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Stryker Hip Recall Litigation Update: January 2014

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. Recently, many of you may have heard about a settlement in a very similar case involving another recalled hip called the DePuy ASR. Many of our Stryker Rejuvenate clients have been calling us, asking us what that means for their case. First of all, there are many similarities between the Stryker Rejuvenate cases and the DePuy ASR cases. Both of these hips are hips that were recalled. Both of these hips were recalled because they are shedding cobalt and chromium ions into the hip joint. However, there is a significant difference between the ASR and the Stryker Rejuvenate cases. This difference relates to the location of the defect within the device.

In the Rejuvenate cases, the hip device is defective at the stem neck juncture. In the ASR cases, the device is defective between the ball and its acetabular shell (cup). What that means for people with Stryker Rejuvenates is that if you have a revision surgery, the surgery normally involves removing the stem from the patient’s femur, which can be a very invasive and destructive surgery. This can result in significant bone loss or even a fractured femur, which can be very damaging to a person’s mobility. In the ASR cases, revision surgery normally involves only replacing the ball and the cup, which is a much simpler, less destructive process. Therefore, in terms of potential destructiveness, Stryker cases present greater risk to the patient.

There are also differences in the way the cobalt and chromium appear to be reacting in people who have these hips. Based on what we’ve seen and based on some of the recent literature that’s come out, it appears that cobalt and chromium from Stryker hips have a significant, virulent reaction in the hip joint. It appears the metals cause more tissue damage and more bone loss than with the ASRs. People are now asking, “Well, how much did plaintiffs get in the ASR case?” The answer to that question is that it varies. If you’re looking at a straight forward ASR revision surgery for one hip without complications, where the patient had high cobalt and chromium, that person would typically get $250 thousand from the settlement. What’s important to know is that is exclusive of medical liens by health care providers who have not yet been paid.

In a typical lawsuit, if you get a settlement for a revision surgery, you would have to pay your insurance company from your settlement for any expenses they incurred for your revision surgery. In many of these cases those expenses can amount to more than $100,000. So, when you’re looking at a settlement that’s a $250 thousand settlement, where the liens don’t come out of it, what you’re really talking about is a settlement that’s in the $350 thousand range. That is the kind of lien we’re looking at in the ASR cases. The question is: what does this mean for the Stryker cases, if anything? Does the amount of settlement in ASR case set a baseline for Stryker? Is $250,000 the low end? Is that the high end? At this early point in the litigation it is difficult to say. However, based on my analysis, I think it would set a base as the low end. That $250,000, exclusive of liens, would be a low number to settle the Stryker Rejuvenate cases because the Stryker revision surgery is much more invasive. That being said, a lot of the settlement in the ASR case has to do with the liability evidence. The evidence in that case was very clear that the ASR was defective, and that DePuy knew about it for a very long time before they recalled it. In the Stryker case, it’s too early to know if we have that kind of evidence. If you have evidence that Stryker acted responsibly in the sense that if once they learned there was problem, the company immediately recalled the hip, then that is a different case. If that turns out to be true, that could bring down settlement values. The other thing that I think is also important to note is the timing of the settlement. When one is talking about a settlement in a case that’s three and a half years old, that settlement would be greater than in a case which settles after only a month or two. So, if you have a quick settlement, many times, plaintiffs are willing to settle for less money in order to resolve their case sooner rather than later. So, all of these factors will impact the size of a settlement in Stryker, but at the end of the day I think, you’ll see settlements that are slightly higher than what we’ve seen in the ASR case. Stryker cases are good cases, and at this point it remains to be seen where they’ll end up.

If you have a Stryker Rejuvenate and you want to participate in any settlement in the future, it’s important to retain a lawyer because he/she will evaluate and investigate your case in ways that’s difficult if not impossible for you to do alone. If you do not file a case it would be extremely difficult to obtain a recovery or settlement. So, if you have one of these Stryker hips, whether you have any symptoms or not or any other problems, give us a call. We’ll investigate your case and if appropriate, get a case on file for you. We’ll make sure you’re protected because if you wait until you have problems with your hip or until you need revision surgery, it may be too late because your statute of limitations might run on your case, thus making it impossible for you to ever bring a case. You should be vigilant in protecting your rights and we’re here to help you navigate the legal process.

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