Tipp FM Legal Slot, 4th December 2012
John M. Lynch on DePuy Hip Recall & G v G[soundcloud id=’167065932′]
Over the next few weeks leading up to Christmas we will review key legal areas from 2012. Today I will begin with the DePuy ASR Hip Implant Recall and the judgement of G v. G which is relevant to people who may be going through a separation or divorce.
Next week we will review the Budget 2013 and the following week John Lynch will speak to listeners about Mediation, as an alternative to Court, and the Personal Insolvency Bill.
DePuy ASR Hip Implant Recall
At this stage in the year what is the next step for your DePuy clients?
We have been meeting with our clients to assess their cases one on one and for many proceedings have now been issued. For DePuy patients who have not initiated proceedings it is important for them to “stop the clock” and pursue a claim before it is too late.
Proceedings in this jurisdiction are at an early stage and no case has yet reached the point where it is ready to run before the Court. In other countries however proceedings are more advanced.
Proceedings in the United States are at a more advanced stage and many of our clients regularly query the status of litigation in the United States.
In early August 2012, three Depuy ASR hip claims were settled in the United States. These cases were listed for trial on December 3, 2012 and it is likely that their case would have been the first ASR hip complaints to go to trial in the United States. All three of the patients had their ASR hip devices removed and replaced (revised). Like many settlements involving larger corporations, the terms of this settlement remain confidential.
While the December 2012 trial is no longer moving forward given the settlement, there is another jury trial set by a Maryland state court judge set to begin in January 2013. The Maryland trial is also on behalf of three patients with recalled Depuy ASR hip implants that had to be replaced. If a settlement is not made before January 2013, Johnson & Johnson subsidiary DePuy will have to explain what caused the defective hip product.
Joint Oireachtas Committee
We were invited to attend the Joint Oireachtas Committee on Health Discussion on the issue of the DePuy Hip Recall. This took place on Thursday the 19th July at Leinster House.
Presentations were made by a number of interested bodies including Patient Focus, Medical Injuries Alliance, the Irish Medicines Board and the Health Service Executive.
It was clear from the presentations that to date the root cause of the problem with these DePuy ASR hips has not yet been clearly identified. There is emerging evidence of increased revision rates associated with large head metal on metal hip replacements.
Remind us again, how many people in Ireland received the DePuy ASR hip implants and where did the surgeries take place?
The HSE have indicated that in Ireland, 4,746 of the products or components in question were distributed, with 3,317 patients identified as having received one of more of the components. These patients were spread equally across 16 public and 14 private hospital sites. The HSE also reported that 357 patients have had revision surgery and a further 166 are presently scheduled for revision.
We spoke previously about the need for DePuy patients to be monitored, who is covering the cost of these appointments?
An issue that has been raised by many of our clients is the duration of funding for revision surgery. The HSE has now indicated DePuy has agreed to fund monitoring and treatment of patients in perpetuity (for as long as needs be) and not simply for the short period of five years as they initially indicated.
You have often spoken about alternatives to Court on the show, has any suggestion of mediation between DePuy and the patients been made?
It is also now clear that attempts were made to allow those affected by the DePuy recall to make submissions for personal compensation without recourse to the courts and the associated cost and time burden. DePuy declined to engage in this mediation process.
G v. G
What is the background G v. G, the “second bite of the cherry” divorce case?
The case, G. v. G. involved a married couple who wed in 1977. During their marriage, they lived in a house which the husband had inherited from his aunt and uncle. The wife brought £3,000 in savings to the marriage. During this period, they ran a farm and garage and the husband also made property deals later. They separated after 18 years of marriage in 1995 and entered in to a separation agreement in 1996. Under the 1996 agreement, the wife had been given a house, a lump sum of £70,000 which she failed to invest and was paid maintenance which had been increased in 2007 to £2,400 a month. The separation agreement contained a “full and final settlement clause.”
Was the wife successful in her application for divorce even though the separation agreement had a clause to the effect that it was “full and final”?
In March 2009, more than 20 years after the separation, the wife sought a divorce and the High Court directed the husband to pay €1 million to buy her a different home, plus €900,000 in two sums, VHI payments and €54,000 a year in maintenance.
What was the Supreme Court’s view on appeal?
On appeal, the Supreme Court said that substantial weight should be given to a separation agreement, especially when it was concluded some time ago and there was no dramatic change in circumstances of the parties. In this particular case, the court was prepared to accept that a deterioration in health was a change in circumstance and also that a significant decrease in the value of a person’s assets would also be a change in circumstances.
It is going to be very interesting to see how the lower courts will apply “the change in circumstances” test to any subsequent divorces where there is an existing separation agreement.
Interestingly, the court also said that the standard of living of a spouse following divorce should be in tune with that enjoyed when the marriage ended, not with a level later attained by the other spouse if they subsequently amassed further wealth.
How has the Supreme Court recommendations changed the traditional view on proper provision and inherited assets?
The Supreme Court stressed that “proper provision” for both spouses does not require a redistribution of wealth and a person who becomes very wealthy following a separation is not obliged to increase the money paid to the other spouse under a separation agreement, unless the increased wealth is the result of a joint venture.
The Court also said that inherited assets should not be seen as assets obtained by both parties in a marriage. This latter point should prove to be crucial in the future to farmers, for e.g. who find themselves in this situation. How the farm was bequeathed to the married couple from the previous generation would be central to any division of its worth.
What did the Supreme Court ultimately decide?
Chief Justice Denham allowed the appeal and sent the case back to the High Court with the comment that the level of provision ordered by the High Court was excessive.