DePuy Bellwether Drags On, While Canada Approves Zimmer Class Action Settlement

Dallas, TXWhile the third bellwether trial involving allegedly defective Pinnacle hips manufactured by DePuy Orthopaedics Inc. (DePuy, a unit of Johnson & Johnson) continues to meander along with no immediate end in sight, a judge in Canada has approved the proposed settlement stemming from a class action defective hip lawsuit.

The Canadian class action lawsuit against Zimmer Inc. (Zimmer) was initially filed in 2009 and involved allegations associated with the troubled Durom Cup hip device. As with other jurisdictions around the globe, the Durom Cup artificial hip is alleged to have failed prematurely in scores of Canadian patients due to a lack of bone adhesion.

According to The Vancouver Sun (10/08/16) some 1,100 class participants opted into the defective hip class action lawsuit from Ontario and Quebec, with several hundred more expected to come forward from Canada’s western-most province, British Columbia. It was in BC where a judge approved a settlement that had previously been given the thumbs-up in the other two provinces involved.

According to the approved settlement, compensation is associated with revision surgery in order to remove, and replace a failed Zimmer Durom Cup.

The proposed settlement will provide a class member having undergone what is referenced as an ‘uncomplicated surgery’ up to CDN. $97,500 in compensation for pain and suffering. Those having experienced a revision procedure where there were complications would be eligible to receive up to $172,500 in compensation.

There is one caveat: class members would have had to have undergone surgery by the first of September of last year in order to qualify for the larger compensation amounts. Those having undergone revision surgery after that date would only be entitled to $600.

The Canadian defective hip implant class action was originally launched in the same year as Zimmer recalled, and then subsequently halted sales of the troubled Durom Cup in November, 2009. According to The Vancouver Sun the device had been on the market for about five years, prior to the defective hip implant recall.

There had been 14 objections filed with respect to approving the proposed settlement. However, that wasn’t enough for BC Supreme Court Justice Gregory Bowden to delay, or deny the proposed class action settlement. Judge Bowden referenced the class action in his ruling as a complex litigation with a risk that if it was not approved, the plaintiffs would not be successful at a trial to determine common issues.

What’s more, Judge Bowden said, the expense associated with such future litigation had not been estimated but “would clearly be very substantial.

“Having regard to the factors referred to in these reasons, I have concluded that the settlement agreement in this case is fair, reasonable and in the best interests of the class members as a whole, and should be approved.”

Meanwhile, in the US the third DePuy bellwether trial drags on in Dallas. Six plaintiffs are involved, one more than the five plaintiffs represented by the second bellwether trial that ended in March with a $502 million verdict for the plaintiffs. The award was subsequently reduced to about $150 million in deference to Texas laws which mandate a cap on punitive damages.

In spite of earning a reduced award due to the Texas cap, Johnson & Johnson (J&J) lobbied for the third bellwether trial to be delayed until an appeal associated with the second trial was complete. The Fifth Circuit denied J&J’s petition, and the third bellwether trial has been ongoing since the end of September.

There is much interest, given the outcome of the first bellwether trial: a decisive win for the defendant over a single plaintiff. With the second trial (pending appeal) finding for the five plaintiffs – and the current trial involving six plaintiffs – all eyes are trained on the outcome of this defective hip implant bellwether trial.