Maryland Injury Lawyer Blog

Can Maryland Biomet Hip Claim Move Forward?

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 "Maryland Hip Replacement Lawsuit Federal Court Opinion" »

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 "Mirena IUD Lawsuits in Maryland" »

Steroids Causing Meningitis

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 "Defective Steroids Cause Meningitis in Maryland" »

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 "Tylenol/Acetaminophen Lawsuits in Maryland" »

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 "DePuy Hip Implant Claim Update: August 13, 2012" »

We give our thoughts on dealing with Chubb Insurance in Maryland accident claims here. If you have any thoughts based on your experience in Maryland or elsewhere with Chubb, please share it in the comments below.

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 "Defective Stryker Metal-on-Metal Hip Implant Recall" »

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 "New Maryland Res Ipsa Opinion" »

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.

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 "Johnson & Johnson/DePuy Hip Implant Recalls: Lawsuit Update" »

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 lawsuit 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 "Risk/Utility in Strict Liability Design Defect Claims" »

Pat Malone writes a guest blog on Don Keenan's Trial Blog arguing that confidential settlements undermine public safety and justice. His point is that confidential settlements make it harder for future plaintiffs to get evidence and information they need to bring out all of the facts about the defendant's conduct.

Specifically, Malone suggests:

Here’s one tip for avoiding last-minute pressure from the defense to cave into a secrecy agreement: Be proactive. Tell the defense counsel at some appropriate point – such as with any settlement demand letter or in a pre-mediation communication – that you will not agree to secrecy because of the ethical issues. This can be one item on a list of settlement conditions.

Pat Malone is an extremely well respected lawyer who not only gets great results for his client, but also graciously spends a lot of time helping other personal injury lawyers. I also agree with his premise: there is doubt doubt that confidential settlements make it harder for the next plaintiff. This also make the company less accountable, too, in the big picture.

But here's the problem: people who have been badly injured, even the best of people, have a hard time focusing on the global interests of plaintiffs everywhere when they are fighting and scrapping to be compensated for their injuries. And I have a hard time telling them that they should.

Let me give you a case in point. We recently settled a case with a Fortune 500 company. No discussion of confidentiality in the settlement discussions. You know what comes next. They send a release with a confidentiality clause. We balk. They say, "Okay, let's try the case."

Boy, I hate being bullied by big companies. I try hard not to take these things personally. But they were so arrogant in the way they delivered their ultimatum. They never would had the guts to play it through and I knew it. So we plotted a "file a motion to enforce the settlement and, in the off chance we lose, we try it" strategy. In angry detail. With our feathers up and blood boiling, we forgot, ah, that we have a client. So we call the client. She could not care less about confidentiality. She wants to execute the settlement and get her money.

So what do you do? I know what we did: we put our hurt pride on a shelf and sent the client the release.

Continue reading "Confidential Settlements" »

In the United States alone, approximately 581,000 knee replacement surgeries are performed each year. Getting a knee replacement is clearly a big deal: if you need a replacement, you have really run out of options with the knee problems that you are having. So knee replacement surgery is the last line of defense for patients suffering from extensive fractures, arthritis and/or osteoarthritis.

Continue reading "Zimmer Knee Replacement Problems" »

There are a number of claims percolating involving Multaq is a drug used for cardiac arrhythmias (irregular heartbeat). Multaq treats the physically and emotionally dangerous atrial fibrillation and atrial flutter. Multaq was hoped to be a safer drug but now there are serious concerns about Multaq's potential to cause serious kidney injuries.

We provide a very complete overview of Multaq liver damage lawsuits on our website.

The history of "bad cholesterol" has had a checkered past. Bayer's cholesterol-reducing blockbuster Baycol allegedly caused more than 100 deaths. Bayer paid over $1 billion to settle the Baycol cases.

Now come Crestor and Zocor, two more widely prescribed prescription strength drugs designed to lower "bad cholesterol". Both drugs allegedly cause serious muscle and kidney problems, including the potentially fatal, muscle-destroying condition rhabdomyolysis. This blog post focuses on Zocor.

