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Joseph H. Saunders
Joseph H. Saunders
Attorney • (800) 748-7115

DePuy ASR Extraordinary Injury Fund Benefits Released

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The basic terms of the DePuy ASR hip implant settlement offer were released at the end of November 2013. That offer to settle hip implant revision lawsuits provides for an average $250,000 payment to patients who had to have a recalled DePuy ASR hip implant removed as a result of metallosis. The DePuy ASR metal on metal hip implant was recalled in August 2010. The offer requires at least 94% of those with lawsuits for hip failures to participate or DePuy was a right to withdraw from the settlement. The full terms of the offer are available at the official settlement website at www.usasrhipsettlement.com.

The terms of the extraordinary injury fund were just released last Monday December 23,2014.  This fund is to provide additional payments to those who have suffered more severe injuries or complications beyond a basic replacement of their hip implant.

In summary, this extraordinary injury fund provides additional benefits for complications such as pulmonary embolism, deep vein thrombosis, dislocations, foot drop, infection, delayed recovery, heart attack, stroke, and death. It also provides for discretionary payments for complications or losses that may not be known or anticipated at this time.

Set forth below are the terms of this supplemental program.

PART B AWARD SCHEDULE

 

THE EXTRAORDINARY INJURY FUND

 

For purposes of providing Extraordinary Injury Fund benefits to those QUSCs eligible to receive such payments, the following Past and Future Matrices are established (the “Matrices”) by the Settlement Oversight Committee in accordance with the terms of the Settlement Agreement dated November 19, 2013 (the “Agreement”). 1

 

The Past and Future Matrices are divided into levels (the “Matrix Levels”) that describe the amount that a QUSC is entitled to recover based on (1) the complication that he/she has experienced; in most instances, (2) the severity of that complication; and, in some instances,

(3) the QUSC’s age at the time that the complication was recognized.

 

If a QUSC is eligible for Extraordinary Injury Fund (EIF) Benefits, such QUSC shall receive the amounts stated in applicable Matrix levels, subject to the General Reductions and Matrix Level specific reductions set forth below. It is possible that the stated amounts will be reduced based solely upon (1) the number and nature of EIF benefits that Claimants are eligible to receive and (2) DePuy’s maximum funding obligation.

 

General Reductions

 

If a QUSC is unrepresented, as defined in Section 4.4, all of the amounts set forth in the applicable Matrix Levels will be reduced by 29% after the application of all additional reductions.  Additionally, there will be a Court approved deduction for common benefit fees and expenses.

 

If a QUSC died within 5 years of the date of the QUSC’s ASR Revision Surgery and the QUSC is not entitled to an Award under Matrix Level VI, all of the amounts set forth in the applicable Matrix Levels will be reduced by 25%.

 

PAST MATRIX

 

The Matrix is separated into levels that are based upon the varying complications that entitle QUSCs to EIF Benefits. These levels are as follows:

 

 

 

I.         PAST MATRIX LEVEL I (RE-REVISION)

 

Eligibility.  QUSCs who, prior to April 1, 2014, have undergone a Re-Revision that meets the following criteria will be entitled to additional benefits under this Matrix Level I:

 

 

 

 

 

 

1   All references to a “Section” in this Schedule are to the corresponding section of the Agreement.

 

o The Re-Revision involved removal of the cup of a hip device implanted in the QUSC during his/her ASR Revision Surgery on the same hip or during a subsequent Re- Revision Surgery on the same hip following the ASR Revision Surgery; and

 

o The Re-Revision was not necessitated by trauma (as defined in Section 1.2.35).

 

Benefits. Under Matrix Level I, a QUSC receives benefits as follows:

 

o $150,000 for a first Past Re-Revision and $ 75,000 for each additional Past Re-Revision

 

o Any award under this Matrix Level I shall be reduced by 25% if it relates to a hip in which an ASR Hip Implant was inserted as a revision device.

 

o The maximum number of compensable Re-Revisions under this Matrix Level I shall be three per hip in which an ASR Hip Implant has been removed. Additional Re-Revisions may, at the discretion of the Team and the SOC, be compensable under Matrix Level VII.

