December 6, 2011
By order dated November 28, 2011, Judge David Katz of the United States District Court for the Northern District of Ohio approved an arrangement “to provide for the fair and equitable sharing among plaintiffs, and their counsel, of the burden of services performed and expenses incurred by attorneys acting for the common benefit of all plaintiffs in this complex litigation.” That is, to create a “common benefit fund” to compensate certain plaintiffs’ lawyers for work performed that helps all of the plaintiffs in the multidistrict litigation over DePuy’s ASR hip devices, In Re: DePuy Orthopaedics, Inc. ASR Hip Implant Products Liability Litigation, no. 1:10-md-2197.
In a nutshell, the order provides that each monetary recovery obtained by a claimant either as a result of settlement or after trial of his or her DePuy ASR case is subject to an “assessment” on the gross amount. The assessment will be three percent for “common benefit attorneys’ fees” plus one percent for costs. It will be the responsibility of the defendants and their counsel to withhold the assessment and to pay it directly into court. The court will not approve any settlement without proof that the appropriate assessment has been paid.
In August of 2010, DePuy announced a global hip replacement recall of two devices: the ASR Hip Resurfacing System and the ASR XL Acetabular System. Each unit replaces a worn or weakened part of the hip. Many orthopedic doctors believe that the units were poorly designed; the implants can generate debris from wear, causing inflammation and tissue damage in recipients, as reported last year by the New York Times. 93,000 persons worldwide had an ASR device implanted before the recall, according to data published by DePuy itself.
DePuy, a Johnson & Johnson company, recalled its ASR devices globally after the National Joint Registry of England and Wales made public data showing that, within five years, about 12% of recipients of the hip resurfacing system and about 13% of recipients of the acetabular system needed corrective surgery, as reported by the Times.
Rochelle Rottenstein, principal of the Rottenstein Law Group, says, “We implore anyone with a friend or relative who has received a hip replacement device since 2003 to reach out to that person and recommend that he or she consult a physician immediately and then speak to a qualified personal injury lawyer.”