Bellwether trials are individual case trials used as test cases to see how juries will decide a particular type of case. Maybe only 10 to 20 cases will be tried of the thousands of cases of that particular type of case. Both the defendants, who are the drug manufacturers or medical device manufacturers, and the plaintiffs watch these bellwether trials very closely. The results of the bellwether trials set the stage for settlement negotiations on the vast majority of that particular type of case.
The first Bellwether trial for the DePuy ASR hip replacement multi-district litigation has been postponed again. McCracken v. DePuy Orthopeadics had originally been scheduled for trial on September 9, 2013. Then, trial was postponed until September 24, 2013. U.S. District Court Judge David Katz (Northern District of Ohio) signed an order on Friday indicating that due to difficulties in scheduling expert witnesses, and scheduling other depositions and conducting pre-trial discovery that are necessary for the bellwether trials, the trial is delayed up to an additional 90 days.
This bellwether trial is the first of 7,860 similar federal lawsuits against Johnson & Johnson’s subsidiary, DePuy Orthopaedics. An additional 3,600 ASR lawsuits are pending in state courts.
The Rock Hill Herald reports that, “Bloomberg had reported that DePuy could be close to a US $3 billion settlement before trial, but that does not look likely at this point, says Legal-Bay Lawsuit Funding Firm.” DePuy won an Illinois state court case this past summer. Legal-Bay says, “[t]he time to settle may never be better to wrap up the 11k or so cases now filed. However, DePuy may feel that another win in federal court could really slow the litigation down even further. The winner of McCracken v. DePuy, in Ohio will leave either the plaintiffs or defendants having 2 wins to 1; and thus obtaining some leverage in settlement negotiations.”
According to the Rock Hill Herald, “Legal-Bay reports that if the DePuy settlement talks are accurate, then the average DePuy settlement amounts could be close to $300k per case. However, many cases could have a much lower or higher value based on many factors involved in each specific case.”
Two trials involving the DePuy ASR hip recall have been tried: Kransky v. DePuy, in which the jury awarded US $8 million to the plaintiff; and Strum v. DePuy, in which the jury found for Johnson & Johnson. With only two cases tried, the accurate value of these case cannot be determined. Each bellwether trial adds some clarity to case value, but in the end, each case must be evaluated on its merits with the criteria set forth in the settlement negotiations.
The problems with the ASR arise from the design of metal-on-metal. Here the metal cup (the socket) connects to the metal ball. This design flaw causes the metal components to grind against each other, causing metal debris to be released into the body, which can cause metal poisoning (metallosis) and other serious body and tissue damage.