 

II.        PAST MATRIX LEVEL II (MAJOR COMPLICATIONS)

 

Eligibility. A QUSC who suffers and/or has suffered any of the following Major Complications (as demonstrated through contemporaneous medical records) will be entitled to benefits under this Matrix Level II:

(1)        Pulmonary Embolism (“PE”) Or Deep Vein Thrombosis (“DVT”): Eligibility: Under Section 8.4.9, a QUSC who, prior to April 1, 2014, suffers either a

pulmonary embolism (an obstruction of an artery in the lungs caused by a blood clot) or deep vein thrombosis (condition in which a blood clot forms in one or more of the veins in the legs or pelvis) that meets the following criteria will be entitled to additional benefits under this Matrix Level II:

 

o The PE or DVT was diagnosed during the hospitalization for the ASR Revision Surgery or Covered Re-Revision Surgery—Past;2 and

 

o The QUSC required additional hospitalization for treatment of the PE or DVT.

 

Benefits: Under Matrix Level II, a QUSC further receives $30,000 for a PE and $15,000 for a DVT subject to the following:

 

o A QUSC is entitled to only one PE or DVT Benefit per ASR Revision Surgery or

Covered Re-Revision Surgery (the greater of which applies) (Section 8.4.9.2); and

 

 

2 QUSCs who suffered and were diagnosed with a pulmonary embolism or deep vein thrombosis in close temporal proximity to (in no event greater than 60 days), but following, the hospitalization for the ASR Revision Surgery or Covered Past Re-Revision Surgery may be entitled to an award under this Section, based upon a process to be determined by the Team and the SOC at a later date provided that the ASR Revision Surgery or Covered Past Re- Revision Surgery was a cause of the PE or DVT. (Section 8.4.9.1.1)

 

 

o The maximum number of compensable PEs and/or DVTs shall be two. (2) Dislocations:

Eligibility: Under Section 8.4.10.1, a QUSC who, AFTER an ASR Revision Surgery and prior to April 1, 2014, suffers one or more dislocations of the prosthetic femoral head of the hip that underwent an ASR Revision Surgery, as documented in contemporaneous medical records, and who underwent a closed reduction in a hospital or an open reduction in a hospital will be entitled to additional benefits under this Matrix Level II.

 

Benefits: Under Matrix Level II, a QUSC further receives $15,000 for each dislocation managed in a closed reduction; and $ 50,000 for each dislocation managed in an open reduction subject to the following limitations.

 

o The maximum number of compensable dislocations shall be three per hip in which the cup of an ASR Hip Implant had been removed.

 

o There will be a 50% reduction in the stated awards where the QUSC had experienced 2 or more dislocation events PRIOR to his/her ASR Index Surgery (Section 8.3.10.1.3).

 

o A dislocation event after an ASR Revision Surgery or Covered Past Re-Revision Surgery that is caused or precipitated by Trauma (as defined in Section 1.2.35) does not entitle a QUSC to any award under this Section. (Section 8.4.10.1.2).

 

 

 

(3)        Foot Drop:

 

Eligibility: Under Section 8.4.11, QUSCs who suffer an injury to the peroneal nerve as a result of the ASR Revision Surgery or a Covered Re-Revision Surgery – Past, resulting in the inability to lift the front part of the foot shall be entitled to an award under this Matrix Level II where the following criteria are met:

 

o The Foot drop is manifested through objective physical examination during the hospitalization for the ASR Revision Surgery or Covered Past Re-Revision Surgery, as documented in contemporaneous medical records.

 

o The foot drop is ultimately diagnosed as a peroneal nerve injury and continues to manifest itself 90 days after the ASR Revision Surgery or a Covered Re-Revision Surgery – Past.3

 

 

 

3 If that QUSC’s foot drop continues to exist, as evidenced by contemporaneous medical records, on the date that is

365 days after an ASR Revision Surgery or Covered Re-Revision Surgery and that QUSC also qualifies for a Benefit under Matrix Level III (DELAYED RECOVERY) , that QUSC will receive the greater of the Matrix Level II or Matrix Level III benefit.

 

Benefits: Under Matrix Level II, a QUSC further receives a one-time benefit of $ 20,000 for a Foot Drop.

