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Drake v. Depuy Orthopaedics, Inc.

United States District Court, N.D. Ohio, Western Division

December 19, 2017

Andrea K. Drake, et al., Plaintiffs
v.
DePuy Orthopaedics, Inc., et al., Defendants

          MEMORANDUM OPINION

          Jeffrey J. Helmick, United States District Judge.

         This matter is before me on the Plaintiffs' motion to enforce the master settlement agreement and vacate the arbitration award (Doc. No. 7), Johnson's response (Doc. No. 10), Plaintiffs' reply (Doc. No. 11), Johnson's reply (Doc. No. 12), Johnson's supplemental memorandum (Doc. No. 16), and Plaintiffs' response (Doc. No. 17). On January 4, 2017, I heard oral argument on the pending motion. Also before me are Johnson's post-hearing supplemental brief (Doc. No. 24), and Plaintiffs' post-hearing supplemental brief (Doc. No. 25).

         I. MDL Background

         This case is one of many which comprise this multidistrict litigation involving the DePuy ASR hip device which was transferred to this Court in December 2010 by the Judicial Panel on Multidistrict Litigation:

The actions share factual issues as to whether DePuy's ASR XL Acetabular Hip System, a device used in hip replacement surgery, was defectively designed and/or manufactured, and whether DePuy failed to provide adequate warnings concerning the device, which DePuy recalled along with another ASR device, the ASR Hip Resurfacing system, in August 2010.

In re DePuy Orthopaedics, Inc., ASR Hip Implant Products Liability Litigation, Case No. 10-md-2197 (N.D. Ohio) (Doc. No. 1). In addition to this MDL, litigation began in numerous state courts including coordinated state court proceedings in California, New Jersey, and Illinois. My colleague, Judge David A. Katz, was assigned this litigation by the Judicial Panel on Multidistrict Litigation.

         In January 2011, Judge Katz held a hearing to address initial matters pertaining to this MDL. (Doc. No. 7). He entertained presentations by 82 of the 95 applications seeing appointment to the plaintiffs' leadership. (Doc. No. 63). After the leadership was established (Doc. No. 71), and at the first official status hearing, the leadership detailed the efforts aimed at discovery, including development of an explant protocol. (Doc. No. 63). There was discussion by both sides regarding coordination with state courts, specifically California and New Jersey, as was done in Judge Katz's prior MDL. (Id.) Judge Katz advised there would be monthly meetings of the leadership to keep the litigation on track.

         The leadership and their committees began their work in earnest and met regularly with the Court. By the middle of 2013, over 8, 500 cases had been filed in this MDL docket with nearly 12, 000 individual plaintiffs.[1] The leadership worked collaboratively with each other and the cooperating state courts to create “a singular work product[2] encompassing the document review, depositions, experts, trial strategies, preparation and exhibits” for use in those respective jurisdictions. (CMO 16, Doc. No. 620).

         At a hearing on November 19, 2013, this Court along with state court judges from California, New Jersey, Illinois, and Maryland, announced the parties had reached a private, global settlement agreement. Judge Katz then appointed a Plaintiffs' Oversight Committee to:

[A]ddress prospective resolution, build consensus, effectuate a fair settlement for all who may qualify under the terms of a private resolution agreement, and assist and oversee the program which would be developed as a result of any private resolution as well as interact with those federal and state courts having jurisdiction over cases relating to the ASR Hip matter and take all actions necessary and/or incidental to the fair resolution of claims of those individuals entitled to compensation under the terms of said private resolution agreement.

(Id. at pp. 2-3.)

         In conjunction with the DePuy Master Settlement Agreement, the Court approved the appointment of a Claims Administrator and three Special Masters to provide review of the claims process as well as address disputes related to the settlement. (CMO No. 17, Doc. No. 636). One of those individuals named as a Special Master was Cathy Yanni. Special Master Yanni is affiliated with JAMS[3] and she also had some involvement with Mr. Drake's fee dispute, as will be discussed further in this opinion.

         This settlement and subsequent settlements have resulted in resolution for thousands of claimants who had the ASR device implanted. By the summer of 2016, the total number of cases in the MDL was reduced to approximately 2, 500. Sadly, Judge Katz passed away unexpectedly at the end of July 2016, and this docket was transferred to me on September 2, 2016. (Doc. No. 1079).

