DEPUY ASR HIP IMPLANTS

The DePuy ASR Hip Implants Class Action Settlement Administration is now in its final stages and we anticipate it will be concluded by the end of 2024.

There are several significant steps that the Administrator needs to take to conclude the Settlement Administration.

One of those steps is seeking updated actuarial advice on the amount of a final top up payment that can be made to Eligible Group Members. The final top up payment is expected to be in the order of 4-5% of a Group Member’s total assessed compensation. This means that for a Unilateral Fast Track Claim the final top up payment would be around $2,000 and for an Individual Assessment Claim with a total assessed compensation amount of, for example, $150,000 this would be around $7,000.

The steps required to conclude the settlement administration and prepare to make the final top up payments to eligible group members have been more complex and time consuming than anticipated.

We now expect the final top up payments will be made to eligible group members some time between October 2024 and December 2024.

The Administrator has communicated with all Eligible Group Members by email (or post) to explain what steps must be taken to receive a final top up payment.

The Administrator needs to seek court approval before proceeding with the final top up payment and at this stage cannot provide Group Members with any more specific information about the timing and amount of the final top up payment. We will provide a further website update after the court orders are made.

Please do not contact the Administrator to ask how much and when the final top up payment will be made as we are unable to tell you a precise date at this stage.

Our team are focussed on completing the steps necessary to make the final payments as quickly as possible, and we are unable to respond to individual queries from group members at this time.

On 19 June 2020, the Administrators of the settlement (Maurice Blackburn and Shine Lawyers) appeared before Justice Wigney in the Federal Court of Australia in Sydney to provide the annual update to the Court regarding the progress of the settlement administration.

Progress of the settlement administration

There are now 1,775 registered claims in the class action. Of these registered claims, 148 have been found to be ineligible and 1,561 claims have received final payment.

The remaining claims (approximately 66) are in the process of being assessed and finalised, with many of these in the final stages. New registrations continue to be accepted in accordance with the Settlement Scheme however the number of new registrations remains low.

Future ‘top-up’ payment

Based on the actuarial advice received in June 2019 and the progress of the settlement administration over the past 12 months, the Administrators maintain their expectation that there will be a surplus in the settlement fund at the conclusion of the settlement administration and that a ‘top-up’ payment will be made to all eligible group members. The estimate of the top up payment at the time of the last actuarial advice was between 10% and 20% on top of the payment that will have already been paid to eligible group members. This estimate may change and is subject to further actuarial advice.

Further actuarial advice will be obtained towards the end of 2020 or early part of 2021, with the likely top up payment to be made during the first half of 2021.

Further amendments to the Settlement Scheme

In June 2019 and again in June 2020, the Administrators foreshadowed to the Court that over the course of 2020 steps would be taken by Maurice Blackburn and Shine Lawyers to rationalise the role of the Administrators in light of the small number of ongoing claims and projected future claims. This will result in Maurice Blackburn having sole responsibility for the settlement administration. Orders have been proposed to the Court and are expected to be formally made in the first half of 2021. 

Administration costs

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 approved by the Court as per the Court Orders available on this website.

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. 

Administration costs

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. 

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.

Administration Costs

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.

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).

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

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.

Administration Costs

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.