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Attorneys who crowded into Alameda County, Calif.’s convention center Tuesday to hear details of a proposed nationwide settlement over faulty hip implants were warned in no uncertain words not to rock the boat. Gathered were about 100 rank-and-file plaintiffs’ lawyers involved in the national $1 billion hip and knee implant litigation settlement with Austin, Texas-based Sulzer Orthopedics Inc. One attorney voiced the thoughts of just about everyone when he asked what his chances would be if he opted out of the settlement. The answer, which drew nervous laughter from the crowd, was that any attorneys brave enough to try their luck in trial court should realize that Sulzer has retained the big-gun firm of Shook, Hardy & Bacon, headquartered in Kansas City, Mo. More details of the settlement were also released Tuesday. Among them: Plaintiffs’ lawyers who played a big role in the settlement will split $50 million in fees, about 5 percent of the total $1 billion pot. In California that will include major West Coast players such as San Francisco’s Lieff Cabraser Heimann & Bernstein; Gillin, Jacobson, Ellis & Larsen in Orinda; and Lopez, Hodes, Restaino, Milman & Skikos in Newport Beach. Individual patients who had one surgery to replace the bad implants will get $206,000, and Sulzer will pay for medical care costs. The settlement pays lawyers who represent individual class members their fee — typically $46,000 in the case of one revision surgery — out of the plaintiffs’ gross award, said Luke Ellis of Gillin Jacobson. An earlier settlement — which was rejected after harsh criticism by state lawyers — was worth only about $600 million in all, according to some estimates. In that agreement, patients who had one “revision” surgery to replace the implant got $60,000 plus medical expenses. The old agreement also made it virtually impossible for plaintiffs’ attorneys to opt out. Like other settlements of similar scope, the deal hinges on widespread participation by plaintiffs’ lawyers who represent the class members. Lieff Cabraser’s Richard Heimann reminded the group of that: “Part of the reason for this meeting is to determine in advance whether there are likely to be attorneys who opt out, and the pros and cons of that decision.” He emphasized that the settlement hinges on banks lending money to Sulzer — something they probably won’t do if they think the litigation is going to continue in trial court. Ellis said that if a significant number of lawyers decide to pursue individual suits in hopes of squeezing more money from the implant maker, Sulzer will pull out of the deal and could go bankrupt. “The alternative is terrible” if the deal falls through because of that, said the Orinda, Calif., lawyer. “The American assets are not sufficient to cover damages. People would have to go to Switzerland” to chase more lucrative Sulzer business entities, he said. Ellis represents 35 clients who have the defective implants, including a man with AIDS whose condition allegedly worsened after he got a bad implant. The agreement has been widely heralded as a major gain for an estimated 26,000 patients who received defective hip and knee implants, which were later recalled by Sulzer. A manufacturing process left hip implants with an oil residue that prevented the artificial joints from bonding with a patient’s tissue. The hip implants remain loose and grind painfully in the socket. Knee implants with similar problems were eventually also recalled. A little more than 3,000 people so far have had surgery to replace the defective hip and knee implants. Sulzer has said that about 4,000 people will be covered by the agreement. Not all of the patients who got the implants will develop problems, and some implant recipients are medically unable to undergo surgery. Plaintiffs who don’t have surgery will get settlement payments as well, depending on their medical needs, the agreement says. An Ohio federal judge, who is expected to approve the pact, will hold a “fairness hearing” on May 6. On that day, Ohio U.S. District Judge Kathleen O’Malley will also decide which plaintiffs’ lawyers will share in the $50 million fee award, Ellis said. After final approval, attorneys have five business days to notify the court if they plan to opt out of the settlement. The East Bay was an important stage for the litigation which, at various times, was pending in both federal and state courts around the country. Alameda County Superior Court Judge Ronald Sabraw presided over the cases in California — one of the states with the most lawsuits. All of the implant cases were ultimately remanded to O’Malley, the Ohio federal judge. At one point, Oakland, Calif.’s Crosby, Heafey Roach & May was Sulzer’s national defense counsel, but now the firm coordinates its legal effort in California. Thomas Schultz of Lopez Hodes said the cases “are not simple. In order to get Sulzer we had to get the Swiss [business entities] involved, and they contributed mightily to the settlement.”

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