 

(4)        Infection:

 

Eligibility: Under Section 8.4.12, QUSCs, who prior to April 1, 2014, underwent treatment for an Infection (i) associated with the ASR Revision Surgery or a Covered Past Re- Revision Surgery, and (ii) documented in the contemporaneous medical records shall be entitled to a benefit under this Matrix Level II.4

 

Benefits: Under Matrix Level II, a QUSC can receive further benefits as follows:

 

o $10,000 where the QUSC underwent > 8 weeks (defined as 56 days) of continuous intravenous antibiotic treatment5;

 

 

 

 

 

 

4 Infection Limitation:    Pursuant to Section 8.4.12.1.1, the SOC and the Team will create a process for evaluating claims of QUSCs whose contemporaneous medical records indicate that they had a periprosthetic joint infection at the time of their ASR Revision Surgery, as evidenced by ANY of the following criteria:

 

  • A sinus tract communicating with the affected prosthetic joint;

 

  • A pathogen isolated by culture from at least two separate tissue or fluid samples obtained from the affected prosthetic joint prior to or during the ASR Revision Surgery hospitalization (where at least one of the samples is obtained prior to or during the Revision Surgery)

 

  • Any four (4) of the following six (6) sub-criteria:

 

A.   elevated serum erythrocyte sedimentation rate and serum C-reactive protein concentration;

 

B.   elevated synovial white blood cell count,

 

C.   elevated synovial polymorphonuclear percentage (PMN%), D.   presence of purulence in the affected joint,

E.   isolation of a microorganism in one culture of periprosthetic tissue or fluid, and

 

F.   greater than 5 neutrophils per high-power field in 5 high-power fields observed from histologic analysis of periprosthetic tissue at 400X magnification.

 

(See Parvizi et al, J. Arth. Vol. 26, No 8, 2011). Consulting physicians from the University Hospitals of Cleveland may be employed to assist in this evaluation process which, pursuant to Section 8.4.12.1.3, may result in a reduction to amounts stated in Matrix Levels I, II, and II.

 

5 A QUSC who receives IV antibiotics for > 6 continuous weeks but less than 8 continuous weeks may, at the discretion of the Team and the SOC, receive compensation under Matrix Level VII.

 

o $30,000 where the QUSC underwent an open surgical procedure with prosthesis retention

(e.g., debridement and/or insertion of antibiotic beads); or where the QUSC was

implanted with an antibiotic spacer;

 

o A QUSC can receive only one Matrix Level II award (the greater of which applies) due to Infection, regardless of the length or number of infections claimed, and only if eligible to receive a Part A Base Award (Section 8.4.12.1.2).

 

o A QUSC who receives a Matrix Level II award due to infection may additionally qualify to receive a Matrix Level III award.

 

 

 

(5)       Miscellaneous Major Complication:

 

Eligibility. The Team and the SOC, based upon  review of contemporaneous medical records, and, where necessary, consultation with an appropriate specialist at the University Hospital Health Systems of Cleveland, may qualify a QUSC to receive benefits for a Major Complication not enumerated above where (i) the Major Complication was directly related to the reason necessitating, or directly arising from, an ASR Revision Surgery or Covered Re-Revision Surgery; and (ii) the Major Complication occurred prior to April 1, 2014.

 

Benefits: The Team and the SOC will exercise discretion in determining the QUSC’s

Award under this provision, not to exceed $50,000.6

 

III.      PAST MATRIX LEVEL III (DELAYED RECOVERY)

 

Eligibility. A QUSC who has suffered any of the following injuries will be entitled to further benefits under this Matrix Level III:

 

(1)        Foot Drop (a peroneal nerve injury qualifying as a Major Complication under Matrix Level II) but that is documented in contemporaneous medical records as continuing to exist on the date that is 365 days after an ASR Revision Surgery or Covered Re-Revision Surgery; or

 

(2)        An injury due to an infection (qualifying as a Major Complication under Matrix Level II), that is documented in contemporaneous medical records as continuing to exist on or after the date that is 365 days after the diagnosis of the Qualifying Infection; or

 

(3)        A Miscellaneous Injury (qualifying as a Miscellaneous Major Complication under Matrix Level II) but that is documented in contemporaneous medical records as continuing to exist on the date that is 365 days after an ASR Revision Surgery or Covered Re-Revision Surgery.

 

 

5 If contemporaneous medical records demonstrate that a QUSC’s Miscellaneous Major Complication is causally related to an Injury on the date that is 365 days after an ASR Revision Surgery or Covered Re-Revision Surgery and that QUSC qualifies for a Benefit under Matrix Level III (DELAYED RECOVERY), that QUSC will receive the greater of the Matrix Level II or Matrix Level III Benefit.

