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Stryker Hip Recall Litigation Update: November 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.

As many of you may know, there are thousands of Stryker Rejuvenate cases that are pending around the country and many thousands more that we expect to be filed shortly. To deal with cases like this where you have thousands of people all asserting claims with respect to the same type of medical device, what the court system does to increase efficiency is to put all those cases in one court. So the majority of these cases are now consolidated in Minneapolis, Minnesota. The first thing that the judge in this case has done is appoint a group of plaintiffs firms to be on what’s called the Plaintiffs’ Steering Committee (the PSC). That’s the Committee which runs the litigation for plaintiffs. There are several hundred law firms that have cases on file, but what the judge wants to do is appoint a small group of firms to actually handle the day-to-day litigation on the plaintiff’s side. At Kershaw, Talley, we are on that Plaintiffs’ Steering committee.

We had our first hearing before the judge in Minneapolis on November 21st. This was the first hearing after the PSC had been appointed. We’re very early in the litigation. There were a lot of preliminary issues to discuss at this hearing. Some of the initial major issues that have been discussed are protective orders. There is a dispute between the plaintiffs and the defendants about the scope of protective orders, and when I say ‘protective orders’, what I’m talking about is confidentiality orders. Many times in these cases, the defendants want some mechanism to make sure that all documents that they produce in the case remain confidential, and aren’t released to competitors and the public. So there is now a dispute as to how broad that protective order should be and there was discussion on that issue.

The other issue that is in the works that is being addressed at this point, is something called Plaintiff Fact Sheets. In these cases where you have thousands of people all asserting the same claims, there has to be a mechanism to allow the defendants to get information about every single case that is out there. So, instead of doing full-blown discovery and depositions like one would in a normal lawsuit, where you have one plaintiff and one defendant, the parties try to come up with an expedited process of getting information to the defendant. And that process results in something called a Plaintiff Fact Sheet, which is essentially a long questionnaire.

There is a dispute right now and there is a discussion between the plaintiffs and the defendants on what that Plaintiff Fact Sheet should look like. Plaintiffs like to keep fact sheets simple, short and really down to the bare bones, so that the defendants are getting the information they really need about the cases that are out there. On the other hand, defendants typically like to make them very long, complex, complicated, where as much information as possible from each person who has a case is disclosed in this questionnaire. So, negotiations are ongoing right now as to what that Plaintiff Fact Sheet will look like, and if it can’t be resolved then the judge will decide. If there’s an agreement reached between the plaintiffs and defendants there will be a fact sheet that will go out to everyone who has a case.

The other thing that was discussed at this first hearing was service of complaints. When you file a lawsuit, one of the things you have to do is serve the defendant with the lawsuit. When you have thousands of similar cases it can be very expensive if you have to actually send a process server out to Stryker’s headquarters to serve each and every complaint. So, what we discussed with the judge was coming up with an expedited process for serving complaints where plaintiffs e-mail the complaint to the attorney for Stryker. Stryker has agreed to this process, but only with respect to one of the Stryker defendants. There are multiple companies that were involved in the Stryker Rejuvenate and they have only agreed to service on one of the defendants. So, there is a dispute as to whether service can be made in this expedited fashion with respect to all of the other defendants. If we can’t resolve that dispute, the judge will eventually decide.

The last thing that came up when the Plaintiffs’ Steering Committee met was this process of using or cooperating with other jurisdictions. Not all of the cases are in Minneapolis. There are many cases that are filed in state courts: in New Jersey, Florida and Oregon. Those state court proceedings are separate and distinct from the federal court proceedings, which are in Minneapolis. So, at this hearing there was a lot of discussion about cooperating with these other jurisdictions, so that the lawyers in New Jersey aren’t doing something completely different from the lawyers in Minneapolis on the plaintiff’s side.

So, there has been a discussion with the lawyers involved in these other jurisdictions, and there is going to be an effort to consolidate, or at least cooperate with respect to a sort of the procedural issues that take place. For example, if we take the deposition of a Stryker employee in the Minnesota case, what Stryker doesn’t want is that employee to be deposed again in New Jersey, and then deposed again in Oregon and once again in Florida. They want all of these depositions to take place in one shot. So, there was discussion about cooperation and coordination with these other jurisdictions, which on the plaintiff’s side is something that we want to do. We want coordination cooperation because it benefits everybody at the end of the day.

So, that is basically what’s been discussed at the hearing. There is another hearing next month, on January 23, 2014, where additional issues will be resolved, especially these issues with the fact sheets and protective orders. If they can’t be resolved, the judge may issue some rulings on that date. We’re still early in the litigation. We still haven’t started obtaining discovery from the defendant yet, and the discovery that we’re talking about is typically documents, and there are millions of pages of documents that we need to get from the defendant.

That is sort of going to be the next battle that we fight this case. Defendants don’t like to give us documents and on the plaintiff’s side, we like to get all the documents that we possibly can. There are also disputes as to how those documents are going to be searched, what the defendants are going to do to get us those documents, and how they are going to be produced. We want them produced them in an electronic format so we can search them and look at them. We also went to defendants to search for them in a specific way. So, that’s where we are.

If you have a Stryker Rejuvenate hip, feel free to give us a call. We’d be happy to give you more details on the status of the litigation, or help you with a case that you may have against Stryker.

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