Plaintiffs Indicate Exactech Hip and Knee Settlements are “Nowhere Close”, In Urging Judge To Reject Request for Off-Record Conference

Late last month, the manufacturer of recalled Exactech implants asked a judge to halt the active litigation while parties discuss a potential global hip and knee lawsuit settlement.

Plaintiffs are asking the U.S. District Judge presiding over all Exactech knee replacement lawsuits and hip replacement lawsuits to reject a request by manufacturers of the recalled implants for an “off-record conference”, so that it can explain why all deadlines in the litigation should be paused while a global settlement is explored, indicating that the parties are “nowhere close” to reaching an agreement to resolve the claims.

There are currently more than 2,000 product liability lawsuits that have been filed since an Exactech recall was first issued in February 2022, involving defective packaging that caused certain plastic components to degrade and fail after they were implanted into patients. The recall impacted more than than 140,000 Optetrak, Optetrak Logic and Truliant knee replacement systems implanted in patients since 2004, as well as 1,500 components used in Exactech Vantage ankle replacements.

Similar packaging problems have also impacted Exactech Novation and Acumatch hip implants since 2008, which were recalled in June 2021. The Exactech hip recall was expanded in August 2022 to add another 40,000 joint replacements that may fail prematurely.

Given common questions of fact and law raised in the complaints filed throughout the federal court system, consolidated pretrial proceedings have been established before U.S. District Judge Nicholas G. Garaufis in the Eastern District of New York, where the parties are actively preparing a group of representative cases for early trial dates that are expected to begin next year. However, there are also Exactech lawsuits pending in Florida state court, where the first bellwether trial is expected to begin on October 7, 2024.

As part of the coordinated management of the federal litigation, the parties face a number of approaching deadlines to get the first cases ready to go to trial, which are expected to help the parties gauge how juries may to respond to certain evidence and testimony that will be repeated throughout the litigation.

While the outcome of these early bellwether trials will not have any binding impact on other claims, the average lawsuit payout would likely have a substantial impact on the amount Exactech must pay in any global hip and knee replacement settlement for individuals who received the defective implants.

Plaintiffs Reject Call for In Camera Conference

Late last month, defendants asked for an in camera (in chambers) conference to be held in the near future, to discuss a possible global Exactech hip and knee settlement agreement before the first trials begin, requesting a stay of all MDL deadlines in the meantime.

However, on March 29 plaintiffs’ attorneys sent a letter (PDF) to Judge Garaufis, urging him to reject the request. They argue there is no compelling reason for the court to yet be involved in these discussions, and no need for the litigation to be stayed at this point.

“Plaintiffs do not consent to an in camera, off-record conference. While such conferences can be productive under certain, limited circumstances, Plaintiffs have found no authority supporting conducting such conferences over the objection of one of the parties,” the letter states. “In fact, the authorities support the proposition that in the absence of agreement of all parties, conferences should be held in open court, on the record.”

The letter indicates that such a conference to discuss a potential settlement is currently not necessary, stating that the parties have had only limited negotiations, and are “nowhere close to reaching any proposed settlement.”

Unless the court agrees to pause all deadlines in the litigation, the parties are expected to identify a series of Exactech bellwether cases that will be eligible for early trial dates in April 2024.