Articles Posted in Products Liability

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On Friday, June 21st, Maryland’s ban on the sale of “hazardous” baby bumper pads will go into effect.

The Maryland Department of Health and Mental Hygiene has said that the ban is intended to help educate parents about safe sleep practices for babies. The ban applies to crib bumpers that are made of non-mesh type material, and are intended to rest directly above the mattress, along the length of the interior sides of the crib.

Violations for selling crib bumper pads to Maryland consumers involve warnings or a fine of up to $500 per item shipped or sold. I don’t think anyone was selling them here anyway. I think just gets the word out of the risks of these pads and that is a good thing.

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In mass tort cases, plaintiffs’ lawyers love MDLs. The hope for many lawyers who have mass tort cases is that they can sign up the client, let the MDL steering committee (a selected group of lawyers that take the lead on the cases) do the heavy lifting, and then join into the larger settlement. This is particularly true when you have a large volume of cases that are settling for a small or mid-sized amount of money. Because working these cases up individually is hard work with a limited payoff.

Plaintiffs’ lawyers instinctive love of MDLs dies quickly when they have a great case that they want to push forward as opposed to waiting for the sometimes torpid MDL to move forward. This is particularly true when you have an outlier case that you think has great value then other cases.

This takes us to Davis v. Biomet Orthopedics. Biomet is one of the manufacturers of the much-maligned metal-on-metal hip implants. These hip implants have two components made of metal. When the patient’s leg moves, the metal parts grind away at each other. This causes metal bits to shave off and to fall into the surrounding tissue, and sometimes into the patient’s bloodstream. Plaintiff in this case alleges that she was harmed by a defective prosthetic Biomet hip implant.
Continue reading →

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Even with over 2 million Mirena users, the FDA has received well over 45,000 reports of adverse events from women who use Mirena IUDs. Over 5,000 reports involve dislocation of the device, and about 1,500 involve movement of the device. This can be dangerous because the Mirena IUD has been linked to perforation injuries—it can puncture the uterus, causing severe and permanent injuries. A puncture wound may require surgery, or even a hysterectomy. The result? Lawsuits are increasingly mounting against Bayer. Continue reading →

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The Centers for Disease Control and Prevention (CDC) has warned about an outbreak of fungal meningitis that affects several states, including Maryland. Meningitis is a serious and potentially fatal infection near the brain and spinal cord that can cause brain damage or death. Anyone who is at risk should get to the hospital immediately for evaluation.

There is a huge buzz out there for potential cases. The Maryland Daily Record just wrote an article this morning about how lawyers are racing to these cases. Certainly, every lawyer with a website and/or a budget to run commercials is talking about these cases. Some of the information is very good and helpful to other attorneys and potential victims. Some of it is just liberally borrowed from another website that copied off of someone else. Some lawyers definitely know how to put the copy in copycat.

Anyway, this blog post tries to lay out the issue both for lawyers who many have potential cases and for potential victims looking for real information on these cases. Continue reading →

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If you have a pulse, you are familiar with Johnson & Johnson’s pain reliever, Tylenol. I’ll bet you anything if Tylenol was a person, it would be one of the 20 most recognizable people in the world. I project Tylenol just above Lady Gaga and just below Bill Clinton.

Johnson & Johnson’s legendary marketing machine has done an amazing job of promoting the brand, and developed several different versions of Tylenol, including liquids, solids, extra strength, and children’s varieties. Most of us have blithely thrown back Tylenol to overcome serious and not so serious pain.

No one is calling for a Tylenol recall. Used properly by an educated public, it is a great product. The question is whether Tylenol has soft pedaled the risk of liver injury.

With social media and everything else in the era, we hear so many statistics spouted out that no one is every paying attention anymore to the ones that really matter. So here’s the question: how many people went to the hospital last year with a Tylenol overdose, and how many people died from a Tylenol overdose? Think about it a second and actually make a good faith guess. The answer is after the jump. Continue reading →

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There are thousands of DePuy ASR hip replacement lawsuits, most of them alleging pain and defects that frequently require a revision hip surgery and implantation of a safer device (something that is not a metal-on-metal hip implant). Speaking frankly, I think most plaintiffs’ lawyers consider these DePuy cases to have high settlement and trial value. I really don’t think DePuy/Johnson & Johnson are going to be racing to the courthouse steps to try these cases. I’m betting these cases unfold like the Bayer Yaz cases: a lot of tough talk, but an abject fear of a trial which will lead to massive numbers of settlements.

