Now that the claims against Stryker have been centralized in Minnesota, speculation has begun as to what litigation strategy Stryker will employ.
Lets start with what we know. First, Stryker has employed Broadspire as an administrator to handle claims. Broadspire first showed up in the Depuy ASR litigation. In the ASR litigation, Broadspire has handled the payment of co-pays, deductibles, and in some cases, lost wages for individuals claiming injuries as a result of catastrophic failure of the recalled ASR hip system. At one time it was thought that Broadspire would engage in the wholesale settlement of claims but, to date, that has not occurred (more about that later). At issue in the Depuy ASR litigation is whether Depuy will be allowed to introduce at trial the services performed, and the funds paid out by Depuy via Broadspire. Depuy wants to use this evidence at trial in an attempt to show that they are a good corporate citizen and they did they right thing when they recalled the product. Depuy needs this evidence to offset the horrible evidence showing they knew of the problems with their ASR hip system and placed profits over safety until the evidence of failures overwhelmed them.
Back to Stryker. No, let go back to Depuy for a minute because I think it will be important for context.
From the moment the Depuy ASR MDL (multi-district litigation) kicked off, lawyers for Depuy have taken every opportunity to state time and time again that Depuy wanted to settle with claimants. That was three years ago. Depuy has not made any real efforts, it appears, to engage in the settlement of claims. You just don't go three years trying to settle with any of the ten or so thousand of claimants and thousand or so of lawyers, and not get any takers.
In the meantime, Depuy has vigorously defended the cases and developed their strategy. They have tried two cases. One win, one loss. They lost the first one, then re-tooled and won the second case in state court. Claimants are dying without the opportunity to settle their claims, others are in financial distress, and others want to move on with their lives. They want to be compensated for what they have been through and they are pressing their lawyers.
Advantage Depuy.
Depuy now sits at a crossroads. Despite the disaster now known as the ASR, Depuy has drawn even at trial. The second trial proved Depuy can use their massive resources to convince juries that individual issues, despite how off base or misguided, caused the failure of that specific device and not a RECALLED PRODUCT THAT ULTIMATELY RESULTED IN THE END OF METAL ON METAL HIPS. This should be considered a huge win for Depuy. Many thought that the losses would continue to mount and that Depuy would be forced to settle claims on unfavorable terms.
What will Depuy do at this time? I would argue they have ultimate bargaining power. They have proved that they have the lawyers and the resources to pull of an upset win. They have drug out this litigation out for three years telling anyone who would listen that they want to settle, while making no real apparent attempts to settle.
What happens from here?
There has yet to be an MDL bellwether trial. That is coming up. I would argue that the result is immaterial to either side. The die has been cast. There are ten thousand cases out there to be tried. Shortly, the judge presiding over the MDL will be forced to send them back to the jurisdictions they came from for trial. Depuy will be trying cases every month and the war of attrition will continue, but this time the advantage will be against Depuy as thousands of lawyers get their chance to become famous by taking down the $1000 per hour lawyers and unlimited resources of Depuy in places like Alabama, Florida, California, New York, Texas, South Carolina..................
Back to Stryker in part 2.
