Plaintiffs Settle First Group Of Wright Metal-On-Metal Hip Lawsuits For $240M – Christopher P. Yuhl
11. 6. 16

After a hard-fought, almost 5-year battle in federal court in Atlanta, Georgia and in California state court, we are pleased to announce a settlement program that will resolve a significant number of claims against Wright Medical. Wright Medical has agreed to settle approximately 1,300 claims of certain Wright Medical metal-on-metal hip implant patient-claimants whose hips were revised at least 150 days and no more than eight years post-implant. There are approximately 2,300 pending claims involving Wright Medical’s Conserve, Lineage, and Dynasty metal-on-metal hips. Plaintiffs’ Leadership Counsel’s retained financial analysts have been evaluating Wright Medical’s ability to settle these cases for years. Based on that analysis, we believe that Wright Medical was not in a position to and therefore could not agree to settle the remaining claims involving revisions occurring after eight years or other cases that it deemed not qualified at this time. During the negotiations with Wright Medical, it was made clear that claims for revised Wright metal-on-metal hips that are not included in this settlement will be part of subsequent settlement programs.

The Wright Conserve Multi-District Litigation (MDL) was consolidated in February 2012 in federal court in the Northern District of Georgia before the Hon. William S. Duffey, Jr., United States District Judge. Additionally, a Judicial Council Coordination Proceeding (JCCP) petition was approved in May 2012 before the Hon. Jane Johnson, Los Angeles Superior Court Judge, consolidating California state-court cases involving Wright Medical hip replacement and revision matters, including Wright Medical’s Conserve, Lineage, and Dynasty hip implants. The Hon. Diane M. Welsh (Ret.), led the extended settlement negotiations and tirelessly worked with the parties for several years to help facilitate the settlement.

Wright Medical’s hip and knee division (OrthoRecon) was sold in January 2014, and the successor corporation has a defense that it did not inherit the liability. Our financial analysts’ review further indicated that Wright Medical’s ability to fund this settlement depended largely on insurance coverage and a bond issue

used, in part, to raise money for this settlement. Wright Medical has been engaged in litigation in Memphis with most of its insurance carriers and recently finalized an agreement with 3 of the carriers. It remains in litigation or coverage disputes with its remaining carriers. In light of our analysis of Wright Medical’s financial condition, this is a timely and meaningful settlement, offering $170,000 to claimants who had the monoblock Conserve Cup, the device with the most frequent failures, and $120,000 to those who had the metal-liner Dynasty and Lineage devices. An additional, but capped, limited fund is also available for claimants who suffered discrete and defined claims of extraordinary injury. More importantly, the settlement program calls for pre-qualification, without registration, coupled with a very simple administrative process for claimants not pursing extraordinary injury claims that will lead to expeditious payments expected to be largely complete by summer 2017. Counsel for eligible claimants will be notified of their pre-qualification by February 3, 2017.

Plaintiffs’ Leadership Counsel consists of Raymond P. Boucher of Boucher LLP in Woodland Hills, California, ray@boucher.la / 818-340-5400; Michael L. McGlamry of Pope McGlamry, P.C. in Atlanta, Georgia, mmcglamry@pmkm.com / 404-523-7706; Helen Zukin of Kiesel Law in Beverly Hills, California; Peter Burg of Burg Simpson in Englewood, Colorado; Christopher Yuhl of Yuhl Carr, LLP in Marina del Rey, California; Sean Jez of Fleming Nolen & Jez, L.L.P. in Houston, Texas; and Ellen Relkin of Weitz & Luxenberg, P.C. in New York, New York.

Georgia Federal Court Sets First Bellwether Trial Against Wright Medical For Defective Hip
9. 2. 16

On August 31, 2015, United States District Judge William S. Duffey Jr., issued a 123-page order in the first bellwether trial for the consolidated Multi-District Litigation alleging that the Wright Medical Conserve metal-on metal hip replacement devices are defective. Wright faces claims in over 2,000 cases now pending between the MDL in the Northern District of Georgia and the concurrent proceeding in Los Angeles Superior Court, JCCP 4710. Christopher P. Yuhl of YUHL CARR, LLP is a member of the leadership group of attorneys spear heading the litigation.

The Court denied Wright’s Motion for Summary Judgment as to Plaintiff Robyn Christiansen’s claims for defective design, fraudulent misrepresentation and concealment and allowed punitive damages for this conduct to remain in the case. The court rejected Wright Medical’s claim that the Medical Device Amendment to the Food Drug & Cosmetic Act preempted the design defect claims. As to the specific device involved, the Conserve metal-on-metal total-hip device, the Court found that Wright’s decision not to submit the device via Pre-Market Approval “denied the FDA the opportunity to determine if the Conserve implant provided a ‘reasonable assurance of safety and effectiveness,’ and denied the FDA the opportunity to scrutinize and evaluate the device…” Instead, the evidence demonstrated that Wright chose only to submit a 510(k) short form clearance application to the FDA. The Court further rejected Wright’s argument that Comment K to §402A of the Restatement of Torts should apply to bar the plaintiffs strict liability design-defect claims, citing evidence that the Conserve metal-on-metal hip device was not made as safely as it could have been and was not properly marketed.

