March 2014 Subrogation Newsletter
The long-standing and dysfunctional approach to subrogating against foreign manufacturers has become the primary reason why pursuing Chinese manufacturers is difficult and expensive. Many clients are not told, until it is too late, that even if service is painstakingly accomplished and a default judgment is obtained, collecting on the judgment becomes even more difficult than obtaining it. Many lawyers seem aware or unwilling to say it, so let’s be clear – China will not enforce a U.S. judgment. Period. The good news is that our experience demonstrates it is possible to improve results if you get creative and are willing to challenge traditional notions of how these claims should be handled. If you are interested in learning how some of the industry’s best are improving results on claims involving foreign manufacturers, read this article.
Late last year, DePuy reached an agreement to settle an estimated 8,000 hip implant products liability claims for $2.475 billion. The DePuy settlement program does have limitations on who may participate, namely that the claimant had to have undergone a revision surgery on or before August 31, 2013. From a subrogation perspective, the most interesting feature of the program is that DePuy has agreed to handle lien claims separately from the claimants’ monetary awards. Not all liens are “qualified liens” under the agreement. DePuy has limited its lien resolution obligation to liens directly related to compensable revision surgeries and medical expenses incurred for treatment related to the reasons for the recall of the implants. Now is a crucial time. The enrollment deadline for eligible plaintiffs is April 1, 2014.
Minnesota and Hawaii don’t have a lot in common. However, the Minnesota Court of Appeals – of all places – recently laid down some rather novel and earth-shattering law regarding PIP subrogation in Hawaii. In American Family Mut. Ins. Co. v. American Automobile Ass’n d/b/a Auto Club Ins. Ass’n, 2013 WL 656493 (Minn. 2013), the Court single-handedly resurrected common law PIP subrogation in the Aloha State. PIP subrogation in Hawaii has been dead for years. Even PIP reimbursement rights have been in limbo and most practitioners even argued that it should be given last rites. Now, it is in full chaos.