 

 

Benefits.  Under this Matrix Level III, a QUSC will be further entitled to a one-time benefit that is based upon (1) the QUSC’s age on the date of his/her first ASR Revision and (2) the defined severity level, as follows:

 

Age on Date of ASR Revision

 

Severity Level           ≤ 40            41-49           50-59            60-69             ≥70

Moderate * $144,000 $113,000 $83,000 $57,000 $34,000
Severe ** $288,000 $227,000 $167,000 $114,000 $68,000

 

 

* “moderate” means the QUSC experiences pain requiring daily use of prescription pain medication or a gait alteration requiring the use of crutches, a cane or walker for a substantial portion of activities of daily living provided that, but for the reasons necessitating the ASR Revision Surgery, the ASR Revision Surgery or a Covered Re- Revision Surgery, the QUSC would not be experiencing pain requiring the daily use of prescription pain medication or a gait alteration requiring the use of crutches, a cane or walker for a substantial portion of activities of daily living. Evidence of circumstances pre-dating the implantation of an ASR Hip Implant is relevant to this determination.

 

** “severe” means the QUSC requires the use of a wheelchair for a substantial portion of activities of daily living or underwent an amputation provided that, but for the reasons necessitating the ASR Revision Surgery, the ASR Revision Surgery or a Covered Re- Revision Surgery, the QUSC would not require the use of a wheelchair for a substantial portion of activities of daily living or would not have undergone an amputation.

Evidence of circumstances pre-dating the implantation of an ASR Hip Implant is relevant to this determination.

 

 

 

IV.       PAST MATRIX LEVEL IV (MYOCARDIAL INFARCTION)

 

Eligibility. QUSCs who, prior to April 1, 2014, have suffered a myocardial infarction (i) during the ASR Revision Surgery or Covered Past Re-Revision Surgery, or (ii) during the hospitalization for the ASR Revision Surgery or Covered Past Re-Revision Surgery will receive an award under this section (Section 8.4.13).7

 

Benefits.  Under this Matrix Level IV, an eligible QUSC will receive a an award that is based upon (a) the pre- and post- myocardial infarction change in Functional Classification (as defined by the New York Heart Association) and (b) the QUSC’s age on the date of the myocardial infarction, as follows (Section 8.4.13.1.2):

 

 

 

7 QUSCs who suffered a myocardial infarction in close temporal proximity to (in no event greater than 30 days), but following, the hospitalization for the ASR Revision Surgery or Covered Past Re-Revision Surgery may be entitled to an award under this Section, based upon a process to be determined by the Team and the SOC at a later date, provided that the ASR Revision Surgery or Covered Re-Revision Surgery was a cause of the myocardial infarction (Section 8.4.13.1.1).

 

Age on Date of Myocardial Infarction

 

 

Complication

Level

≤ 40            41-49           50-59            60-69             ≥70

 

1 class change $280,000 221,000 $162,000 $110,000 $66,000
2 class change $320,000 $252,000 $185,000 $126,000 $76,000
3 class change $360,000 $284,000 $208,000 $142,000 $85,000

 

 

o Only one Award may be given under Matrix Level IV, regardless of the number, type or location of myocardial infarctions suffered (Section 8.4.13.3).

 

o To the extent that a QUSC’s Myocardial Infarction leads to the continuous use of a cane, walker or wheelchair, the QUSC will only be eligible to receive a benefit under this Matrix Level IV and will not also be eligible to receive a benefit under Matrix Level III.

 

o There will be a 10% reduction of the stated award under this Matrix Level IV where the

QUSC (or Product User) was a current smoker at the time of ASR Revision Surgery.

 

o There will be a 10% reduction of the QUSC’s award under this Matrix Level IV where the QUSC (or Product User) had a BMI of 35 or greater at the time of the ASR Index Surgery and a 25% reduction of the QUSC’s award under this Matrix Level IV where the QUSC (or Product User) had a BMI of 40 or greater at the time of the ASR Index Surgery.

