Staff Writer
Columbus CEO

c.2013 New York Times News Service

Patients injured by a flawed hip implant sold by Johnson & Johnson have directed their anger at myriad places over the years. The regulatory system that allowed the product’s sale. The company that repeatedly denied problems with the device. Even the doctors who implanted the hips.

Now, some patients have found a new target for their ire: the legal system and the lawyers they hired to sue Johnson & Johnson.

At issue is the $2.5 billion plan announced last week to settle an estimated 8,000 lawsuits involving the all-metal hip device known as the Articular Surface Replacement or ASR.

Both Johnson & Johnson and those lawyers have praised the deal, describing it as an innovative plan that will compensate patients who had to have an added operation to have an ASR removed and replaced. After the lawyers’ fees, patients will get about $160,000 on average to compensate for their pain and suffering.

The plan also creates a $475 million pool for added payments to the most severely injured. And Johnson & Johnson agreed to pay claims from private insurers and agencies like Medicare seeking to recover the costs of operations and other medical treatments related to the device.

But some patients contend that the deal’s real winners are Johnson & Johnson and the plaintiffs’ lawyers. Those lawyers are set to receive about one-third of the settlement, or about $800 million. The single biggest chunk of those fees will go to the firms most involved with developing cases against Johnson & Johnson and negotiating the settlement; they will get a bonus of about $160 million.

Some patients like Van Fleming, a retired mortgage loan officer, wonder why they bothered to hire a lawyer. After published reports of ASR-related problems began to appear several years ago, lawyers flooded television stations and the Internet with solicitations seeking clients.

Fleming, 66, said he believes his lawyer spent about $400 on filing fees and from $2,000 to $3,000 to get copies of his medical records. Lawyers like Fleming’s who were not involved in settlement talks could walk away with $90,000 a case, and some firms, by advertising aggressively, gathered hundreds of claims.

“I don’t think it is fair at all,” said Fleming, who lives in Greenville, N.C.

Several patients like Celeste Laney, a former occupational therapist who lives in Albuquerque, N.M., added that it was impossible to know what their claims might be worth if they went forward because the only two ASR cases that went to trial ended with wildly disparate outcomes. They also expressed dismay over several elements of the plan, saying they appear to favor Johnson & Johnson at the expense of the injured.

Some patients will see their payouts reduced based on their age and weight, and whether they smoked. In addition, claimants who had an ASR for more five years will get $25,000 less for each additional year they had the device before its replacement.

“I’m not taking it. It’s a joke,” said Laney.

Several lawyers involved in the plan said that they anticipated patients like Laney and Fleming may appreciate the settlement more once they have a chance to review its details. Those lawyers added that they were eager to get funds to ASR patients, some of whom have taken loans from legal firms to cover their living expenses.

One of the plaintiffs lawyers involved in the settlement, Ellen Relkin, said her firms and others spent millions of dollars preparing cases for trial. She added that she and other lawyers had also reviewed the medical files of thousands of ASR patients and had a good sense about the range of their injuries and needs.

“The settlement provides certainty and payment within a short period of time,” Relkin said in a statement

The ASR — which was implanted in 93,000 patients, about one-third of them in the United States — ranks as one of the most-flawed medical implants in recent decades. The device’s ball and cup components, both of which were made of metal, rubbed together as a patient moved, producing shards of metallic debris that destroyed tissue and bone.

The DePuy Orthopaedics division of Johnson & Johnson estimated in an internal document in 2011 that the device would fail within five years in 40 percent of patients. Traditional artificial hips, which are made of metal and plastic, typically last 15 years or more before requiring replacement.

DePuy officials have insisted that they acted properly in handling the device, including waiting until 2010 to recall it. However, internal company documents show that company officials were warned years before by their own consultants that the device was so problematic they would not use it in their patients.

Several lawyers involved in the case said the plan will most likely appeal to patients who did not have any complications after the device’s removal, a group presumed to comprise the vast bulk of claimants.

One such patient, Paula Laverty of Cape Elizabeth, Maine, said the basic payout seemed to be reasonable.

“I have been fortunate in my recovery,” Laverty wrote in an email.

That has not been the case for other patients like Laney. The operation to replace her ASR set off a series of procedures that have left her disabled, unemployed and struggling to walk with a cane, she said. In the process, she lost her health insurance.

“I am in pain 24 hours a day,” said Laney. “My main concern is my health.

Lawyers say that the $475 million pool in the settlement will be used to supplement the basic payouts to patients like Laney. Along with patients who had to have repeated operations, extra payments will also be available to patients who developed infections, experienced joint dislocation or had other problems related to a procedure like a heart attack or a blot clot.


The size of such payments will be determined by how many patients qualify for special funds, a group that plaintiffs’ lawyers estimate at 10 percent of claimants. Also, the estimated value of the settlement — $2 billion for basic payouts and $475 million for the special fund — is predicated on 8,000 patients’ taking the deal.

The size of both pools is prorated based on patient participation. For example, the values will fall by 12.5 percent if 7,000 patients take part in the settlement and rise by 12.5 percent if 9,000 patients do.

Roughly 4,000 ASR patients who have filed claims against Johnson & Johnson but have yet to have a replacement procedure will not qualify for the plan.

Johnson & Johnson can walk away from the settlement if fewer than 94 percent of eligible plaintiffs participate.


Patients like Laney who are unhappy with the plan may have few alternatives. They are unlikely to see a courtroom for years, if ever, and there are no guarantees that Johnson & Johnson will settle their claims for more money, lawyers said.

Relkin said she anticipated that 96 to 99 percent of the several hundred claimants her firm represents will participate in the settlement. However, another lawyer who spoke on the condition of anonymity, said that he planned to recommend that clients who had potentially high-value claims stay out of the settlement and take their chances, either in court or in separate deals with Johnson & Johnson.

“I think that is about 10 percent of my clients,” that lawyer said.