It's decision time in the litigation surrounding a defective medical device that some call the "most flawed ever." For about 8,000 plaintiffs who are suing Johnson & Johnson-owned DePuy over its recalled ASR metal-on-metal hip implant, an April 1 deadline looms: the plaintiffs have until that date to opt-in or opt-out of a multi-state settlement worth about $4 billion. The settlement proposal, hammered out by a court-appointed panel of attorneys and Johnson & Johnson, must be approved by 94 percent of the eligible claimants in order to go forward.
One of those claimants tells NBC 5 Investigates the decision is agonizing.
"I really don't want to accept this out of principle, out of morals, ethics, but also just financially. Financially, I can't accept it," Scotty MacGregor said. NBC 5 has been following MacGregor for four years, as her journey with the recalled device led her into a second surgery and into litigation. The O'Hare-based flight attendant says the road has been long, painful and extremely time-consuming.
The 181-page proposed settlement lays out the complicated math of trying to help people affected by the defective device put their lives back together, dollar by dollar. An award schedule assigns dollar amounts to surgery and related complications, and also reduces the amount for certain factors, such as if the patient is a smoker or overweight.
MacGregor's family says the amount she would receive after fees, about $150,000, is insulting and does not properly compensate her for five years of pain and lost opportunities, both personal and professional.
"Flabbergasted, stunned, so disgusted ... I just felt totally deceived hurt and let down by the system," MacGregor told NBC 5 Investigates.
To go forward, 94 percent of eligible claimants must approve the settlement. Johnson & Johnson can pull the offer from the table if that approval level isn't reached. Claimants who decide to opt out will essentially be making the decision to take on the major medical company alone in court. MacGregor isn't sure if she has the stomach for that, but also can't imagine throwing in the towel.
"What Johnson and Johnson did to one person... it totally changed and altered my life forever," she said. "It's a slap in the face. To me, it's morally degrading."
So far, two people have taken on the company in court with mixed results: A California man won a $8.3 million verdict against Depuy. A second case in Chicago got the opposite verdict, finding for Depuy.
For its part, DePuy says the compensation offered in the settlement is fair, and offered this statement to NBC5:
"We are committed to the well-being of ASR patients. Since the recall decision was made, DePuy has worked to provide patients and surgeons with the information and support they need.
The U.S. settlement program provides fair compensation without the delay and uncertainty of protracted litigation, and it takes into consideration patients' specific medical circumstances. It was negotiated by the company and the leading plaintiff lawyers from around the country, including Ms. MacGregor's lawyer, who were personally involved in the litigation, conducted the trials and represent the majority of patients. Enrollment in the program is in progress, and the deadline for submitting all enrollment materials is April 1, 2014. We encourage patients with any questions to speak with their lawyer, if they have one, or contact the U.S. settlement program claims processor at www.USASRHipSettlement.com or (877) 391-3169.
Regarding the Chicago trial from last year in Circuit Court of Cook County, Illinois, the jury returned a verdict in favor of DePuy Orthopaedics Inc. in April 2013. Regarding the Kransky trial in the California Superior Court, Los Angeles County, the verdict remains on appeal."