 

 

 

 

V.        PAST MATRIX LEVEL V (STROKE)

 

Eligibility. QUSCs who, prior to April 1, 2014, suffered a Stroke (i) during the ASR Revision Surgery or Covered Past Re-Revision Surgery, or (ii) during the hospitalization for the ASR Revision Surgery or Covered Past Re-Revision Surgery, is entitled to an award under this section (Section 8.4.14.1).8

 

Benefits.  Under this Matrix Level V, a QUSC will receive an award that is based upon (a) the American Heart Association Stroke Outcome Classification and (b) the age of the patient on the date of the stroke, as follows:

 

 

 

8 QUSCs who suffered a stroke in close temporal proximity to (in no event greater than 30 days), but following, the hospitalization for the ASR Revision Surgery or Covered Past Re-Revision Surgery may be entitled to an award under this Section, based upon a process to be determined by the Team and the SOC at a later date, provided that the ASR Revision Surgery or Covered Re-Revision Surgery was a cause of the stroke (Section 8.4.14.1.1).

 

Age on Date of Stroke

 

Stroke

Outcome

Classification          < 40           41-49           50-59            60-69              >70

Level I $360,000 $285,000 $209,000 $143,000 $85,000
Level II $412,000 $325,000 $239,000 $163,000 $97,000
Level III $464,000 $366,000 $268,000 $183,000 $110,000
Level IV $516,000 $407,000 $299,000 $203,000 $123,000

 

 

o A transient ischemic attack or “TIA” is not considered a stroke for purposes of this section (Section 8.4.14.2.1).

 

o Only one Award may be given under Matrix Level V, regardless of the number or types of stroke suffered (Section 8.4.14.3).

 

o To the extent that a QUSC’s Stroke leads to the continuous use of a cane, walker or wheelchair, the QUSC will only be eligible to receive a benefit under this Matrix Level V and will not also be eligible to receive a benefit under Matrix Level III.

 

o There will be a 10% reduction of the stated award under this Matrix Level V where the

QUSC (or Product User) was a current smoker at the time of ASR Revision Surgery.

 

o There will be a 10% reduction of the QUSC’s award under this Matrix Level V where the

QUSC (or Product User) had a BMI of 35 or greater at the time of the ASR Index

Surgery and a 25% reduction of the QUSC’s award under this Matrix Level V where the QUSC (or Product User) had a BMI of 40 or greater at the time of the ASR Index Surgery.

 

 

 

VI.       PAST MATRIX LEVEL VI (DEATH)

 

Eligibility. A QUSC whose Product User died (i) during the ASR Revision Surgery or

Covered Past Re-Revision Surgery, or (ii) during the hospitalization for the ASR Revision

 

Surgery or Covered Past Re-Revision Surgery is eligible to receive an award under this Matrix

Level VI (Section 8.4.14.5).9

 

Benefits.  A Representative Claimant’s compensation under Matrix Level VI will be as follows:

 

(1)        he/she will receive a minimum payment of $50,000 (Section 8.4.14.6.1);

 

(2)        he/she will receive $206,000 if the QUSC was married on the date of death

(Section 8.4.14.6);

 

(3)        he/she will receive $100,000 multiplied by the number of minor children (under the age of 18), if any, on the date of the QUSC’s death (Section 8.4.14.6);

 

(4)        he/she will receive $25,000 multiplied by the number of adult children (age 18 or older), if any, on the date of the QUSC’s death (Section 8.4.14.6);

 

(5)        he/she will receive $50,000 multiplied by the number of parents, if any, on the date of the QUSC’s death (Section 8.4.14.6); and

 

(6)        Where applicable under state law, an award pertaining to a deceased Product User’s lost income under this section will be calculated as the sum of the following: (x) the percentage of the “adjusted current annual income” equal to the number of days from the date of death to the end of the year divided by 365; and (y) the present value of the future “adjusted current annual income,” beginning the year following the death, ending the year of the Product User’s 62nd birthday, and discounted to the Date of Enrollment at a net interest rate of 1.0% (which percentage is calculated as the difference between 3.0% growth and a 4.0% discount rate), less an amount for personal consumption. If the Product User had no such income or was age 62 or older at the time of death, then there is no payment for lost wages under this section. (Section 8.4.14.6.2)

 

 

 

o A QUSC who is eligible to receive Death benefits under this Matrix Level VI will be ineligible to receive benefits under other Matrices for injuries suffered during or as a result of the same ASR Revision Surgery or covered Re-Revision Surgery.

 

o Under no circumstances should the total benefits recoverable under this Matrix Level VI

exceed $800,000.

