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Biomet settles hip-replacement litigation

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The most serious cases from among more than 950 patients around the nation who claim they were harmed by a Warsaw company’s implanted hip-replacement devices will share in a settlement expected to exceed $100 million, according to an attorney involved in the case.

Warsaw-based Biomet Inc. and plaintiffs in mass-tort multidistrict litigation submitted a settlement agreement Feb. 3 to Judge Robert L. Miller Jr. of the U.S. District Court for the Northern District of Indiana in South Bend.

biomet-hip-replacement-1col.jpg An x-ray shows a Biomet metal-on-metal replacement hip that is the subject of multidistrict litigation in federal court. (Submitted photo)

The case, In Re: Biomet M2a Magnum Hip Implant Product Liability Litigation, 3:12-MD-2391, was initiated by patients who received implanted Biomet M2a Magnum or M2a 38 hip replacement devices that had metal-on-metal ball-and-socket parts that they alleged resulted in a variety of problems.

In the most serious cases, the implant had to be replaced or a “revision” surgery was required to remedy injuries that ranged from shed metal that caused toxic reactions to dislocation or failure of the devices.

Patients who required revision surgery each will be entitled to a base payment of $200,000 under the settlement, which may be discounted if the surgery was required after a significant number of years. The exact number of claims isn’t known, nor is the potential settlement pool, because settlement came just as discovery of claims was proceeding.

“We’re very pleased” with the settlement, said Indianapolis attorney Robert Dassow of Hovde Dassow & Deets LLC, local liaison for the plaintiffs steering committee, who confirmed the settlement total is likely to exceed $100 million.

“Essentially, anybody that had a revision surgery and had one of the particular metal-on-metal devices will be compensated under the settlement,” he said.

Biomet doesn’t admit wrongdoing or concede plaintiffs “suffered any cognizable injury” in the settlement.

“Plaintiffs and Biomet are mindful of the uncertainties engendered by litigation and are desirous of settling and compromising their differences,” the settlement says.

“Biomet is pleased to have reached this settlement and have the MDL resolved,” the company said in a statement. “Biomet appreciates the guidance provided by Judge Miller to bring this litigation to an expeditious and efficient resolution.”

Dassow said Biomet also has agreed to mediate the cases involving plaintiffs most seriously harmed, probably fewer than 20 implant recipients. Those mediations are scheduled to be completed by December 5, and individual cases that aren’t settled will be remanded.

Under the settlement, plaintiffs will have until April 15 to file a claim to join the mass tort. Patients with problems that didn’t require revision surgery will have their claims stayed until the revision claims are settled. As of Feb. 3, 237 plaintiffs were grouped as non-revision patients, meaning more than 700 may be in the revision group. Based on a calculation of $200,000 per revision plaintiff, the total pool for revision cases alone could exceed $140 million.

Ninety percent of the revision group or two-thirds of the mediation group must agree to the terms before Biomet moves an initial payment of $50 million into escrow, according to the settlement.

Miller set a status hearing for April 24, after the deadline passes for plaintiffs to join the mass tort. By June 13, all plaintiffs must file preliminary disclosure forms with the court.

The forms will disclose the nature of their claims and the extent of alleged injuries from the implants, and their claims will place them on either the revision or non-revision track.

Assigned to Miller in October 2012, Biomet plaintiffs’ claims were designated a mass tort action because the problems were deemed related to product-liability but not common enough to constitute a class.

The Food and Drug Administration in 2013 reported concerns about hip implants designed with metal-on-metal parts after convening an advisory panel a year earlier.

Chiefly, the joint devices may release metal debris when the socket and ball rub together, and metals such as cobalt and chromium can shed and be absorbed into the bloodstream affecting organ function or cause local infections, according to the FDA.

Of 33,394 device problems the agency tracked with the M2a Magnum and significantly similar devices, metal-shedding was most common. Rarer reported problems included difficulty standing and walking and loosening of the replacement hip joint.

“Different people will react to these metal particles in different ways,” the FDA stated last year. “At this time, it is not possible to predict who will experience a reaction,” or the type of reaction.

Biomet, a privately held company, claims in its marketing materials that in lab tests “all-metal components demonstrated a 99 percent reduction in wear over conventional polyethylene (plastic) components.”

But after a study on British patients, the medical journal The Lancet reported in 2012 that 6.2 percent of metal-on-metal hip implants required revision surgery within five years, a rate more than three times higher than for plastic-on-metal implants.

The United Kingdom and some other nations later recommended annual blood test monitoring for patients who received metal-on-metal hip replacements. A U.K. registry showed that after seven years, about 15 percent of patients who received metal-on-metal hip replacements required revision surgery.

The FDA stopped short of advising testing for metal-on-metal hip implant patients who show no symptoms. The agency did, though, recommend that patients follow up with their surgeons every year or two to monitor for any hip-status changes.

“The FDA will continue to gather and review available data on currently marketed metal-on-metal hip implants and will provide updates as necessary to patients and health care providers,” it said.

