On August 29, 2016, Stryker issued a voluntary recall of certain lots of Stryker LFit Anatomic Cobalt Chromium V40 femoral heads, a prosthetic hip replacement device, manufactured before March 2011. This recall included over 40,000 defective hips. Stryker cited to “higher than expected” complaints about the failure of the femoral head to fully lock onto the stem at the stem-head taper junction, also referred to as “taper lock failure.” Additionally, patients have experienced issues with fretting and corrosion where the femoral head connects to the femoral stem, which has led to the systematic release of metal particles into surrounding tissue and bone. The systematic release of these metal particles has placed patients at risk for certain medical conditions and has required some patients to undergo revision surgery. The issues may not only be due to the femoral head design, but also due to its intersection with the Stryker Accolade, Meridian and Citation titanium alloy femoral stems.
Due to the defects in the Stryker devices, multiple federal and state courts lawsuits arose all over the country against Stryker Orthopaedics and its New-Jersey-based subsidiary, Howmedica Osteonics Corporation (“HOC”). In the last year, plaintiffs with lawsuits in both federal and state courts have requested to consolidate their cases into multi-district litigation (“MDL”) and multi-county litigation (“MCL”), respectively.
Why Would Plaintiffs Want to Consolidate Their Stryker LFit Cases?
There are many strategic explanations for why plaintiffs may decide to consolidate their cases. The “centralization” of multiple actions promotes just and efficient conduct of the actions, serves the convenience of all parties and witnesses, promotes the interest of justices and conserves judicial resources. The plaintiffs can pool their resources and coordinate legal strategies while reducing costs, avoiding potentially inconsistent rulings by the courts and eliminating unnecessary duplicative discovery. Cases consolidated into multi-district or county litigation get a lot of attention; the more plaintiffs involved in the litigation, the higher the cost to the defendant, which the plaintiffs can use as leverage during settlement negotiations. And, for HOC, the MDL and MCL litigation will attract extra negative attention.
Consolidation of Federal and State Court Lawsuits
In April of 2017, the U.S. Judicial Panel on Multidistrict Litigation (also known as “JPML” or “Judicial Panel”) considered a request by plaintiffs to consolidate federal court lawsuits against HOC over the femoral heads in Massachusetts federal court. Defendant HOC opposed centralization but, as an alternative, suggested the selection of the District of New Jersey or Southern District of New York as the transferee district. But, all responding plaintiffs supported centralization in the District of Massachusetts. After considering all arguments, the Judicial Panel signed off on the plaintiffs’ request to centralize the lawsuits. The Judicial Panel decided that the actions in this litigation involved common questions of fact. Centralization in the District of Massachusetts would serve the convenience of the parties and witnesses and would promote the just and efficient conduct of the litigation.
While it was decided that the federal cases would be transferred to the District of Massachusetts, plaintiffs with pending cases across the state of New Jersey patiently awaited a decision from the New Jersey Supreme Court on whether their statewide cases would be consolidated under a multi-county litigation. In seeking MCL status, the plaintiffs argued that the litigation involved recurrent legal issues of design defect, failure to warn, breach of warranty, and possibly manufacturing defect. Defendants argued that the designation was unnecessary because the pending lawsuits were already assigned to Judge Harz and steps had been taken to effectively coordinate the matters. Defendants argued that if the Supreme Court did grant the plaintiffs’ request for MCL, the MCL should be limited to only those devices that were specifically recalled. Plaintiffs disagreed, arguing that such a limit would preclude the numerous device failures of non-recalled femoral heads from being included in the MCL.
On May 16, 2017, the New Jersey Supreme Court approved the bid from plaintiffs to consolidate the state court lawsuits, therefore designating all pending and future actions against HOC, in connection with the Stryker LFit V40 femoral heads, as multicounty litigation. The MCL was assigned to Bergen County for centralized case management by Superior Court Judge Rachelle L. Harz. And, the Supreme Court chose not to limit the MCL to specifically recalled lot numbers of the Stryker devices, again finding in favor of the plaintiffs.
This designation came rather quickly—not even a year has passed since Stryker issued the previously discussed recall of certain lots of the Stryker LFit V40 femoral head devices. Just 7 days after the Supreme Court’s Order designating the MCL, Judge Harz issued the first comprehensive Case Management Order, which discussed both proper procedure and the Court’s expectations of the parties throughout litigation in the MCL. Judge Harz has already scheduled a Case Management Conference for June 21, 2017.
The dedicated Mass Tort Unit of Searcy Denney Scarola Barnhart & Shipley represents plaintiffs who have been injured by defective medical devices and drugs. The firm filed the first Stryker Accolade/LFit case in New Jersey in 2013, and had already filed the first Stryker Rejuvenate case in New jersey by 2012. Over the past several years, I have devoted much of my time and effort to representing patients who have developed medical conditions due to the defects in the Stryker LFit V40 femoral head
devices. Presently, our firm has the largest number of cases filed in the Stryker Accolade litigation and we are currently accepting new cases, as sadly, patients are continuing to develop medical conditions due to the defects in the Stryker LFit V40 femoral head devices.