When thousands of contaminated hip and knee implants made their way from the manufacturer’s plant into hospitals, the situation for thousands of patients suffering from hip injuries became even worse.
Following the manufacturing process, residue of a mineral oil-based lubricant stayed on the shell of the implant. The shell’s coating was supposed to allow the bone tissue to fuse with the implant, but this was inhibited by the lubricant residue.
Bonding didn’t occur properly, and this led to severe patient injuries. The only solution was a subsequent surgery. Thousands of patients complained of severe pain in their thighs and groin area due to the defective implants. The company recalled 30,000 hip implants, of which approximately 17,500 were already implanted in patients.
“The manufacturing company understood that the implants might be contaminated, but went ahead and put them out on the market;’ says Luke Ellis of Gillin Jacobson Ellis & Larsen.
“The patients, who were mostly elderly and already sick, were forced to go through another risky hip operation to remove the contaminated implant. Some even died in the process:’ The company acknowledged the defective hip implants, and accepted responsibility for the injuries to patients.
Ellis garnered a $9.2 million for the 35 clients that he represented in the state court in California. Other cases were clustered in states like Rorida, Texas and New York. The cases were consolidated in the federal level in multi-district litigation.
Ellis was appointed by the courts to serve as one of the lead plaintiff attorneys in the Judicial Council Coordinated Proceedings QCCP). The hip implant class action settled for more than $1 billion. The path to winning such a large settlement was awash with obstacles, and the case was extremely emotionally-charged, Ellis says.
Our team was on the verge of jury selection in the lead case for the trial set in California when the federal judge issued a stay to temporarily halt the proceeding;’ Ellis says. “He said that the state case had to stop because it was threatening the national class action:’ Around the same time, the hip implant company engaged in a tentative settlement with the federal multi-district lawyers for about $650 million.
State lawyers including Ellis appealed the stay, and a federal appellate court overruled the federal judge saying that the stay was issued erroneously. Ellis’ ability to continue his trial in Alameda County triggered an opportunity to negotiate a revised resolution. “We actually convinced the federal appellate court to overrule the stay order from the federal court, and by forcing that issue, it forced a better settlement later;’ Ellis says.
With the end litigation on the horizon, the lead plaintiff attorneys had to convince some plaintiffs to resist opting out of the settlement to try to win their cases alone through trial or possible separate settlements. Too many op-outs could have led the hip implant company to go bankrupt, making a lien irrelevant.
The class members with a lien on the company’s assets would have had priority, and those who opted out of the class would not have have received compensation. Despite the challenges, the state lawyers ultimately reached a resolution that almost doubled what the hip implant company had initially presented to the court. The result was a settlement of more than $1 billion.
Facing an enormous challenge of compensating thousands of patients, the implant manufacturer borrowed funds and otherwise raised money to finance the settlement. One key to achieving the settlement was pressing early for certain trials, Ellis says. “Many times this kind of complex litigation can get bogged down, and keeping it moving is very important,” he says.
“Every day we thought about how we could push the depositions forward and how we could get the courts and the judges to push the cases toward trial:’ Ellis calls handling such complex cases an art. “It’s about looking at the minute details, and taking hundreds of thousands of documents and whittling them down into a binder of the points most important to the case;’ Ellis says.