Judge Martinotti took a pro-active approach to seek to obtain early resolution of this litigation. Recognizing that this litigation involved a recalled hip, he approached lead counsel for the defense, Kim Catullo of the Gibbons Law Firm of Newark, NJ and NYC and Plaintiffs’ Lead counsel, Ellen Relkin, to determine if the parties would be amenable to early settlement efforts. Plaintiffs took the position that we needed to pursue discovery aggressively to obtain Stryker documents and testimony to better understand the nature of the hip failure. But mindful of the age of many of our clients and the fact that their hip injuries put them in an economically disadvantaged position, many of whom wanted early resolution, Plaintiffs’ counsel was amenable to also exploring settlement possibilities in tandem with the litigation track.
Stryker counsel in consultation with her client agreed that an effort to explore early mediation was a worthwhile endeavor. In Case Management Order #3 on March 18, 2013 the Court ordered the parties to submit a mediation proposal by March 28. Thereafter on April 2, 2013 the Court entered an Initial Mediation Consent Order appointing four different mediators agreed upon by the parties, including the Honorable Diane Welsh, retired Magistrate Judge from the United States District Court for the Eastern District of Pennsylvania, and retired Judge C. Judson Hamlin, the former Mass Tort Judge from Middlesex County, New Jersey. [See the mediation order.] These two mediators conducted the individual case mediations which formed the basis from which it was concluded that additional mediations would be productive, and ultimately, that the case was ripe for addressing a larger scale resolution process — a global resolution. These mediation successes were followed closely by the legal media. The first four cases to be mediated settled as reported in NorthJersey.com and Law 360.
The initial mediated cases were selected in various ways — each side was allowed to select a few cases and the court selected the balance. The methodology changed slightly after the initial group of cases were mediated. The mediation process had great success, with ultimately all but one of the 21 cases mediated resulting in settlement. Some cases did not settle at the initial session but resolved sometime after due to additional efforts by the parties and the mediator Cases were intentionally selected to involve various injuries including plaintiffs with relatively uncomplicated revisions (recognizing any femoral stem revision is a major surgery with a long recovery), but also those plaintiffs who had more difficult surgeries and outcomes.
Further, a special track was selected to include the more elderly of the plaintiffs — those who were 78 and over and had less time or patience to wait for bellwether trials to proceed. The court and the parties were ever mindful that most clients wanted resolution and sought to be part of the mediation process. However, the process involved one on one mediations where the clients from both sides appeared in person except when medically not possible and in such a case, by video conference. Stryker in-house counsel personally appeared at each mediation and had the opportunity to hear directly from the injured plaintiffs how the hip failure affected them. These mediations, sometimes highly emotional, served as the building blocks for further settlement efforts.
While productive for the clients involved, it became obvious that this process would simply take too long to provide a resolution for the more than 2000 cases in suit in New Jersey. Thus, Judge Martinotti appointed a confidential committee of four plaintiff lawyers from the PSC: Ellen Relkin, Calvin Warriner, Thomas Anapol and Tara Sutton to pursue confidential settlement talks with Stryker. During more than 10 sessions before the Honorable Diane Welsh at her offices in Philadelphia of the mediation group JAMS, the parties diligently met all summer and fall long, often into the late evening, in an effort to reach resolution.
Coordination with Multi-District Litigation (MDL)
Efforts were made to reach out to colleagues in the parallel federal Multi-District Litigation (MDL) and following communications between Judge Martinotti and the Federal Judge overseeing the MDL, Judge Donovan W. Frank and Magistrate Judge Franklin L. Noel and his recently appointed Settlement Master, Retired Magistrate Judge Arthur J. Boylan, as well as parallel efforts to communicate between leadership counsel from both jurisdictions — New Jersey and the MDL, two designated leaders of the MDL Leadership Committee were appointed to join with the New Jersey attorneys to complete the negotiations. Given that those two lawyers — Plaintiff lead counsel in the MDL Peter Flowers and PLC committee member Eric Kennedy, worked closely with some of the members of the New Jersey team to negotiate and manage the recent DePuy hip settlement, the groups worked together to reach this resolution. Judge Frank also appointed two other attorneys to the settlement committee, Annseley DeGaris and Genevieve Zimmerman who joined sessions once in Hackensack and once in Philadelphia.