United States District Court, N.D. Ohio, Western Division
Andrea K. Drake, et al., Plaintiffs
DePuy Orthopaedics, Inc., et al., Defendants
Jeffrey J. Helmick, United States District Judge.
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).
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
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.
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
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. The leadership worked
collaboratively with each other and the cooperating state
courts to create “a singular work product encompassing the
document review, depositions, experts, trial strategies,
preparation and exhibits” for use in those respective
jurisdictions. (CMO 16, Doc. No. 620).
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
(Id. at pp. 2-3.)
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 and she also had some involvement with Mr.
Drake's fee dispute, as will be discussed further in 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.
provided a brief background of the MDL, I now turn to the
Plaintiffs' specific case.
The Drake Litigation
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
January 24, 2012, Mr. Drake signed an attorney representation
agreement to have Steven M. Johnson represent him in the
DePuy litigation. 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.
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).
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.
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.
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.
March 2013, Attorney Johnson put the Meshbesher firm on
notice of his fee lien.
24, 2013, a stipulation of dismissal was filed in the initial
lawsuit filed by Attorney Johnson and contained the following
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).
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.
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.).
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).
2015, the JAMS arbitrator, Hon. Glen Ashworth (ret.),
established deadlines. Attempts at resolution delayed the
start of the arbitration until 2016.
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, ...