         Having provided a brief background of the MDL, I now turn to the Plaintiffs' specific case.

         II. The Drake Litigation

         Plaintiff William Drake, a Minnesota resident, received DePuy ASR implants in both hips on or before May 2008. As noted previously, DePuy recalled the ASR device in the late summer of 2010.

         On January 24, 2012, Mr. Drake signed an attorney representation agreement to have Steven M. Johnson represent him in the DePuy litigation[4]. In accordance with this representation, Attorney Johnson secured authorizations from Mr. Drake and obtained a number of his medical records. Attorney Johnson also advised Mr. Drake to notify his office if a revision surgery were to occur.

         On November 28, 2012, Andrea K. Drake, William Drake's wife, contacted Attorney Johnson's office to advise them of an upcoming revision surgery for her husband. She also indicated Mr. Drake would be securing other counsel to represent him in his claim. On November 30, 2012, Attorney Johnson filed a short-form complaint on behalf of Mr. and Mrs. Drake in the MDL. William Drake v. DePuy Orthopaedics, Inc. et al., 1:12-dp-24036 (N.D. Ohio).

         On December 5, 2012, Mr. Drake contacted Attorney Johnson's office to advise he had new counsel, Charles H. Johnson (no relation to Steven M. Johnson), a lawyer in Mr. Drake's resident state of Minnesota. Mr. Drake underwent a revision of his left hip on December 17, 2012.

         In January 2013, Mr. Drake terminated Charles Johnson's representation and hired the firm of Meshbesher & Spence, which continues to serve as his counsel. (Doc. No. 10-3 at p. 7).

         On January 24, 2013, the Meshbesher firm filed a suit for the Drakes in the District of Minnesota alleging injuries attributable to the ASR hip implants. That case was transferred by the Judicial Panel on Multidistrict Litigation to the Northern District of Ohio on February 6, 2013, and became part of this MDL. Andrea K. Drake, et al. v. DePuy Orthopaedics, Inc., et al., 1:13-dp-20140.

         In late March 2013, Attorney Johnson put the Meshbesher firm on notice of his fee lien.

         On June 24, 2013, a stipulation of dismissal was filed in the initial lawsuit filed by Attorney Johnson and contained the following language:

The parties further agree and stipulate that this dismissal shall have no effect on Plaintiff's pending case in the United States District Court, Northern District of Ohio, filed by the law firm of Meshbesher & Spence, Ltd. on January 24, 2013 (Case No. 1:30-dp-20140).
The Parties further recognize that the Johnson Law firm has asserted a claim on any recovery the Plaintiff may make for any injuries related to the DePuy ASR for the full amount of all monies that JLF is entitled to under the terms of its contract with the Plaintiff and that this dismissal shall have no effect on those claims.

Case No. 1:12-dp-24036 (Doc. No. 3).

         The Meshbesher firm submitted the Drakes' claims for resolution via the private settlement agreement in the MDL. At the time of the hearing on this matter, at least one settlement claim remained outstanding.

         At the end of July 2013, Attorney Johnson initiated arbitration regarding the fee dispute with JAMS in Dallas, Texas. While that arbitration request was pending, Johnson filed suit against Drake seeking to compel arbitration in the Northern District of Texas on August 1, 2014. Johnson v. Drake, Case No. 4:14-cv-611 (N.D. Tex.).

         By mid-August 2014, Drake entered an appearance in the JAMS arbitration with the arbitration formally commencing on August 27, 2014. Three months later in the Texas federal district court litigation, Judge John McBryde dismissed Johnson's federal case for lack of personal jurisdiction over Mr. Drake. (Id. at Doc. No. 22).

         In 2015, the JAMS arbitrator, Hon. Glen Ashworth (ret.), established deadlines. Attempts at resolution delayed the start of the arbitration until 2016.

         On February 16, 2016, Mr. Drake attempted to invoke the MDL arbitration process before Special Master Cathy Yanni through JAMS. Attorney Johnson promptly filed a Petition to Compel Arbitration in the Northern District of Texas, Dallas Division, against Mr. Drake on February 22, ...


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