ILNews

Biomet settles hip-replacement litigation

Back to TopCommentsE-mailPrintBookmark and Share
Indiana Lawyer Focus

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.

ADVERTISEMENT

  • Terri
    My problem of understanding is it says your are entitled to this 200,000. well then why does Biomet makes lowball settlement offers to people who have gone through hell because of having to get there bad hip revised and they Biomet wants you to settle for an offer of $25,000. That does not even begin to cover the costs of other issues associated with having to get there hip out due to high metal levels... Something is wrong here..
  • attorney fees
    I was wondering about the 6 million put aside for common attorney fees?does that mean that if you are a plaintiff your attorney fees will be partially covered?

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. Where may I find an attorney working Pro Bono? Many issues with divorce, my Disability, distribution of IRA's, property, money's and pressured into agreement by my attorney. Leaving me far less than 5% of all after 15 years of marriage. No money to appeal, disabled living on disability income. Attorney's decision brought forward to judge, no evidence ever to finalize divorce. Just 2 weeks ago. Please help.

  2. For the record no one could answer the equal protection / substantive due process challenge I issued in the first post below. The lawless and accountable only to power bureaucrats never did either. All who interface with the Indiana law examiners or JLAP be warned.

  3. Hi there I really need help with getting my old divorce case back into court - I am still paying support on a 24 year old who has not been in school since age 16 - now living independent. My visitation with my 14 year old has never been modified; however, when convenient for her I can have him... I am paying past balance from over due support, yet earn several thousand dollars less. I would contact my original attorney but he basically molest me multiple times in Indy when I would visit.. Todd Woodmansee - I had just came out and had know idea what to do... I have heard he no longer practices. Please help1

  4. Yes diversity is so very important. With justice Rucker off ... the court is too white. Still too male. No Hispanic justice. No LGBT justice. And there are other checkboxes missing as well. This will not do. I say hold the seat until a physically handicapped Black Lesbian of Hispanic heritage and eastern religious creed with bipolar issues can be located. Perhaps an international search, with a preference for third world candidates, is indicated. A non English speaker would surely increase our diversity quotient!!!

  5. First, I want to thank Justice Rucker for his many years of public service, not just at the appellate court level for over 25 years, but also when he served the people of Lake County as a Deputy Prosecutor, City Attorney for Gary, IN, and in private practice in a smaller, highly diverse community with a history of serious economic challenges, ethnic tensions, and recently publicized but apparently long-standing environmental health risks to some of its poorest residents. Congratulations for having the dedication & courage to practice law in areas many in our state might have considered too dangerous or too poor at different points in time. It was also courageous to step into a prominent and highly visible position of public service & respect in the early 1990's, remaining in a position that left you open to state-wide public scrutiny (without any glitches) for over 25 years. Yes, Hoosiers of all backgrounds can take pride in your many years of public service. But people of color who watched your ascent to the highest levels of state government no doubt felt even more as you transcended some real & perhaps some perceived social, economic, academic and professional barriers. You were living proof that, with hard work, dedication & a spirit of public service, a person who shared their same skin tone or came from the same county they grew up in could achieve great success. At the same time, perhaps unknowingly, you helped fellow members of the judiciary, court staff, litigants and the public better understand that differences that are only skin-deep neither define nor limit a person's character, abilities or prospects in life. You also helped others appreciate that people of different races & backgrounds can live and work together peacefully & productively for the greater good of all. Those are truths that didn't have to be written down in court opinions. Anyone paying attention could see that truth lived out every day you devoted to public service. I believe you have been a "trailblazer" in Indiana's legal community and its judiciary. I also embrace your belief that society's needs can be better served when people in positions of governmental power reflect the many complexions of the population that they serve. Whether through greater understanding across the existing racial spectrum or through the removal of some real and some perceived color-based, hope-crushing barriers to life opportunities & success, movement toward a more reflective representation of the population being governed will lead to greater and uninterrupted respect for laws designed to protect all peoples' rights to life, liberty & the pursuit of happiness. Thanks again for a job well-done & for the inevitable positive impact your service has had - and will continue to have - on countless Hoosiers of all backgrounds & colors.

ADVERTISEMENT