DEPUY ASR HIP IMPLANTS
This website is published for the benefit of people who want to make a claim in the settlement of the DePuy ASR Class Action.
Important information regarding the settlement will be published on this website as it becomes available.
- On 1 December 2016 the Court delivered its written judgment on the approval of the settlement. The written judgment contains the Court’s detailed reasons for the orders made on 29 June 2016 approving the settlement.
- On 29 June 2016 the Federal Court approved the settlement of the DePuy ASR Class Action for $250 million. Group Members who want to claim compensation in the settlement must register online.
The deadlines for online registration are as follows. Failure to comply with these deadlines may result in rejection of your claim.
|Date of revision||Deadline for registration|
|30 April 2016 or earlier||31 October 2016*|
|1 May 2016 or later||No later than six months after the date of the revision surgery|
*NOTE: If you had revision surgery on or before 30 April 2016, the deadline for registration has now passed. Please contact Maurice Blackburn or Shine Lawyers if you had a revision before 1 May 2016 and did not register before the deadline.
Group members will be eligible to receive compensation if they satisfy certain eligibility criteria that are outlined in Amended Settlement Scheme. The most important of these is that Group Members must have had an “Actual ASR Revision” or a “Deemed ASR Revision” within thirteen years of being implanted with an ASR hip implant.
An “Actual ASR Revision” means a revision in which one or more components of an ASR hip implant are surgically removed.
A “Deemed ASR Revision” is where the surgical removal of one or more components of an ASR hip implant is necessary but is not able to be carried out because medical comorbidities would pose an unacceptable risk of death or an unacceptable deterioration of the Group Member’s health.
If you have not yet had an “Actual ASR Revision” or a “Deemed ASR Revision”, you do not need to register at this stage. The registration process will remain open for you to register your claim if you satisfy the eligibility criteria in the future.
NOTE: If you already registered via this website before receiving the further notice to group members in July 2016, you do not need to register again.
UPDATE – July 2019
On 17 June 2019, the Administrators of the settlement (Maurice Blackburn and Shine Lawyers) appeared before Justice Wigney in the Federal Court of Australia in Sydney in order to provide an annual update to the Court regarding the progress of the settlement administration.
In preparation for our annual update to the Court, we obtained updated advice from our actuarial experts regarding the payments that can be made to Group Members pursuant to the Settlement Scheme.
Progress of the settlement administration
Significant progress has been made in the settlement administration over the past 12 months with more than 400 Group Members receiving their compensation payments. This means a significant majority of registered Group Members have had their claims finalised.
Approximately 150 Group Members are in the process of having their claims assessed and finalised. The Administrators also continue to receive new registrations, albeit at a lower rate than previously anticipated, and these claims will also continue to be processed by the Administrators in accordance with the Scheme.
Outcome of updated actuarial advice
Fast Track Resolution
While the Settlement Scheme specifies that the Fast Track Resolution is a standardised lump sum payment that is to be paid in full and final settlement of a Group Member's claim, the Settlement Scheme also allows any surplus in the settlement funds to be distributed by way of a top up payment among all eligible Group Members including those who received the Fast Track Resolution payment. The Settlement Scheme requires the Administrators to seek advice from actuarial experts in order to manage the settlement funds and ensure that those funds are equitably distributed among Group Members.
In June 2019 the Administrators obtained updated advice from actuarial experts – that advice is relevant to the payments that can be made to individually assessed Group Members, however, the actuarial experts now consider that there is a possibility that in the future a top up payment could be made to Group Members who elected Fast Track Resolution.
Individually Assessed Claims
In June 2018 we received actuarial advice that individually assessed Group Members could be paid an initial payment of 90% of their Total Assessed Compensation once their claim had been finalised, and since that time, more than 230 individually assessed Group Members have been paid at that level.
In light of the progress of the settlement administration over the last 12 months, our actuarial experts were able to revise their advice in order to take into account additional information concerning the settlement administration and in particular, the estimated number of claims as well as the amounts that have been paid and are estimated to be paid pursuant to the Settlement Scheme.
Group members who have previously been paid an initial payment of 90% of your Total Assessed Compensation, will be paid a further tranche payment of 10% of their Total Assessed Compensation, taking the total payment to 100% of their Total Assessed Compensation.
Please note, if a Group Member's Total Assessed Compensation included a component for economic loss, the Administrators are required to notify Centrelink for assessment of any repayment and/or preclusion that may apply. The further payment of 10% cannot be made until the Administrators have resolved any repayment and/or preclusion period with Centrelink. We ask for your patience as we work through the applicable legal requirements before processing further payments.
Group Members who have not previously received compensation because their individual assessment claim is still progressing, will receive payment at 100% their Total Assessed Compensation when their claim is finalised.
Future 'top-up' payment
Based on progress of the settlement administration to date, our actuarial experts have indicated that they expect there will be a surplus in the settlement fund at the conclusion of the settlement administration.
At this point in time, the actuarial experts estimate that the surplus might result in a future top up payment to all Group Members (including all Group Members who elected the Fast Track Resolution). At the present time this top up payment is estimated to be between 10% and 20% on top of the 100% that will have already been paid to you.
