What is the issue?
In August 2010, Depuy, a US conglomerate, owned by Johnson & Johnson “recalled” some of its medical products. The recall included the Depuy ASR XL Acetabular System, a type of artificial human hip.
These hips are fitted to consumers in the course of major surgery in hospitals. The recall was of the unused products; the used products were in patients. In fact, many of the hips were failing early and the patients were undergoing early, avoidable, difficult and dangerous revision surgery, involving pain and suffering from the failed hips and the surgery.
Often the physical failure of the hip is itself preceded by the release of chromium and cobalt ions into the patient’s bloodstream; these come from the abrasion of one part of the hip on another, wearing down the metal surfaces and releasing them into the patient’s body.
What happened then?
These facts and circumstances led to the commencement, around the world, of many legal claims for compensation and costs against the Depuy conglomerate, including in Ireland.
In the US, many of those claims were consolidated, effectively, in Multi-District Litigation (“MDL”) in Ohio.
On 19th November 2013, the plaintiffs’ lawyers and the defendants’ lawyers settled the MDL.
What was the MDL?
The litigation was not a class action. The Federal court system centralised all Federal US cases arising from the failure of the Depuy artificial hips in the Federal court in Ohio. So, every plaintiff in the Federal court system had his or her case transferred to Ohio for a hearing, potentially.
What actually happened?
The lawyers for these plaintiffs co-operated in selecting cases to be brought to trial in Ohio. As the date for the hearing of the first trial approached, the lawyers made progress in the negotiation of a settlement and concluded it on 19th November 2013. See the terms HERE.
What does it mean for Irish plaintiffs?
The settlement expressly covers only US litigation by US citizens. An Irish plaintiff, even in a US claim, will not be able to accept the settlement terms with Depuy, as a right. This is even more the case if the Irish plaintiff has issued, or intends to issue, proceedings outside the US, in Ireland, say.
Every Irish plaintiff must still, unless Depuy admits liability (or settles), prove his or her case against Depuy. The facts of each case will determine when and if time begins to run against Irish consumers of Depuy products, within which to issue proceedings. (Claimants should urgently consult a solicitor to resolve this question). If time has expired it is inconceivable that Depuy will settle such late claims.
Where the claim is not late, a plaintiff might reasonably infer that Depuy will settle such claims in Ireland; after all, the MDL settlement is valued in billions of dollars and outcomes, like that, imply liability by defendants like Depuy, do they not?
There is no certainty that Depuy will act in that fashion and Irish claimants should urgently seek advice from a solicitor.