 

 

 

 

 

 

 

9 A QUSC whose Product User died in close temporal proximity to, but following, the hospitalization for the ASR Revision Surgery or Covered Past Re-Revision Surgery may be entitled to an award under this Section, , based upon a process to be determined by the Team and the SOC at a later date, provided the ASR Revision Surgery or Covered Past Re-Revision Surgery was a cause of the death (Section 8.4.14.5.1).

 

o There will be a 10% reduction of the stated award under this Matrix Level VI where the

QUSC (or Product User) was a current smoker at the time of ASR Revision Surgery.

 

o There will be a 10% reduction of the QUSC’s award under this Matrix Level VI where the QUSC (or Product User) had a BMI of 35 or greater at the time of the ASR Index Surgery and a 25% reduction of the QUSC’s award under this Matrix Level VI where the QUSC (or Product User) had a BMI of 40 or greater at the time of the ASR Index Surgery.

 

 

 

VII.      PAST MATRIX LEVEL VII (DISCRETIONARY)

 

Eligibility.  A QUSC who, as a result of an ASR Revision Surgery or covered Re- Revision Surgery or a condition directly related to the reason necessitating an ASR Revision Surgery or covered Re-Revision Surgery, suffers a truly extraordinary injury and/or loss that was either not anticipated or not provided for under Matrix Levels I-VI , at the discretion of the Team and the SOC, may be entitled to benefits (Section 8.4.15.1-2). Following are intended to be exemplar – but in no way exhaustive – of the types of claims that may be considered under this Matrix Level VII:

 

o A QUSC’s unreimbursed (out-of-pocket) loss of earnings. The threshold for eligibility will be 20% of the QUSC’s aggregate annual income for the two (2) years preceding his/her ASR Index Surgery and under no circumstances will the benefit exceed $150,000. (Section 8.4.15.1).

 

o A QUSC’s surgery(ies) wherein only the QUSC’s acetabular cup-liner was removed and replaced, will be entitled to $80,000 for the QUSC’s first liner replacement and $40,000 for each subsequent liner replacement, not to exceed three compensable liner replacements. Such a QUSC is not entitled to a payment for Re-Revision under Matrix Level I.

 

o A QUSC’s surgery that involved only the removal of a component other than a cup or liner in the hip where the ASR Hip Implant had been removed may be considered under this Matrix Level VII if the removal was directly related to the reason necessitating an ASR Revision Surgery or Covered Re-revision Surgery.

 

o A QUSC’s Age of < 50 at the time of the QUSC’s ASR Revision Surgery may be considered under this Matrix Level VII.

 

o A medical contraindication delaying a QUSC’s ASR Revision Surgery resulting in a reduction to a Part A Base Payment may be considered under this Matrix Level VII.

 

o A QUSC’s eligibility to receive benefits pursuant to Matrix Levels I-VI in no way precludes such QUSC from receiving benefits pursuant to this Matrix Level VII.

 

Benefits.  The Team and the SOC will exercise discretion in determining the amount any award under this Matrix Level VII

 

 

 

 

 

FUTURE MATRIX

 

The Future EIF Matrix is intended to compensate QUSCs who qualify for a Part A Base Award and who, on or after April 1, 2014 but within two years of an ASR Revision Surgery, suffer a unique or extraordinary injury in connection with the ASR Revision Surgery, a subsequent Re-Revision Surgery or that directly relates to the reason necessitating an ASR Revision Surgery or Covered Re-Revision Surgery (Section 8.5.1).

 

The categories of compensable extraordinary medical conditions to be provided for in the Future Extraordinary Injury Fund are the same as those provided for in the Past Extraordinary Injury Fund, namely: (1) Covered Re-Revision, (2) Pulmonary Embolism/Deep Vein Thrombosis, (3) Dislocation, (4) Foot Drop, (5) Infection, (6) Delayed Recovery, (7) Myocardial Infarction, (8) Stroke, (9) Death, and (10) Miscellaneous Extraordinary Injury or Damages. However, definitions and or qualifying criteria for eligibility may differ from those stated in the Past Matrix.

 

The Future EIF Matrix is divided into Matrix Levels that describe the amount that a QUSC is entitled to recover based on (1) the complication that he/she has experienced; in most instances, (2) the severity of that complication; and, in some instances (3) the QUSC’s age at the time that the complication was recognized.