Prior to the settlement, Miller in December indicated that a few representative cases where patients required revision surgery would be among those selected for the first bellwether trials in June 2015.

The case is one of only two active multidistrict litigation cases in Indiana federal courts and is among 67 current multidistrict product liability cases nationwide, according to a mid-January report of the U.S. Judicial Panel on Multidistrict Litigation. Six of those cases involve hip-replacement product liability claims; six others involve claims of faulty pelvic-repair systems.

The panel referred the case to Miller’s court even though plaintiffs and defendants proposed the cases be heard elsewhere. “Biomet itself is based in nearby Warsaw, Indiana. With many of the relevant documents and witnesses likely found there, the district should be convenient for Biomet,” the panel ruled.

The Biomet plaintiffs steering committee is led by co-counsel Thomas R. Anapol of the Anapol Schwartz firm in Philadelphia and W. Mark Lanier of the Lanier Law Firm P.C. in Houston. Biomet is represented by lead defense counsel John D. Winter of Patterson Belknap Webb & Tyler LLP in New York.

Settling plaintiffs would be subject to a provisional holdback of no more than 6 percent of individual recovery for common benefit attorney fees and costs under the agreement. Biomet also agrees to deposit $6 million into a fund for common attorney fees when the settlement is approved by the required number of plaintiffs.

Meanwhile, another Indiana company is defending 150 claims in multidistrict litigation. Bloomington-based Cook Medical Inc. is facing mass tort cases involving allegations of faulty pelvic-repair implants. Bellwether trials in the Southern District of West Virginia are scheduled to begin in October in In Re: Cook Medical, Inc., Pelvic Repair System Products Liability Litigation, MDL 2440.

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  1. Am I the only one who sees that the City is essentially giving away the MSA site AND giving millions to build new buildings on the site when this site would be the perfect place for the Justice Complex? Across from City-County, check; keeping it centrally located, check, etc. It's my understanding that the GM site must be purchased by the City from Motors Liquidation Company. STOP WASTING WHAT WE ALREADY HAVE AND OUR TAX DOLLARS! The Ballard Administration has not been known for it's common sense...never voted for him and never will!

  2. This guy sounds like the classic molester/manipulator.

  3. Louis D. Brandeis was born in 1856. At 9 years of age it would have been 1865. The Brandeis family did not own slaves. My source Louis D. Brandeis: A Life, by Melvin L. Urofsky.