Anyway, the DePuy ASR hip replacement injury cases, most of them consolidated in a type of class action known as an MDL, are heading to trial. Dates for two bellwether cases have been set—May 6, 2013 for one, and July 8, 2013 for the other.

We don’t know which cases are going to trial yet, only that two trials are set. Among the thousands (4,451 as of July 10) of DePuy hip implant cases filed and consolidated in the United States District Court for the District of Ohio, the lawyers get to pick. The judge has requested that each side choose four cases that they would like to see go to trial. The cases chosen must involve a revision surgery, and must satisfy certain discovery requirements.

Here’s the timeline, according to Case Management Order No. 14:

  • August 8, 2012: Each side selects four potential cases.
  • November 1, 2012: End of discovery for the eight selected cases. This is not full discovery, but limited discovery to help identify the ideal bellwether cases.
  • December 1, 2012: The parties should tell the court which of the eight cases should be bellwether cases. The parties can agree on the cases to be used.
  • December 15, 2012: If the parties do not agree on which cases should be bellwether cases, the court will pick four total (two primary cases, and two backup cases).

Additional time will be allocated for specific discovery in the four cases.
The bellwether trials are a vital part of the MDL process. The cases chosen are meant to guide both plaintiffs and defendants in deciding whether hip replacement settlements are possible, and for how much. It is instructive to see how a jury will evaluate these cases. For that reason, the parties oftentimes must fight the urge to pick what they see as the best cases—it is more instructive to choose garden variety cases that are representative of the majority of cases. That said, there is a certain appeal to winning the bellwether cases, even if they are not necessarily representative of the rest of the cases. Winning plays a huge psychological role in how the other side views their chances for the other cases. Continue reading →

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Finally, Stryker Recalls Defective Hip Implants

In a somewhat tight-lipped press release and website page, Stryker Orthopaedics notes that it is voluntarily recalling two components of its metal-on-metal hip implant devices. The hip implant recall, according to Stryker, is based on post-market surveillance, which means that there have been a lot of complaints and problems with the devices.

Interestingly, Stryker’s recall is qualified by its statement that “The incidence of complications associated with modular-neck stems is extremely low.” Stryker makes a neat little bit of history here by admitting its hip implants are a train wreck while at the same time defending the product to the hilt. Kids, don’t try this at home.

Anyway, the recalled hip implants include Stryker’s Rejuvenate and ABG II modular-neck stems. These are devices used to help the surgeons correct for anatomical abnormalities, by customizing the implant to the patient. Problems with the devices include corrosion, which can cause inflammation in the body with symptoms of pain and swelling. The original press release for the Rejuvenate hip implant stated that “Laboratory testing demonstrates the compatibility of these materials without concern for fretting and corrosion.”
Regardless of whether patients are experiencing pain or other symptoms, they should contact their orthopedic surgeons to determine whether a revision surgery is necessary, or whether the surgeon recommends monitoring of the implant. It’s not a bad idea to contact a lawyer, either. Medical device lawsuits have strict deadlines, and the failure to file a lawsuit within a short amount of time means that a lawsuit might not be allowed. For many patients, the clock may start ticking with this notice of recall.

Stryker set up a website for patients affected by the recall. Not much information there. Shocker. Continue reading →

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The U.S. District Court for Maryland issued an opinion this week denying summary judgment in Gilliespie v. Ruby Tuesday, a res ipsa premises liablity case.

The facts are simple. Plaintiff went to a Ruby Tuesdays in Aberdeen, Maryland for lunch. Before plaintiff and her friends were seated, a waiter stood on a chair and adjusted the lamp hanging above plaintiff’s table. A half hour later, the lamp came crashing down on the plaintiff.

