where there is a reasonable chance that a product will cause serious health
problems or death.” A Class I recall automatically stops manufacturing of
the device, and is supposed to (physically) recall back to the company all
of the worldwide inventory of the devices. Viewed pessimistically, it is an
admission that the company has been supplying a dangerous implant, and
is the first strategic move in the legal war that will ensue. DePuy had been
defensive even months before the 2010 recall, but the time had come to
stop the bleeding, and ready themselves for the storms of litigation.
Almost 100,000 patients had an ASR hip implanted between 2003 and
2010, and while many are satisfied and will receive a lifetime of benefit
from their operation, it is likely that tens of thousands of patients will
need to have their implant removed and revised. The total settlement costs
for DePuy could surpass $4 billion, and this will depend upon the results
of the bellwether cases in the Multidistrict Litigation (MDL) hearings.
MDLs are different from class action lawsuits, where a representative
group of plaintiffs file a complaint alleging that they have been harmed in
a similar fashion. Examples of class action lawsuits include runners who
received $8 million from Vibram relating to false claims regarding their
FiveFingers shoes, and investors who have sued corporations for
misstating earnings. Class action cases rarely go to trial, and consumers
often get jilted, with plaintiff attorneys often getting huge payoffs to drop
the case.
MDL trials are organized by a federal panel who transfers a small
handful of cases to one federal district court. The federal judge responsible
for the MDL court identifies the bellwether cases to be held throughout the
country, and appoints plaintiff and defendant attorneys to serve on various
committees. Plaintiff attorneys who specialize in MDL product liability
cases (e.g., involving implant or drug manufacturers), or securities fraud
cases covet MDL committee positions. Once on such a committee, an
attorney is only too proud to broadcast his committee credentials, hoping
to attract more even more plaintiffs. The bellwether cases, taken as a
whole, determine the settlement amount that will be offered to plaintiffs.
Injured patients who qualify for a settlement may choose to receive the
specified payout from the manufacturer, but patients sometimes choose to
sue the manufacturer individually if they conclude their case is
particularly compelling. While the results of some early bellwether cases
may result in jury decisions for the plaintiffs in the hundreds of millions,
marcin
(Marcin)
#1