  4. My name is Matthew Lucas Major, I recently went through a jury trial in Bloomington , In. It was the week of Feb 19-21. Although I have been incarcerated since August 5, 2014. The reason I 'am writing to you sir is on the 21 of February the jury came in with a very excessive and wrongful verdict of guilty on 6 child molesting charges against my daughter who was 9 at the time I was accused. I also had 2 other Felonies one of Intimidation and 1 of Sexual Vicarious Gratification. Judge Marc Kellam on the second day of trial gave me a not guilty on those 2 felonies. The jury was sent out during that time and when brought back Judge Kellam told them to not concern themselves with the 2 Felonies that he ruled on them. They were told to not let evidence they had already heard influence there verdicts. I never in my life touched any child sexually and definitely not with my own daughter. When I was arrested Detective Shawn Karr told me I would be convicted guilty just on my daughters word even without evidence. That's just what happened. my public defender did me so wrong he never once proved to the court and jury all the lies the child told, and Jeremy Noel my public defender could of proven the lies easily. The stories in Serenity's depositions and Forensic interview changed and were not consistent as Prosecutor Darcie Fawcett claimed they were. Yet my attorney never mentioned that. The facts that the child accused me of full penetration in her vagina and rectum was proven lies. Doctor Roberta Hibbard of Riley hospital in Indianapolis confirmed Serenity's hymen intact, no scars, no tearing, no signs of rape to her. Yet my attorney didn't use that knowledge . the DNA was all in my favor. I tell you I will spend my entire life in prison going through rape and beatings etc. even Judge Kellam abused his authority by telling the jurors to listen and believe what the prosecutors side in evidence like my daughters testimony. In one interview with the detectives my daughter got flustered with her mom and said on camera " I'm saying what you told me to mom"!! Yet Mr. Noel said nor did anything to even resemble a defense attorney. Judge Kellam allowed edited version of a taped conversation between the child and her mother. Also Judge Kellam allowed the Prosecutor too bring in to my case a knife found under my seat, the knife wasn't part of my case. She was allowed by my attorney and the judge to put a huge picture of it on the screen and huge picture of my naked privates in a full courtroom and open court. Ms. Fawcett says to jury see how easy Mr. Major could reach the knife and cut his Childs throat. Even though I had no weapons charge against these cases. This gave the jurors prejudice thought against me thinking I threatened her with that knife and how scared she would of been knowing i could get it and kill her. On my sentencing court March 19, 2014 my public defender told Judge Kellam he wish to resign from being my attorney and wished for the court to give me outside council to file a error to trial or appeal. We were denied. Now after openly knowing my public defender don't want to represent me he has to. Well when as parents we make our kids clean a room when they really don't wish to, well the child will but don't mean she will do a good job, that's where I'm at with Mr. Noel. please dont ignore mine and my families pleas for your help . we have all the legal proof you could need to prove Im innocent. Please dont make my spend years in prison innocent when you can fix this wrong. Im not saying Im a perfect man or that I was a perfect dad to my 2 children none of us are. Ive made some bad choices in life and I paid for them. But I didnt ever touch or rape my daughter . I love my children with all my heart. And now through needing attention and a ex-wife who told my granny several times she wish she could put me in prison to get me out of their lives. Well my ex finally accomplished her goal. Sad part is she is destroying our daughter with all this horrific lies and things she taught my daughter to say. My daughter will need therapist to ever hope for a chance of a normal life after what she had done to her by her mom and their side of the family. My daughter told everyone even on stand she had a dream months before i supposedly molested her in this dream I was molesting her and when I finally did it matched her dream perfectly. She admitted to watching movies about little girls being molested and watching U-Tube videos about child molesting all before it happened supposedly to her. Doesn't that sound very unusual that a non molested 9 yr old would need to know so much about being molested? The only reason I could think a 9 year old would need so much information is to be prepared to know what to say and be able to say how it felt what took place etc.. So when questioned by authorities she would be prepared. And there again sir if a parent is pre grooming a 9 year old child she would need intimate details . Like telling her daughter about a couple moles on my private area. The child admitted to sneaking my cell and looking many many times at nudes of me and my girlfriend even one where my penis was entering my girlfriends vagina. In that picture my moles are obvious. Yet when prosecutor showed everyone in court my privates and pictures of the moles she said the only way the child would know about them is if she saw them for herself. My attorney once again said nothing about the pictures my child saw. Or could a ex-wife be able to describe my moles to help her case against getting rid of me? I beg you help me. This is my very existence. Ive lost everything , a good job, a wonderful girlfriend, my freedom, but worse thing Ive lost is my children. They were my reason to get up every morning and strive to be better. The wonderful bond I had with my Serenity is gone. After this I would be afraid to even hug her for fear of what next can they do to me. I'm not afraid to tell you I sit here in this cell and try to hold back my tears. Everyone knows you cant show weakness in prison. My life has already been threatened here at Wabash Valley Prison. After only 3 days of arrival. I was tricked into signing a waiver now Im in G Block General Population with 6 child molesting felony charges. Mrs. Hart as a 18 year old I almost died hooked to machines in hospital almost 1 month and now I know that fear was childish compared to this . I cant help but put emotions in this, after all Mrs. Hart Im human and God help Me I never been more afraid in my life. I didnt hurt my little girl I didnt touch her sexually. As much as it shreds me and fills my mind what Im facing I worry more about my mom and granny because of their great love for me mam they are suffering so deeply. I aint done this things but my loved ones suffering right along beside me and If you take my case you will be in essence freeing them also. I sent momma this letter and asked her to email it to you. I'm scared I have been done so unjustly by our legal system and I need you to fix this and give me freedom. I ask you please don't just ignore my pleas. Here in America its nice to be able to trust our legal justice system, well they destroyed my and my loved ones trust in our justice system . And I'm trusting in You !!! My entire family is suffering this nightmare with me. My 77 year old granny had a stroke and isn't doing so well. My single mother that raised 3 kids alone is dying from Lupus and since my arrest has stayed so sick and weary. Our lives torn to peices by a government I was taught I could trust in. my momma has tried so many innocent project and wrongfully accused and cant get anywhere. please please help me. A quote from the late Nelson Mandela: To be free is not merely to cast off ones chains, But to live in a way that respects and enhances The Freedom Of Others. I have Faith in you and your clinic to cast my chains off and give me freedom I do deserve as a wrongfully accused Man, son, brother, father, friend. Matthew Major DOC# 246179 Cause # : 53c02-1308-FA-000779 God Bless you. Please contact me with your decision so I know you made a life changing decision for me , just please at least write me so I know you care enough about your citizens to respond to cries for your help. You can speak openly with my mother Charlotte Spain (828) 476-0406: 71 Lakeview Dr. Canton, NC 28716 Thank You Matthew Major I know yall get thousands of request and inmates claiming innocence, and each person who are innocent deserve to have organizations like yours willing to fight for them and I give yall so much Thanks and I thank God everyday yall are out there caring enough to help free the innocents. Since discovering firsthand how easily lives and families can be destroyed by Poor Defense attorneys not doing their job . And Prosecutors allowed to do as they please in court

  5. Frankly, it is tragic that you are even considering going to an expensive, unaccredited "law school." It is extremely difficult to get a job with a degree from a real school. If you are going to make the investment of time, money, and tears into law school, it should not be to a place that won't actually enable you to practice law when you graduate.

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