stuart Talley of Kershaw, Cook & Talley have extensive experience litigating and settling defective hip cases. How can an attorney help with my case? 

The Stryker hip settlement encourages individuals to hire an attorney. The claims process is complex. It involves submitting all the necessary documentation required for the settlement. Individuals may miss submitting appropriate documents, miss deadlines, or make mistakes in the process. Unfortunately, this adversely affects their settlement. The claims administrator and the defendants want an orderly process. It is important having an attorney on your side.

Under the settlement, people with revised hips will receive a base award of $300,000.  There is an approximate 33% deduction from your settlement if you are not represented at the time of the settlement agreement! In most cases, attorney’s fees range from 30% to 40%. And you are likely to receive more from your settlement with the help of an attorney than working alone.

Determining how much you will receive is not an easy task. You may not get all your money if you are inexperienced reviewing medical records and dealing with settlement agreements. There is essentially no cost to you when taking into consideration the deduction for not having an attorney. Under the settlement agreement, an attorney should get you the most money possible for your situation.

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.

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.

hip hasn’t been revised. How does that impact me?



The Stryker settlement offered at this time only applies to individuals who had their Stryker hips revised (the hip was replaced) before November 3, 2014.

There is one exception to that rule. There are many people who need to have their hip replaced. Their surgeons recommended revision surgery because of elevated cobalt and chromium, or other issues. However, due to their age or health status, are unable to undergo a revision surgery. For example, someone needs a revision but experiences heart problems and cannot have the surgery. The Stryker settlement agreement allows for compensation for people who fall into that category. The agreement gives them $75,000 should they accept that offer.

Perhaps, you do not fall into that category: you are in a wait and see approach, you’re monitoring your cobalt and chromium levels yearly, you aren’t experiencing any pain, and you may never need revision surgery. If you fall into that category, your case will still be pending and none of your rights will be released under the settlement agreement. At some point in time, within the next year, your case will most likely be dismissed. However, under the settlement agreement, if you believe you have injuries, you can continue pursuing your case. If you have your case dismissed, but 2 years from now you do need revision surgery, we can refile your case and the statute of limitations will be tolled during this time. This means the filing date of your new case will relate back to the date you initially filed your case. In other words, if you have a case on file, and your hip has not been revised, then by filing a lawsuit you protect yourself against the statute of limitations running on your case.  You are not prejudiced in any way by having your case dismissed.

If you have not had your hip revised, and you do not have a case on file, the tolling of the statute of limitations does not apply to you. If you have a Stryker Rejuvenate or ABG II that is not revised, it is crucial to get a case on file so that your statute of limitations is preserved. The statute of limitations is essentially the time period by which you have to file a lawsuit.

If you have a Stryker Rejuvenate or ABG II that is not revised, feel free to give us a call. We can provide you with more information on how this settlement works and what you need to do to preserve your rights.

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: Do I have to participate?



No. You do not have to participate in any settlement that Stryker offers. Everyone who has a case is free to evaluate that offer and determine whether or not they want to take the settlement. You do not have to accept the Stryker settlement if does not compensate you adequately for your injuries.

It is important to have an attorney to evaluate your case if you have a Stryker Rejuvenate or ABG II hip. An attorney can inform you if the offer on your case is one you should or should not accept. The alternative of not taking the offer is pushing your case forward and trying to get a trial date; that is the only way Stryker will offer more for your case than the settlement.

If you have a Stryker Rejuvenate or ABG II hip, and are wondering whether or not to participate in the Stryker settlement, we are happy to help. We have a lot of these cases and experience litigating hip cases. We settled many cases and can tell you our opinion on whether you have a good case or whether you should settle.

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

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