 

If a QUSC is eligible for Future EIF Benefits, such QUSC shall receive the applicable amount set forth in the applicable Matrix level, subject to the Reductions set forth below.

 

If a QUSC is unrepresented, as defined in Section 4.4, the amounts set forth in the applicable Matrix Levels will be reduced by 29% after the application of all additional reductions.  Additionally, there will be a Court approved deduction for common benefit fees and expenses.

 

If a QUSC died within 5 years of the date of the QUSC’s ASR Revision Surgery and the QUSC is not entitled to an Award under Future Matrix Level VI, the amounts set forth in the applicable Future Matrix Levels will be reduced by 25%.

 

 

 

I.         FUTURE MATRIX LEVEL I (RE-REVISION)

 

Eligibility.  Under Section 8.5.6, QUSCs who, on or after April 1, 2014, undergo a Re- Revision that meets the following criteria will be entitled to additional benefits under this Future Matrix Level I:

 

o The Re-Revision involved removal of the cup of a hip device implanted in the QUSC during his/her ASR Revision Surgery on the same hip or during a subsequent Re- Revision Surgery on the same hip following the ASR Revision Surgery;

 

o The Re-Revision occurred on or before the date that is 547 days after another Covered

Re-Revision Surgery on that hip;

 

o The Re-Revision occurred on or before the date that is two (2) years of the date of the

ASR Revision Surgery on that hip; and

 

o  The Re-Revision was not necessitated by trauma (as defined in Section 1.2.35).

 

Benefits.  An award under this Future Matrix Level I shall be calculated in the same manner and subject to the same limitations and reductions as an award under the Past Matrix Level I, except that the Future Matrix Level I award will be subject to a reduction of up to 75%.

 

 

 

II.        FUTURE MATRIX LEVEL II (MAJOR COMPLICATIONS)

 

Eligibility. A QUSC who on or after April 1, 2014, suffer any of the following Major Complications as documented in contemporaneous Medical Records, may be entitled to benefits under this Matrix Level III:

 

(1)        Pulmonary Embolism (“PE”) Or Deep Vein Thrombosis (“DVT”):

 

Eligibility.  Under Section 8.5.7, QUSCs who, on or after April 1, 2014 but within two years of an ASR Revision Surgery, suffer either a PE or DVT that meets the criteria set forth in Past Matrix Level II (1) will be entitled to additional benefits under this Future Matrix Level II (1), all subject to the qualifications, reductions and limitations set forth in the Past Matrix Level II (1).

 

Benefits: An award under this Future Matrix Level II (1) shall be calculated in the same manner and subject to the same qualifications, reductions and limitations as an award under the Past Matrix Level II (1), except that the Future Matrix Level II (1) award will be subject to a reduction of up to 75%.

 

(2)        Dislocations:

 

Eligibility: Under Section 8.5.8, QUSCs who suffer a dislocation occurring i) on or after April 1, 2014; ii) within 365 days after the date of a Covered Re-Revision Surgery (Past or Future) on that hip and iii) within two (2) years of the ASR Revision Surgery on that hip, will be entitled to additional benefits under this Future Matrix Level II (2), all subject to the qualifications, reductions and limitations set forth in the Past Matrix Level II (2).

 

Benefits: An award under this Future Matrix Level II (2) shall be calculated in the same manner and subject to the same limitations as an award under the Past Matrix Level II (2), except that the Future Matrix Level II (2) award will be subject to a reduction of up to 75%.

 

 

 

(3)        Foot Drop:

 

Eligibility: Under Section 8.5.2, QUSCs who, on or after April 1, 2014 but within two years of an ASR Revision Surgery, suffer an injury to the peroneal nerve peroneal nerve as a result of the ASR Revision Surgery or a Covered Re-Revision Surgery (Past or Future) that meets the criteria set forth in Past Matrix Level II (3) will be entitled to benefits.

 

Benefits: An award under this Future Matrix Level II (3) shall be calculated in the same manner and subject to the same limitations as an award under the Past Matrix Level II (3), except that the Future Matrix Level II (3) award will be subject to a reduction of up to 75%.

