Bellwether Categories Established for Stryker Rejuvenate Injury Lawsuits

As the litigation involving injuries associated with the recalled Stryker Rejuvenate hip replacements continues, the U.S. District Judge presiding over the lawsuits has indicated that a pool of cases being prepared for early trial dates will be divided into different categories based on the date of the hip implant, specific product received and problems experienced by the plaintiffs.

Howmedica Osteonics currently faces more than 2,000 Stryker Rejuvenate injury lawsuits filed by individuals throughout the United States who received a hip replacement involving the modular femoral neck-stems, which were recalled in July 2012 amid reports that the device is prone to fret, corrode and fail within a few years after it is implanted.

Unlike traditional hip implants, which feature a single femoral component, the Stryker Rejuvenate and ABG II contained a modular neck-stem, with two pieces that fit inside of each other to allow the surgeon to customize the length of the femoral component based on the patient. However, the design has been linked to an increased risk of problems that may result from the release of microscopic metal debris as the chromium-cobalt neck rubs against the titanium femoral stem.

Although hip implants are typically expected to last 15 to 20 years, a Stryker Rejuvenate recall was issued less than two years after the design was introduced, and the number of product liability lawsuits filed nationwide continue to increase as problems develop among the estimated 20,000 patients who received the device.

Approximately 825 of the cases are currently pending are filed in the federal court system, where the litigation is being overseen by U.S. District Court Judge Donovan Frank in Minnesota federal court. In addition, about another 1,200 complaints are pending in New Jersey state court, which is the home state for the medical device manufacturer.

Stryker Rejuvenate Bellwether Trials

As part of the coordinated pretrial proceedings in the federal court system, a small group of cases are being prepared for early trials, known as “bellwether” cases. These lawsuits are designed to be representative of other complaints in the litigation, and the outcomes are designed to help gauge how juries may respond to certain evidence and testimony that is likely to be similar among a large number of cases.

On May 9, Judge Frank issued a pretrial order (PDF) that indicates these early test cases will be divided into five separate categories.

There are four categories for those who received Stryker Rejuvenate implants, and one for those who received the ABG II hip system, which is another implant involving the same design that was also recalled in July 2012. Very few of the injury lawsuits filed to date have involved the ABG II implant, with the vast majority involving Stryker Rejuvenate hips.

Of the categories involving Stryker Rejuvenate injury claims, the lawsuits will be divided by whether the plaintiff received the implant before or after January 1, 2011, and whether the revision was complicated or uncomplicated. Judge Frank previously determined that all of the bellwether cases will be restricted to plaintiffs who have had to undergo revision surgery to have the implants removed following catastrophic failure or complications that merited its removal.

According to an order issued in March 2014, it is expected that between three and five Stryker Rejuvenate bellwether trials will be scheduled in the MDL, with the first cases ready to begin during the summer of 2015. The categories are no indication of what order the cases will be prioritized, Judge Frank clarified this month.

Following the bellwether trials, if agreements are not reached to settle or resolve a large number of cases, Judge Frank may begin remanding hundreds of cases back to U.S. District Courts throughout the country for individual trial dates.

In Extremis Dispositions

The bellwether order came just two days after Judge Frank established procedures (PDF) that will allow plaintiffs suffering from severe health problems to preserve their testimony, in the event they are never able to attend their own trial due to health reasons or death.

Known as “in extremis” depositions, Judge Frank indicated that plaintiffs must provide a certification or affidavit from their doctor indicating that they are hospitalized, terminally ill or in hospice care because of their medical condition and are not likely to recover before the trial. Plaintiffs’ attorneys must provide defense attorneys with a copy of the plaintiffs medical records, and must also provide a release of records and a number of other necessary fact sheets.

New Jersey Mediation Efforts to Settle Stryker Rejuvenate Cases

In New Jersey state court, all Stryker hip lawsuits have been centralized before Superior Court Judge Brian R. Martinotti in Bergen County, where the cases is being coordinated as part of a Multi-County Litigation, or MCL.

In an attempt to see if Stryker Rejuvenate settlements may be reached before lengthy and expensive litigation, Judge Martinotti established a mediation process last year.

The first phase involved a group of 10 cases that were selected for early negotiations before a court-appointed mediator. One of those selected cases was delayed, but the parties were able to successfully resolve eight of the remaining nine cases following mediation efforts, Judge Martinotti reported in the order issued February 27.

Another group of cases are currently being selected for a second phase of mediation efforts, which will involve several cases where the plaintiffs are 78 years of age or older. The Court has already randomly selected five cases and plaintiffs have identified another five cases that will be part of this phase 2 mediation.