After Troy Burklund had implant surgery on his right hip four years ago, he looked forward to feeling better and being more mobile. Instead, the Sauk Rapids, Minn., police officer was plunged into a nightmare of frustration and pain that forced him to retire early.
“A lot of mornings I wake up and wonder what I’m going to do,” said Burklund, now 53. “My life has been on hold and in pain since 2010.”
He doesn’t blame his surgeon, who trusted Michigan medical manufacturer Stryker Orthopedic’s claim that its new two-piece hip-replacement device adapted more easily to a person’s body shape, lasted longer than traditional implants and was better for younger patients. But he does blame Stryker.
The first suit over the defective device quietly landed in a New Jersey courthouse more than two years ago. Soon, however, the fight for Burklund and thousands more shifted to Minneapolis, where a select group of attorneys helped craft a $1.425 billion settlement.
Last year, attorney Genevieve Zimmerman successfully petitioned a judicial panel to consolidate the more than 4,500 state and federal lawsuits against Stryker and its subsidiary and bring the legal battle to Minnesota. In an unusually short time, the plaintiffs defeated a medical technology giant that had sold doctors a toxic product that literally corroded away inside patients.
Stryker’s deal is the second multibillion-dollar settlement over flawed hip-replacement equipment in the past year. Johnson & Johnson is expected to pay more than $3 billion to satisfy at least 8,000 suits. But unlike most recalled products, Stryker’s Rejuvenate and ABG II modular-neck implants will have a nearly 100 percent failure rate, said Meshbesher & Spence attorney Tony Nemo.
In addition to a provision that allows patients to be compensated for a second surgery to remove the faulty device, the settlement is unprecedented because the amount Stryker will pay out is uncapped. Zimmerman, one of six attorneys appointed to shepherd the negotiations, said it may be the first uncapped deal involving a recalled medical or pharmaceutical product.
“I feel lucky that I can do good for people,” said Zimmerman, who has devoted three years to the case. “The money can’t put them the way they were before the surgeries, but it will make a difference in their lives.”
A ‘biblical’ failure rate
The device combined cobalt-chromium and titanium components. Medical tests for hundreds of implant patients, including Burklund, revealed metallosis, a toxic dose of metal in the blood caused by fraying of the implant. In the plaintiffs’ combined master complaint, they alleged that was the exact failure mechanism the medical and scientific community had been documenting in modular implant device designs since the 1980s.
“A failure rate for a recall is usually around 30 to 40 percent. A nearly 100 percent failure rate for our case is biblical,” said Nemo. “Stryker knowingly stuck their rich little head in the sand and ignored any signs of a problem.”
Stryker spokeswoman Jeanine Guilfoyle said the Kalamazoo, Mich.-based company complied with global regulations and got clearance for the products from the U.S. Food and Drug Administration. More than 30,000 devices were sold worldwide before recall letters were sent out in spring 2012. Patients participating in the settlement program could get up to $850,000; checks will be cut by summer.
“The health and well-being of patients, is, and always has been, Stryker’s top priority,” Guilfoyle said. “The settlement provides patients compensation in a fair, timely and efficient manner.”
Burklund questioned why it took the company so long to realize the implant was dangerous and wonders why the device’s problems weren’t discovered during the testing phase.
Even after his second hip replacement surgery, he struggles to sit or walk for long periods. Pain and fatigue are constant. He’s given up trying to do some simple daily activities, and hobbies like running and snowmobiling are fading memories.
Burklund’s is one of the 2,365 suits filed against Stryker in Minnesota; the rest were filed in 38 other states and 15 judicial districts. Although another law firm petitioned to consolidate the suits in another state, a federal judge panel agreed with Zimmerman’s argument to move the case to a federal courtroom in Minneapolis. The panel selected U.S. District Judge Donovan Frank to preside because he is well-versed in complex, multidistrict litigation and medical device cases.
Zimmerman, who came to work at Meshbesher & Spence after leaving the Zimmerman Reed law firm in August, and Nemo monitored the hip device for months before the case consolidation. At the time Stryker issued its recall, it wrote on its website that only one percent of the devices failed, Nemo said.
Several other Minnesota law firms, as well as many in other states, helped with pretrial work and the eventual settlement. But Judge Frank appointed a handful of key attorneys, including Zimmerman and Nemo, who was the plaintiff’s liaison counsel for all the federal suits. Attorney Charles Zimmerman (no relation to Genevieve) was later placed on the six-person lead counsel committee.
Genevieve Zimmerman then compiled a litigation team that had the financial and personnel resources to dedicate to a case that would take years to complete. They were also going up against the three big law firms hired by Stryker.
They reviewed millions of documents and examined every aspect of the device. The group wanted to move as efficiently as possible because many of the hip replacements involved an older population.
“I put together a formidable team that knew exactly what they were doing,” said Genevieve Zimmerman. “There was a little bit of a power struggle, but we built a coalition of lawyers from across the country that were very collaborative. They put clients first and egos second.”
Driving toward settlement
The steady guidance of Frank and Magistrate Judge Franklin Noel was critical in a fast and successful settlement agreement, Nemo said. Frank held monthly review sessions in court and turned around orders within a week. He cleared his calendar for potential trials next summer but had both sides talking about a settlement from the start.
Settlement talks started in the summer, setting off a delicate dance, Genevieve Zimmerman said. Everybody wanted their clients represented well, and “we were fortunate to have almost universal support among the attorneys nationwide,” she said.
The settlement is available only to patients who had their secondary surgery to remove the device by Nov. 2. Since thousands still haven’t had the surgery, Nemo expects a surge of new lawsuits.
Patients eligible for settlement money have to register by Friday and then be approved before enrolling in the payout program next month. Meshbesher & Spence will recover one-third of the payout, which Nemo said is lower than most firms charge. Some of the money will also go to reimburse health insurance or medical providers.
Burklund hasn’t decided if he’ll enroll in the payout program or move forward with his suit. Retiring early hurt him financially because he pays more for insurance and has three children in college.
He’s looking at job prospects, which are limited because of the damage caused by his hip surgery. But he’s learning to deal with it, he said, joking that his kids say he now walks like Groucho Marx.
“The doctors can’t answer if or when I may get back to 100 percent,” he said.