most patients in MDL settlement decisions receive only hundreds of
thousands of dollars. The real windfall happens to the plaintiff attorneys,
especially the fortunate ones who are on the prized MDL committees and
who have the reputation for “getting patients the money they deserve.
Judge David Katz, of the Northern District of Ohio, was chosen as the
presiding judge over the MDL involving the ASR hip. Judge Katz selected
the bellwether cases in 2010, and the first case was scheduled to go to trial
in San Francisco in 2013, but shortly before trial, DePuy settled the case
for an undisclosed amount. In the first ASR case to actually go to trial, a
Los Angeles jury awarded a Montana man $8.3 million (for medical
expenses and for pain and suffering). DePuy won a case in Chicago shortly
after the Los Angeles defeat, but by the end of 2013, three years after the
worldwide recall, DePuy agreed to settle approximately eight thousand
qualified lawsuits in the United States for $2.5 billion after a meeting with
Judge Katz and the court-appointed committee of attorneys. DePuy also
agreed to set aside almost $500 million for added payments for severely
affected patients, and to pay claims from private insurers and Medicare for
costs associated with medical treatments and additional operations. All
told, DePuy and its parent company agreed to set aside $4,000,000,000 to
settle the ASR debacle. For a company whose total orthopedic business
that same year was $9.5 billion, a settlement that equaled almost half of
all orthopedic revenues, was shockingly costly.^31
Patients who hear of a $4 billion settlement must surely conclude that
their ship has come in; but after lawyers’ fees, patients will only receive
about $160,000 to compensate for their pain and suffering.^32 Lawyers in
America will have received about one-third of the settlement, or $800
million, with the chief negotiating attorneys and committee members
getting a bonus of $160 million dollars. For patients who unwittingly
found themselves ensnared in one of the biggest medical disasters in
American history, the frustration over a paltry payout is understandable.
Imagine enduring several failed hip replacement operations and getting a
check for $160,000, while some high-volume law firms got over $20
million while representing hundreds of clients, many of whom required
little additional legal work. Perhaps a more salient frustration among
injured patients is the sense of betrayal by the system—the implant
manufacturers, the FDA, the courts, the hospitals, and even, surgeons—
who seem not to be paying attention.