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Artificial-Hip Patients Get Offer |
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May 15, 2002
Cleveland Plain Dealer
After six weeks of physical therapy, Italia Pasquarelli knew something was wrong.
Leg
lifts, an exercise bike, the treadmill and calisthenics were supposed
to strengthen her freshly minted left hip, but all the 72-year-old
widow and grandmother felt was pain. She couldn’t walk up the steps of
her Little Flower Catholic Church, climb into her Chevrolet Corsica or
stroll through the grocery store.
After a second round of
painful exercises, Pasquarelli learned why. The implant was defective
and part of a recall by the manufacturer. A lubricant left on part of
the implant had prevented it from attaching properly. Surgeons would
have to remove the artificial hip and implant another during a painful
surgical procedure lasting two to three hours.
“I couldn’t believe my ears, said Pasquarelli, who had the surgery redone last March.
Pasquarelli,
of Canton, is among 28,000 patients who got faulty hip or knee implants
made by Texas manufacturer Sulzer Orthopedics. Of those, about 4,000
have been replaced. A flurry of lawsuits around the country culminated
Wednesday in a class-action agreement to pay $1 billion to the injured
patients.
A final hearing will be held May 14 before U.S.
District Judge Kathleen OMalley in Cleveland, who must approve the
proposed deal. Plalntiffs will first get a chance to review the terms.
The
agreement specifies that Sulzer Orthopedics’ Swiss-based parent, Sulzer
Medica, pay $725 million toward the settlement, with the balance from
insurance proceeds and other sources. Suizer AG, the former grandparent
of Suizer Medica, also will kick in cash and the Sulzer Medica stock it
owns.
Sulzer closed at $9.03 yesterday, down 9 cents in trading on the New York Stock Exchange.
Patients
who got the faulty implants redone without experiencing complications
could each receive about $200,000, more than double what the company
offered last fall. About $40,000 of each patient’s take will go toward
attorney fees. The payment is higher for patients who experienced
complications.
Lawyers have asked the judge to award $50 million in fees.
The
Sulzer suit isn’t the biggest class-action payout on paper. Insider.”
Dow Coming reached a $3.2 billion settlement following allegations that
its breast implants leaked and caused connective tissue disease.
But
unlike Dow Corning, which sought bankruptcy protection in 1995 after
thousands of women sued the company, Sulzer’s proposed settlement
should allow the manufacturer to remain solvent.
The Sulzer suit
was less problematic than Dow’s because the hip and knee implant
technology was never in question. The problems were limited to a finite
number of implants made during the 1990s. This made it easier to
identify potential victims and assess damages.
The Sulzer case
drew enough attorneys from across the country to fill a cineplex. Eric
Kennedy of Cleveland was chief counsel for the plaintiffs. Sulzer’s
surprise choice for chief defense counsel was Richard Scruggs, who is
best known for taking on Big Tobacco and forcing a $248 million
settlement that was later depicted in the 1999 film “The Insider."
Hiring Scruggs, who normally represents plalntiffs, was a bold move for Sulzer that proved strategic.
His
experience in crafting settlements for plaintiffs helped move
negotiations more rapidly, he said, although some of his boldest
suggestions were scrapped before lawyers would sign off on the
agreement.
Case Western Reserve University law Professor Spencer
Neth said the settlement holds promise if it can withstand attacks by
plaintiffs who choose to opt out.
“Most people will benefit from
this,” said Neth, who follows product liability cases. “And it helps
avoid bankruptcy. There may be some people who think they can do
better, but I don’t think so.”
Hip and knee implants,
manufactured since the 1960s, carry a good track record, surgeons say,
usually lasting 10 to 15 years —better than most automobiles. They free
people from chronic joint pain caused by osteoarthritis or injury.
“From
a quality-of-life standpoint, hip and knee implants are the most useful
surgical procedure out there,” said Dr. Barry Stulberg, a Cleveland
orthopedist who helped organize a federal panel in 2000 on medical
implant devices. “It keeps people out of nursing homes and gets people
back to work. It’s far more cost-efficient than heart surgery.
Vincent
Mazzolini was looking forward to knee replacement surgery on both legs
to give him relief from his chronic pain. But a persistent problem in
his right knee signaled something was wrong.
Mazzolini, a
60-year-old former salesman from Wickliffe, said doctors tried
manipulating his knee several times, thinking the chronic pain was
caused by scar tissue, but then realized the implant wasn’t working
properly. He had the revision done in October.
“Now I walk five miles a day,” he said.
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