Please note that this is only an estimate based on information that is currently available. The actual amount will depend on the ongoing progress and outcomes of the settlement administration, and the final amount might end up being higher or lower than the current estimate.
It is also unclear at this stage whether a future top up payment could be made in one payment or would need to be made in several instalment payments. In any case, any such top up payment would not be paid for another 18 months or perhaps longer.
We will again seek updated actuarial advice in the next 12 to 18 months to determine if and when a top up payment can be made to Group Members.
Further amendments to the Settlement Scheme
At the June 2019 case management hearing, the Administrators sought Court approval for certain amendments to the Settlement Scheme.
Those amendments were based on taxation advice the Administrators received from our taxation advisors and we expect that the amendments will result in a reduced taxation liability, which will in turn, benefit all Group Members.
The Administrators will make the updated Settlement Scheme available on this website.
Justice Wigney considered a report from an independent costs expert, and in light of that report and the progress of the settlement administration as a whole, administration costs for the last 12 months were also approved by the Court as per the Court Orders available on this website.
UPDATE - July 2018
On 21 June 2018, the Administrators appeared before Justice Wigney in the Federal Court in Sydney in order to:
- Provide an update about the progress of the Settlement Administration;
- Obtain the Court’s approval of some minor amendments to the Amended Settlement Scheme;
- Seek the Court’s approval for the resolution of claims of two group members under a legal incapacity, as required by court rules; and
- Request the Court approve Administration Costs.
Progress on the Settlement Administration
Significant progress has been made in the settlement administration over the past 12 months, including:
- Of the 1,748 registered Group Members 94.5% have had their eligibility determinations made;
- 92.4% of Group Members who elected the Fast Track Resolution option have received their compensation (totalling close to $70,000,000);
- 277 Group members have elected individual assessment. Almost half of these Group Members have had their assessments completed and will be paid their compensation in the near future; and
- The Administrators expect that all claims for currently registered Group Members which are yet to be completed will be completed by the end of 2018 leaving only those newly registered claims to be processed.
In relation to the approval of administration costs, the Administrators filed affidavit material with the Court detailing their costs. In addition to the affidavit material, an expert report prepared by independent costs expert, Mr Ross Nicholas was also filed. Justice Wigney considered this material and subsequently made orders approving the administration costs sought by the Administrators.
Amendments to the Settlement Scheme
At the request of the Administrators, Justice Wigney approved minor amendments to the Settlement Scheme.
The Administrators also raised with the Court a possible amendment to the Scheme to simplify the process for resolving claims by Group Members under a legal incapacity. The Administrators are in the process of drafting these further amendments and expect to seek the Court’s approval for them shortly.
Following the Court’s direction on the proposed amendments the Administrations will make the updated Settlement Scheme available on this website.
UPDATE - 20 November 2017
Progress of the Settlement Administration
The Administrators continue to make significant progress in implementing and administering the settlement.
- To date, 1,725 group members have registered claims in the settlement
- Of the 1,725 registered group members, 1,468 have had their eligibility determined. For the remaining group members the Administrators are awaiting information and materials (including medical records) that are needed in order to determine eligibility.
- More than $37.6 million in Fast Track payments has been paid to a total of approximately 631 [37%] group members
- For the group members who have elected Fast Track, but are yet to be paid, we are in the process of resolving their liens
- 254 group members have elected individual assessments. We are in the process of preparing Claim Books for these group members.
For those group members who have elected individual assessments, we refer to the Individual Assessment Brochure that was previously distributed for details of the next steps in the assessment process. A copy of the brochure as well as other information about the settlement can be found below under Settlement Administration Documents.
The assessment and payment of compensation to such a large number of group members under the Settlement Scheme is a complex and time consuming process. The settlement administration has been progressing well and the Administrators expect this to continue. It is expected that all Fast Track payments will be completed in the first quarter of 2018 (for group members who have already elected Fast Track).
UPDATE - 7 July 2017
On 28 June 2017, the Administrators appeared before Justice Wigney in the Federal Court in Sydney for a further Case Management Conference. The purpose of this further hearing was to provide clarification to the Court regarding certain aspects of the administration costs and disbursements incurred to date.
In preparation for the 28 June 2017 hearing, the Administrators filed further affidavit evidence, including a supplementary report from the independent costs expert Mr Ross Nicholas.
After considering the further evidence, Justice Wigney made orders approving the administration costs and disbursements sought by the Administrators.
In making the Order Justice Wigney stated that he was satisfied with the expert cost assessor’s opinion that the administration costs and disbursements sought were reasonable.
A link to the further affidavits, 28 June 2017 orders and 4 July reasons can be found below under Settlement Administration Documents
UPDATE - 20 June 2017
On 14 June 2017 the Administrators appeared before Justice Wigney in the Federal Court in Sydney in order to:
- give an update about the progress of the settlement administration;
- obtain the Court’s approval of minor amendments to the Amended Settlement Scheme; and
- request the Court to approve some of the administration costs incurred to date.
