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Stryker Hip Recall Litigation Update: December 2013

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.

Today, we had a monthly status conference before Judge Donovan Frank. He is the Federal District Court judge responsible for handling and managing the numerous Stryker Rejuvenate cases pending around the country. He resides in Minneapolis, Minnesota, and has status conferences once a month to discuss the status of the case and ensure the litigation process is progressing forward in a timely and efficient manner. The judge addressed many issues.

Judge Frank reached out to other judges and courts, specifically state courts, where Stryker Rejuvenate cases are currently pending. He reached out to judges in New Jersey, Florida, and Oregon state courts to ensure their coordination. Judge Frank wants to avoid different courts making different rulings, or in essence managing the case in their own way. This can lead to chaos and inefficiencies in the cases.

Subsequently, the judge spoke about Plaintiff Fact Sheets. A Plaintiff Fact Sheet is an extensive questionnaire each plaintiff is required to fill out. It asks for information such as the client’s treating physicians, when the hip was placed, when it was removed (if it was removed), and for basic information such as medical history. Plaintiff Fact Sheets are used in large cases , where thousands of lawsuits involve the same product or device in order to expedite court proceedings. Judge Frank entered an order that requires Plaintiff Fact Sheets be filled out. This fact sheet was negotiated between the plaintiffs and the defendants. Most clients with cases on file must submit Plaintiff Fact Sheets to the defendant within sixty days.

The other issue the judge discussed was a protective order. The protective order is an order that protects the documents Stryker produces during discovery. In these cases, millions of pages of documents are typically produced: e-mails, blueprints for the hip, design documents, and scientific documents showing how the hip was tested. These documents contain highly proprietary, or confidential information, Stryker does not want their competitors to have. The protective order is typically put in place to protect these documents so that the lawyers,, or other people, do not reveal them to the public. There is a dispute about a clause in the protective order between the plaintiffs and defendants. Stryker hopes to prevent the plaintiffs from essentially showing protected documents to experts who might work for a competitor. Unfortunately, in these cases, most of the experts are competitors of Stryker or other hip manufacturers. This is an issue for the plaintiffs and it will be briefed and decided by Judge Frank at the next status conference, which is in late January 2014.

Furthermore, there is an issue about electronic discovery. In these cases, a large amount of resources are dedicated to obtaining documents from the defendants. Usually this involves millions of pages of documents, most of which are maintained on computers. There is a protocol which both parties need to agree, on how those documents are going to be extracted from the computers, how the defendants are going to determine which documents are relevant and responsive to document request that the plaintiffs served, and then what format those documents are going to be produced. There is a discussion about how the documents are searched, and essentially, how the computer systems are searched. In the past, plaintiffs and defendants would agree on what we call search terms. For instance, Stryker would search their computer systems for any document with the word, ‘rejuvenate’ in it and, it will produce documents with that respective search term. The parties may agree on specified terms to search. However, what is revealed is with search terms alone, does not necessarily produce all of the relevant documents. In fact, a large percentage of them could be missing when searching millions of documents in this fashion.

Therefore, several different companies developed ‘predictive coding’. Predictive coding is analogous to an online radio station. The online radio station plays music, a subscriber decides what songs they like or dislike, and the station plays music according to this input. This is done via an algorithm which can predict songs the subscriber likes or dislikes based on songs previously liked and disliked, and can create playlists based on those preferences. This analogy applies to predictive coding documents. In this case, there may be a sampling of thousands of documents from a computer. The documents are researched by the plaintiff’s side and the defendant’s side. Both sides analyze the documents, and if the document is relevant, it would be considered a like. If the document is not relevant, it is considered a dislike. The predictive coding software looks at which documents have received likes and dislikes, and uses an algorithm to predict which documents are relevant amongst the millions of unseen documents. The predictive coding yields relevant evidence, and reveals our results in a much better search for documents. Essentially, predictive coding produces a higher percentage of documents. Stryker does not like predictive coding, or the process, and will likely resist.

The defendant’s issue with predictive coding and the process of retrieving documents will be briefed at a hearing during the status conference next month.

As always, if you desire more details concerning the status conference, you may visit the video library at our Stryker Litigation Update site, To see the videos, click on the Stryker Litigation Update tab at the top of the page. Please feel free to call us with any questions or concerns.

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