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March 2014 Stryker Litigation Update

Hi, I’m Stuart Talley with Kershaw|Talley. Bill Kershaw and I are the partners responsible for providing a status update on the Stryker Rejuvenate and Stryker ABG II litigation case. We are happy to report that the court has recently set several important deadlines that will begin moving this case forward at a fairly rapid pace.

As previously reported, we have had a very difficult time getting Stryker to cooperate in discovery. To date, they have only produced a small fraction of the documents we have requested and have not yet produced any witnesses for deposition. At the same time, Stryker is repeatedly advising the court that it is settling cases in other jurisdictions. It appears its strategy is to convince the judge that no discovery should take place in our case since all of the cases will eventually be settled through its “settlement program.”

However, the settlement process that Stryker has in place is simply insufficient. First, at this point in time, Stryker has only settled 10 cases. We are now two years post-recall and at this rate, it will be another 20 years before all of the Stryker cases are resolved. Second, the 10 settlements that have been achieved thus far are entirely confidential. We know little about how much the cases settled for or the facts underlying each case. This means that it is impossible to apply anything that has been learned from these settlements to other cases. Finally, we believe it is premature to begin settlement discussions before conducting any meaningful discovery. The value of your case will significantly depend on what Stryker “knew and when it knew it.” For example, if Stryker knowingly delayed issuing a recall even though it knew about the design problem with its hips, it will have to pay significantly more to settle your and every other case. In our opinion, it is a mistake to even discuss settlement before this work has been done.

At this point, it appears our Judge is not buying into Stryker’s strategy of delay and wants these cases to move forward. Specifically, the court issued an order last week that puts in place deadlines that will result in the first “bellwether” case being tried to a jury in the Summer of 2015. “Bellwether” cases are the first few cases to be tried to a jury and are referred to as “bellwethers” because they often tend to establish the settlement value of other pending cases. We believe that it is not until Stryker is faced with the prospect of having to face a jury that it will put in place a real settlement program.

To select the Bellwether cases, the court put in place an order that requires the defendants and plaintiffs to 1) establish different types of injury case categories and then 2) select 6 cases for trial that fall into each of those different categories. Under the Court’s order we should have cases selected for trial by no later than the end of May 2014.

At the same time, the plaintiffs are pushing very hard to force Stryker to begin producing discovery. Yesterday, an extensive motion to compel was filed and by the next status conference we expect to have an order from the court forcing Stryker to begin producing witnesses and documents by specific deadlines.

As always, if you would like more details about how the status conference went, you can visit the video library at our Stryker Litigation Updatesite, To see the videos, click on the Stryker Litigation Update tab at the top of the page. Also, as always, feel free give us a call if you have any questions.


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