Progress on the Settlement Administration to Date
As was reported to the Federal Court last week, the Administrators have made significant progress in implementing and administering the settlement:
- 1,722 group members have registered their claims in the settlement;
- Of the 1,722 registered group members, 55.98% have had their eligibility determinations made, and for the remaining group members the Administrators are awaiting information and materials including medical records that are needed in order to determine their eligibility; and
- To date, more than $13 million in Fast Track payments have already been paid to group members.
For those group members who have elected to have their claims individually assessed, an information brochure was recently sent to you and is also available on the website.
The Administrators wish to emphasise that the assessment and payment of compensation to such a large number of group members under the Settlement Scheme is a complex and time consuming process. At this stage the Administrators are prioritising the completion of all eligibility determinations while at the same time processing Fast Track payments when they are able to be paid after all relevant health care liens are resolved. To date, the settlement administration has been progressing well and the Administrators expect this to continue.
Amendments to the Amended Settlement Scheme
Justice Wigney has made minor amendments to the Amended Settlement Scheme. These amendments relate to largely procedural and administrative matters including permitting Duncan Basheer Hannon and Lempiere Abbott McLeod undertake certain steps for those group members who they represent. This document has been uploaded to this webpage together with the other documents set out below. We have modified the documents now available on this website to reflect the documents and information currently relevant to group members.
In relation to the approval of administration costs, Justice Wigney requested the Administrators and the independent costs expert, Mr Ross Nicholas, to provide clarification of various issues before any orders are made. The Administrators will file this additional material by 23 June 2017 and will attend a further case management conference in the Federal Court at 9.30am on 28 June 2017. We will report further after that date.
SETTLEMENT ADMINISTRATION DOCUMENTS
FREQUENTLY ASKED QUESTIONS
The ASR Class Action was conducted against DePuy International Ltd, which manufactured the DePuy ASR hip implants, and against Johnson & Johnson Medical Pty Limited, which distributed and sold the DePuy ASR hip implants within Australia.
The ASR Class Action was commenced on behalf of “Group Members” who were implanted with an ASR Resurfacing Implant and/or ASR XL Total Hip Implant in Australia.
It was alleged that the ASR hip implants were defective in design, not fit for purpose and not of merchantable quality, and that DePuy and Johnson & Johnson were negligent. The Respondents denied these allegations and defended the proceedings. In the first half of 2015, there was a 17 week trial in the Federal Court of Australia. No judgment has been handed down by the Federal Court.
On 31 March 2016 it was announced that the parties had agreed to settle the ASR Class Action. The settlement was approved by the Federal Court on 29 June 2016.
The class action has been settled for $250 million plus interest, including legal costs.
No. The parties agreed to settle the DePuy ASR Class Action on a “no admissions” basis, which means that DePuy and Johnson & Johnson do not admit any liability or wrongdoing.
Group Members are patients who were surgically implanted with a DePuy ASR Resurfacing Implant and/or DePuy ASR XL Total Hip Implant by a doctor in Australia and who have not opted out of the Class Action.
You should speak to your doctor or the hospital if you are uncertain as to whether you were implanted with a DePuy ASR hip implant.
In the view of Maurice Blackburn and Shine Lawyers, the settlement is appropriate to resolve the class action and is in the interests of Group Members.
On 29 June 2016, the Federal Court found that the settlement is fair and reasonable and that it is in the interests of Group Members who have claims in the class action. The Federal Court’s reasons for approving the settlement were published on 1 December 2016 and can be downloaded here.
Not all Group Members will be eligible to receive compensation under the settlement. Only patients who were implanted with an ASR hip implant in Australia and who have had an “Actual ASR Revision” or “Deemed ASR Revision” will be eligible for compensation. These criteria are described in the Amended Settlement Scheme (see clauses 5.1, 5.2 and 5.3).
Group Members will not be eligible to receive compensation if they have opted out of the ASR Class Action or have previously accepted a final offer of compensation of their ASR claim.
The settlement will remain open for another seven or more years (until approximately 2023) for Group Members to register and make claims if they meet the eligibility criteria in the future.
If Group Members do not yet satisfy the eligibility criteria, they do not need to register at this stage. You will be able to register your claim in the future (as long as you do so within 6 months of your “Actual ASR Revision” or “Deemed ASR Revision”).
For example, if a Group Member’s ASR hip implant surgery occurred on 1 March 2009, and she then undergoes revision eight years later on 1 March 2017, the Group Member will become eligible to receive compensation (assuming that she also satisfies the other eligibility criteria). In this example, she will need to register her claim no later than 1 September 2017. Please refer to the registration deadlines and eligibility criteria for further information.
The Amended Settlement Scheme is a document that sets out the process for making and assessing claims by Group Members.
The Amended Settlement Scheme can be accessed here and from the Documents section of this website.
Maurice Blackburn and Shine Lawyers will work to distribute payments as quickly as possible.
However, there are a large number of Group Members whose claims will need to be individually assessed and determined, so it may take some time for all claims to be assessed.
Group Members who elect to receive a Fast Track Resolution will avoid the need to undergo individual assessment of their compensation entitlements, and will therefore be paid more quickly than those who proceed to individual assessment.
At this stage, we do not know when payments will be able to be made to Group Members.