 

Although the Court held that the implanting surgeon’s failure to read the package insert ruled out the defective warnings claims, it also concluded that the evidence demonstrated questions as to Wright Medical’s active misrepresentations to and concealment of material information from the implanting surgeon. Thus, whether Wright Medical acted fraudulently and whether such fraudulent conduct supports an award of punitive damages against Wright Medical remains a question for the jury.

The Court also denied the motion for summary judgment by parent company Wright Medical Group, Inc. which argued that it had no involvement with the Conserve metal-on-metal hip devices and thus the court lacked personal jurisdiction. The Court found this “no involvement” argument was based entirely on a hearsay declaration by Wright Medical representative Debbie Daurer that failed to present competent, admissible evidence based on personal knowledge. The Court found the submission of Ms. Daurer’s under-oath declaration to be “troubling.” It concluded that Wright Medical Group’s SEC filings and other documents detailed Wright Medical Group’s involvement with the Conserve metal-on-metal hip device and that the personal-jurisdiction argument was untimely.

 

As to the multiple Daubert motions directed at Plaintiff’s experts, , the Court found on the whole that the expert evidence proffered by the Plaintiff, including her treating physician, another expert orthopedic surgeon, a pathologist, a biomedical engineer, a mechanical engineer, and a regulatory expert were reliable and could be considered by the jury. The Court excluded limited opinions and minor experts in the areas of toxicology, biostatistics and wear-volume calculation only.

Lead Plaintiff’s MDL Counsel Mike McGlamry, of Pope McGlamry, P.C. stated: “Overall, we are very pleased with the Court’s thorough and timely opinion which allows us to move ahead with the trial. Ms. Christiansen looks forward to presenting her case to a jury now that we know Plaintiffs’ claims against the Wright Medical defendants will be considered by the Court.”

Jury Awards Record $11 Million in First Bellwether Conserve Hip Implant Trial
11. 25. 15

ATLANTA, GA – A verdict in favor of plaintiff for $11million was handed down by the jury on November 24, 2015 against Wright Medical Technology Inc. for injuries caused by the failure of defendant’s Conserve Hip Implant System. United States District Judge William S. Duffey, Jr., accepted the verdict after a two week trial. The trial team earning the record judgment were all part of the leadership group designated to both the Federal Multi-District Litigation and the California Joint Coordinated Case Proceeding pursuing nearly 2000 claims against Wright for injuries from the devices.

 

Christopher P. Yuhl of YUHL | CARR, LLP a member of the plaintiff’s national leadership group, was one of several lawyers who prepared the case and participated in the Atlanta trial which resulted in what appears to be a precedent setting award of punitive damages against a hip manufacturer for a similar device.

 

Despite tireless efforts to settle the litigation by global settlement beginning in May 2014, which was followed by 4 mediations over a 6 month period in Philadelphia, and a continuance by Judge Duffey of the original March 2015 trial date, the litigation could not be resolved. By August, without a resolution in sight, the court ruled on the dispositive motions and set the matter for Trial on November 9, 2015.

 

“The plaintiffs steering committee worked extremely hard over the past 2 years to get the cases settled so our injured folks could move on with their lives but it clearly was not something that could happen without a jury verdict. So, the lawyers and staff from our leadership firms simply put our collectively heads down and pushed ahead through many travel miles and hard-fought days to bring this first case to a jury. I am really proud of the talent in our trial team who dedicated themselves to this cause – it remains a sincere privilege to work with them all.”

 

The second bellwether trial is slated to begin in March 2016 before the honorable Jane Johnson in Los Angeles Superior Court.

$20,000 DONATION TO FUND ART PROGRAM AND FIELD TRIP FOR 1,400 CHILDREN
7. 15. 14

Christopher P. Yuhl, Yuhl | Carr partner and TheLA25 philanthropy group member, was honored to participate in the delivery of a $20,000 check to the Redondo Beach Education Foundation as part of the TheLA25 Foundation’s ART 90266 event held at the Shade Hotel in Manhattan Beach on April 24, 2014. The event, now in its third successful year, brought 250 guests and artists together for a live auction of more than 35 fantastic art pieces donated by well know local artists and collectors – painters, photographers. and sculptors. The money raised will fill the gap in funding cutbacks in the arts so that more south bay school children can continue to explore their artistic talents and expand intellectual aptitude. Several hundred school children will have new art supplies, and art teachers will keep art classrooms vibrant. The funding culminates in a wonderful field trip to the Los Angeles County Museum of Art for 1400 students! As ART90266 continues to grow each year, The LA25 Foundation is working toward establishing an “Artist in Residency Program” so that professional artists can work first hand in the classroom, further enhancing the overall benefit of art education for school children all across Los Angeles County.

TheLA25 Foundation retained the talents of Hollywood Shorts Film Company to record the auction, then follow teachers and students over the course of the year, filming the experience and impact of the ART90266 donation. The film documents the kids as they learn art history in the classroom, their bright faces as they discover hidden talents, and the excitement of touring the art museum, connecting their classroom learning with famous pieces and artists they know well. The interactive experience from classroom to museum is a priceless experience for the teachers, children and parents. This documentary, entitled “Room 19”, had its premiere in April 2014 and has been invited to air in several children’s film festivals across the US and Europe. The real impact of TheLA25 Foundations’ work to raise money comes to life in this film – the short can be viewed here.

Yuhl | Carr is very proud of Chris’ work with LA25 and how it continues to represent the firm’s philosophy and our belief in giving back to the community in ways that can have an immediate positive impact on our future leaders– the children.

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