 

(4)        Infection:

 

Eligibility: Under Section 8.5.9, QUSCs, who, on or after April 1, 2014, undergo treatment for an Infection that is diagnosed (i) on or before a date that is 547 days after a

Covered Re-Revision Surgery (Past or Future); (ii) within two (2) years from the date of the ASR Revision Surgery, (ii) documented in the contemporaneous medical records, and (iii) which required surgical debridement with prosthesis retention, a Covered Future Re-Revision Surgery

in either a one or two-step procedure, arthrodesis, or extended intravenous antibiotic treatment of at least eight (8) consecutive weeks in length, shall be entitled to an award under this Future Matrix Level II (4), subject to the qualifications, limitations and reductions set forth in Past Matrix II (4) and Section 8.4.12.

 

Benefits: An award under this Future Matrix Level II (4) shall be calculated in the same manner and subject to the same limitations as an award under the Past Matrix Level II (4), except that the Future Matrix Level II (4) award will be subject to a reduction of up to 75%.

 

(5)       Miscellaneous Major Complication:

 

Eligibility. The Team and the SOC, based upon  review of contemporaneous medical records, and, where necessary, consultation with an appropriate specialist at the University Hospital Health Systems of Cleveland, may qualify a QUSC to receive benefits for a Major Complication not enumerated above where (i) the Major Complication was directly related to the reason necessitating, or directly arising from, an ASR Revision Surgery or Covered Re-Revision Surgery and (ii) the Major Complication occurred on or after April 1, 2014 but within two years of an ASR Revision Surgery.

 

Benefits: The Team and the SOC will exercise discretion in determining the QUSC’s

Award under this provision, not to exceed $25,000.10

 

III.      FUTURE MATRIX LEVEL III (DELAYED RECOVERY)

 

 

 

 

 

 

10  If contemporaneous medical records demonstrate that a QUSC’s Future Miscellaneous Major Complication is causally related to an Injury on the date that is 365 days after an ASR Revision Surgery or Covered Re-Revision Surgery and that QUSC qualifies for a Benefit under Future Matrix Level III (DELAYED RECOVERY), that QUSC will receive the greater of the Future Matrix Level II or Future Matrix Level III benefit.

 

Eligibility. A QUSC who, on or after April 1, 2014 and within 2 years of an ASR Revision Surgery, has suffered a Injury that meets the criteria set forth in Past Matrix Level III will be entitled to benefits.

 

Benefits.  An award under this Future Matrix Level III shall be calculated in the same manner as set forth in the Past Matrix Level III, except that the Future award will be subject to a reduction of up to 75%.

 

IV.       FUTURE MATRIX LEVEL IV (MYOCARDIAL INFARCTION)

 

Eligibility. A QUSC who, on or after April 1, 2014 and within 2 years of an ASR Revision Surgery, suffers a Myocardial Infarction that meets the criteria set forth in Past Matrix Level IV will be entitled to benefits.

 

Benefits.  An award under this Matrix Level IV – Future shall be calculated in the same manner and subject to the same limitations and reductions as set forth in Past Matrix Level IV, except that the Future award will be subject to a reduction of up to 50%.

 

V.        FUTURE MATRIX LEVEL V (STROKE)

 

Eligibility. A QUSC who, on or after April 1, 2014 and within 2 years of an ASR Revision Surgery, suffers a Stroke that meets the criteria set forth in Past Matrix Level V will be entitled to benefits.

 

Benefits.  An award under Future Matrix Level V shall be calculated in the same manner and subject to the same limitations and reductions as set forth in Past Matrix Level V, except that the Future award will be subject to a reduction of up to 75%.

 

VI.      FUTURE MATRIX LEVEL VI (DEATH)

 

Eligibility. A QUSC whose Product User, on or after April 1, 2014 and within 2 years of an ASR Revision Surgery, suffers a death that meets the criteria set forth in Past Matrix Level

VI, will be entitled to benefits.

 

Benefits.  An award under this Future Matrix Level VI shall be calculated in the same manner and subject to the same limitations and reductions as set forth in Past Matrix Level VI, except that the Future award will be subject to a reduction of up to 75%.

 

 

 

VII.      FUTURE MATRIX LEVEL VII (DISCRETIONARY)

 

Eligibility. A QUSC who, on or after April 1, 2014 and within 2 years of an ASR Revision Surgery, suffers an extraordinary injury that meets the criteria set forth in Past Matrix Level VII, will be entitled to benefits.

 

Benefits.  An award under this Future Matrix Level VII shall be calculated in the same manner as set forth in Past Matrix Level VII, except that the Future award will be subject to a reduction of up to 75%.