Why You Shouldn’t Hire A “Cheaper” Lawyer For The DePuy Settlement

Two weeks ago, a tentative settlement agreement was announced in the litigation over the defective DePuy ASR hip implants. The official website is here.

It’s a claims process (like what was used to resolve the Vioxx and BP Oil Spill cases). The terms are rather convoluted – for the full details, read this PDF of the formal agreement itself and start at page 34 – but the end result is that most patients who had an ASR hip implant which was then replaced anywhere between 180 days and 5 years after implantation will start with a “base award” of $250,000, which will then be adjusted upwards or downwards based on a variety of individual factors.

I’d go into more details in this post but, really, you shouldn’t be looking around online for this information, you should be talking to your lawyer about it. And that’s where I want to focus this post: on the relationship between ASR claimants and their lawyer.

As The New York Times reported, not everyone is happy with the settlement:

Patients injured by a flawed hip implant sold by Johnson & Johnson have directed their anger at myriad places over the years. The regulatory system that allowed the product’s sale. The company that repeatedly denied problems with the device. Even the doctors who implanted the hips. Now, some patients have found a new target for their ire: the legal system and the lawyers they hired to sue Johnson & Johnson.

Some patients like Van Fleming, a retired mortgage loan officer, wonder why they bothered to hire a lawyer. After published reports of A.S.R.-related problems began to appear several years ago, lawyers flooded television stations and the Internet with solicitations seeking clients.

Mr. Fleming, 66, said he believed his lawyer spent about $400 on filing fees and from $2,000 to $3,000 to get copies of his medical records. Lawyers like Mr. Fleming’s who were not involved in settlement talks could walk away with $90,000 a case, and some firms, by advertising aggressively, gathered hundreds of claims.

“I don’t think it is fair at all,” said Mr. Fleming, who lives in Greenville, N.C., referring to the terms of the deal.

I get where he’s coming from. The settlement strikes me personally as too low, given what I’ve seen my clients go through. But we need to be realistic here: the alternative to this settlement isn’t the same claims process with bigger numbers, it’s years of continued litigation and uncertainty before a trial is even scheduled. A bird in the hand is better than two in the bush.

Mass torts cases have sometimes been described as “Goliath vs. Goliath,” given the considerable investments of time and resources that plaintiff’s lawyers invest in them. But that’s a misleading description: truth is, mass torts cases like the defective hip recalls only end when the defendant corporation gets tired of them and wants to pay to end it. If Johnson & Johnson wanted to keep fighting these cases for the next couple decades, they could. That’s what has happened in asbestos since the 1980s. That’s what Roche Pharmaceuticals has done with the Accutane cases. That’s what the transvaginal mesh companies are doing. It’s not like the plaintiff’s lawyers are cutting and running; the plaintiff’s lawyers have negotiated the best they can get out of Johnson & Johnson and DePuy at this point, and have taken it to the clients for their approval.

To the claim that only lawyers “involved in the settlement talks” should be able to recover anything, I say this: Johnson & Johnson wouldn’t have even sat down at the table if it wasn’t for the hundreds of firms across the country putting their time and money on the line to review, prepare, file, and pursue these cases. There is strength in numbers; this settlement is only here at all because all these cases were filed and properly put together by the firms that weren’t involved in the settlement talks.

But the real purpose of this post is to address a disturbing trend has emerged since the settlement was announced: some law firms have tried to swoop in and pick up other law firm’s clients by offering them a “deal” with a lower contingent fee. Let me tell you in no uncertain terms: that is unethical for the “new” firm to offer, and it’s not going to work for the client or the new law firm.

As a general matter, lawyers are entitled to quantum meruit – latin for “the amount they are owed” – for the work they do on a case. If a lawyer represents an injured client for 5 years, invests tens of thousands of dollars in the case, negotiates a settlement offer, and then the client fires them and takes the offer, the lawyer is still entitled to be paid for all the work they did.

The same principle applies here: firing the lawyer you’ve had for years to bring on a “cheaper” one isn’t going to mean you owe the original lawyer less, it just means you’ll also owe the new lawyer something, and the original lawyer will send a “lien” to DePuy to make them escrow the amount due as their fee until a court decides it. (Additional, the ASR settlement agreement itself, consistent with quantum meruit, deems claimants who had a lawyer and then fired it for the settlement to be “unrepresented,” which means they won’t be entitled to as much in the settlement.)

Short story is: you can always fire your lawyer for any reason or no reason at all, but you’ll have to pay them for what they did. Don’t try to score a deal here by going for a “cheaper” lawyer – in the end, you’ll still owe your prior lawyer, but you’ll also owe the new lawyer.