How much would you bet that the waiter did something to cause that lamp to fall? I wouldn’t bet my house, but I would definately be willing to bet an amount that I would hate to lose.

But maybe you are less impulsive than I am and instead of making a quick bet, you would rather have more information. What would you want to know? The first thing on your list I’m sure would be what an inspection of the light fixture showed, right? Well Ruby Tuesday “attempted to preserve the shade after the incident” but lost the lamp in the “ordinary course of business.” With your best efforts you can’t keep a lamp that fell on someone’s head? It gives you a warm and fuzzy feeling about “We tried to keep dangerous toxins out of your food, but we did let some slip into your cajun jambalaya pasta in the ordinary course of business.” Continue reading →

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Patients with DePuy ASR hip implants, recalled in 2010, are making their way to trial. DePuy is a subsidiary of Johnson & Johnson, and they are defendants in a type of class action known as multidistrict litigation (MDL). There are over 6,000 lawsuits, about 4,000 in a federal Ohio court, and another 2,000 spread out in various state courts. There were over 93,000 hip implants recalled. August, 2013 update: we have won one and lost of one of these cases.

The hip implants were recalled because they are metal-on-metal implants, and doctors are finding out that the grinding of the metal joints causes metal debris to get loose, harm tissue, and enter the bloodstream. Additionally, the hip implants are failing at a higher rate than other types of implants.

Not all of the cases will go to trial—in the federal case, Judge Katz and the parties are selecting a few model cases to go to trial early. Those model cases are known as bellwether cases, and they are intended to be a springboard for settlement of the rest of the cases. The theory is, by having a few representative trials, the parties get a better idea of what a jury will do with these cases, and they can make informed decisions about whether to settle, and for how much. The federal trial will probably be set for early next year.

In the meantime, there are some earlier trial dates set in state courts. The first trial is set for Las Vegas in December, and another trial is set here in Prince George’s County, Maryland in January, 2013. Continue reading →

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The Pennsylvania Supreme Court stuck down a $5 million verdict in an Ethicon endocutter design defect case last week, finding that the trial court was not restricted to considering only one use of the device, and that it properly applied a risk-utility analysis. The case talks about product liability risk-utility analysis in the Restatement (Third) of Torts. You can read the court’s opinion here.

Plaintiff, a 40 year old mother, underwent gastric bypass surgery (Technically, she is the plaintiff’s decedent. I use “plaintiff” because my refusal to use plaintiff’s names on this blog, a stance that sometimes makes recitation of the facts awkward in wrongful death cases.). To cut and resection plaintiff’s stomach, her doctors utilized an ETS-Flex45 Articulating Endoscopic Linear Cutter – called an an “endocutter” – made by Johnson & Johnson, subsidiary Ethicon Endo-Surgery (Let’s say charitably that both of these companies are frequent flyer product liability defendants.). The device was designed for use in less-invasive endoscopic surgery, but also was marketed for use in traditional “open” surgery in which a large incision is used to view internal organs.

After complications, Plaintiff’s doctors conducted a second surgery and discovered that staples were absent in two small sections and attributed the problem to “mechanical staple failure.” Sadly, Plaintiff’s stomach contents had leaked into her abdominal cavity, causing sepsis, and her eventual death.

Plaintiff’s Estate filed a wrongful death suit contending that the endocutter was unreasonably dangerous because it was not equipped with a means to either measure the thickness of the tissue being stapled or lock the device if the tissue thickness was incorrect. Plaintiff’s Estate contended that had the endocutter been designed with with this capability, it would have prevented the staple line failure that caused Plaintiff’s death.

An Allegheny County, Pennsylvania jury agreed, finding the endocutter’s defective design caused the woman’s wrongful death and awarded $ 5 million, finding that the endocutter was defectively designed.

The big issue in the case was the application of the risk/utility analysis required in a products liability action to determine whether a product is unreasonably dangerous. In this case, the endocutter at issue was marketed for multiple recognized uses, but the injury to the plaintiff was caused by only one of those uses. So the question is whether the trial court’s risk-utility analysis should be limited to the use that caused the plaintiff injury or should it consider all of the uses of the product. Continue reading →