The national litigation efforts in state and federal court involving Wright Medical’s defective metal-on-metal hip implant products ( Conserve®,Dynasty®, Profemur® and the Lineage®) have been proceeding well over the past few months with additional progress expected through the end of 2013.  The coordinated litigation efforts in both the federal Multi-District Litigation (MDL) as well as the Judicial Council Coordinated Proceedings (JCCP) in California continue to proceed on a slightly revised timetable.  There was a slight extension of deadlines to provide an additional nine months for the completion of discovery in California state court (concluded May 15, 2014).  Lawyers, judges and parties in both jurisdictions are working jointly with regard to the production of documents and completion of depositions of corporate employees and third party fact witnesses.

Document Production Nightmare

A status conference was held in the California state court coordinated proceedings on June 18, 2013.  At that time, Judge Jane Johnson noted that so far 242 plaintiffs have filed cases in that court, with additional filings expected in the coming months.  The court heard arguments pertaining to ongoing discovery disputes between the parties with regard to identification of Wright Medical employees with knowledge of critical issues as well as the production of documents relating to the litigation, especially documents that were prepared by or included in the custodial files of critical employees who are no longer employed by Wright Medical.  So far, Wright Medical has produced 2 million pages of documents, which is far less than the number of relevant documents that had been anticipated by the plaintiffs.  For sake of comparison, the DePuy hip litigation in Ohio and Texas, has produced nearly 50 million pages of documents and electronic information.

At the June hearing, there was also further argument on the plaintiffs’ request for production of additional documents relating to criminal investigations and the Deferred Prosecution Agreement involving Wright Medical. The judge ruled on several of these discovery issues and ordered the parties to meet and confer to resolve the remaining.  The court also ordered the parties to submit a list of cases that are eligible for individual trial settings for the first bellwether trials.  The next status conference before Judge Johnson has been scheduled for August 29, 2013.

In the multi-district litigation pending in Northern Georgia, there are now nearly 50 individual lawsuits that have been filed on behalf of plaintiffs who suffered injuries after being implanted with Wright Medical’s metal-on-metal hip implant products. District Court Judge William S. Duffey recently ruled to permit plaintiffs’ counsel to conduct interviews of Wright Medical’s former employees, but he did order a number of special procedures for these interviews.  This is a critical victory for the plaintiffs.

Judge Duffey has also entered a new order relating to upcoming deadlines in the federal coordinated multi-district litigation (MDL) proceedings.  Under this latest order, approximately 25 depositions of Wright Medical employees are to be completed throughout the summer of 2013.  The MDL judge ordered that expert witness reports be produced in September of 2013 and that depositions of experts for both sides be completed by November 15, 2013.  Once the expert witness depositions are completed, we anticipate that the judge will establish additional deadlines for the filing of motions seeking rulings on legal, scientific, and evidentiary issues as well as establishing deadlines for the completion of case-specific discovery required to prepare the first individual cases for trial in the MDL.  The cases to be included in this MDL bellwether trial process have not yet been selected by the judge.