In the May 28 order, Judge Donovan W. Frank of the U.S. District Court for the District of Minnesota held that one case from each category will be tried, with the lead case from the first category going first. The cases are categorized based on product, the date of implant surgery, and the post-revision outcome.
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The third and fourth groups are split along the same “uncomplicated” and “complicated” revision line, but contain plaintiffs that underwent the hip implant after Jan. 1, 2011.
The fifth category includes plaintiffs implanted with the ABG II Modular hip implant and “who subsequently underwent a revision procedure during which the neck and stem components of the ABG II Modular device were removed.” This category includes both “complicated” and “uncomplicated” AGB II cases.
“An ‘uncomplicated revision’ is defined as a surgery during which the stem and neck components of the implanted Rejuvenate device were removed from the plaintiff and that plaintiff experienced no significant intra-operative or post-operative complications,” Judge Frank explained. “A ‘complicated revision’ is a surgery during which the stem and neck components of the implanted Rejuvenate device were removed from the plaintiff and that plaintiff experienced significant intra-operative and/or post-operative complications causing unanticipated and extraordinary damages.”
“Complicated” revision surgeries may include significant osteotomy, fractured femur, orthopedic cable cerclage, infection, and/or additional surgeries after the revision surgery, the judge clarified.
“The definitions of ‘uncomplicated’ and “Complicated” Revision strictly apply to the selection of future bellwether pools and have no bearing on future aspects of this litigation. The parties are hereby ordered to use best efforts to agree on the appropriate category into which each plaintiff should be placed. Any unresolved disputes will be timely resolved by the Court,” Judge Frank ordered.
Counsel must confer and attempt to agree upon three cases from each of the five bellwether categories that should be designated as lead cases, the order says; to qualify for such designation, a case should be reasonably representative of the other cases in the category.
“If counsel are not able to agree upon which cases in each category should be designated as lead cases, counsel shall file with the Court on or before July 21, 2014, the names of the three cases each contends should be the lead cases in each category with a brief description (not to exceed 300 words per case) why each case should be so designated,” Judge Frank ruled. “Counsel may file with the Court on or before July 28, 2014, a letter not exceeding three pages explaining why one or more of the cases designated by the opposing side should not be a lead case. Thereafter, the Court will set this matter for a telephonic hearing on a date to be selected by the Court, if available, after August 5, 2014 and before the regularly scheduled status conference for the month of August.”
The parties agreed that the first bellwether trial should be chosen from the first category. The order of the remaining bellwether trials was decided by Judge Frank based upon all of the files, records and proceedings. He ordered that the second bellwether trial will be selected from the second category, the third trial will be selected from the third category, the fourth trial will be chosen from the fourth trial, and the fifth trial will be selected from the fifth category.