Zocor (simvastatin) is a statin drug used to treat a condition known as hypercholesterolemia (better known as high cholesterol) in people at risk of developing coronary artery disease.
Statins block the ability of the liver to produce cholesterol, so that the body takes any cholesterol it needs from food. It all sounds good in theory.

Zocor's big competitive advantage in the cholesterol drug wars? It was cheaper. A lot cheaper. The old, "you get what you pay for" cliché does not usually apply to drugs. The price is usually arrived at through an amalgamation of factors that don't involve comparative efficacy. But in this case, it might hold up: at least one study has found that 80mg of Zocor was not as effective at reducing heart risks compared to the same dose of Lipitor.

But let's get back to the point. In 2010, 2.1 million people in the United States were prescribed Zocor at a dose of 80mg. This dosage is particularly effective, in that it lowers LDL cholesterol by an additional 6% versus a 40mg dose. More drug, more cholesterol reduction. This makes sense.

Continue reading "Zocor Lawsuits" »

The FDA is currently investigating a possible association between the diabetes drug Actos (pioglitazone) and an increased risk of bladder cancer.

Actos is commonly prescribed to treat type 2 diabetes and works by increasing the body’s sensitivity to insulin. It is usually taken once a day by mouth. By all accounts, Actos helps treat type 2 diabetes, which is undoubtedly an awful disease. But there are other diabetes options where there is no suggestion of a link to cancer. The questions that doctors are going to have to answer are whether Actos is worth the risk of cancer and whether there are other less risky options available. Ultimately, juries are also going to be asked these questions, too. They will also have to dig into the other question: what did the manufacturer of Actos know or should it have known about the association between cancer and Actos and should they have issued a recall for Actos or at least provided a warning of the risk?

The bubbling concerns about Actos culminated in a safety announcement dated June 15, 2011, wherein the FDA warned the public that “use of the diabetes medication Actos (pioglitazone) for more than one year may be associated with an increased risk of bladder cancer.” Information about the potential risk will be added to the Warnings and Precautions label for medicines that contain Actos, and the corresponding patient Medication Guides will also be updated to reflect information on bladder cancer. In response to the FDA’s actions, the drug’s manufacturer (Takeda) has undertaken a 10-year observational study to assess the long-term risk of bladder cancer associated with the use of Actos.

Continue reading "Actos and Cancer" »

MGA Entertainment will recall 6,200 units of the Bratz Makeup Design Sketch Book. Bizarrely, this toy may be contaminated with Staphylococcus warneri and Staphylococcus intermedius. MGA is recalling products produced between November 5, 2010 and February 25, 2011.

From the FDA on these things you have never heard of in your life:

S. warneri rarely causes disease in humans. Wounds in the eye increase risk of infection and may result in symptoms such as pain and decreased visual acuity. S. intermedius is a very rare cause of infection in humans and risks are typically associated with veterinary exposures. For certain individuals, such as those with compromised immune systems, introduction into the eye by either microorganism may result in infection, which, if left untreated, may lead to sight-threatening complications.

So these are probably relatively low risk infections but, then again, what were the odds your kid's makeup design sketch book was contaminated in the first place?

Buried on MGA Entertainment's website is this information on the recall.

Reminding everyone that there are still sewing machines out there, Janome America will recall 600 Elna sewing machines. The problem? Fire. The wires in the Elna sewing machine can short circuit and cause a fire. There is already one report of a fire.

Almost two years ago now, Medicaid/Medicare liens became even more difficult to deal with as the law pushed to the lawyers and insurance companies the obligation of confirmation and resolution of Medicare/Medicaid liens. I'm sure betting an insurance company has yet to receive a fine for not verifying a lien before paying a personal injury settlement. But nobody wants to be the first.

Medicare, Medicaid and State Children's Health Insurance Program Extension Act of 2007 created so many headaches people starting fighting back. In Haro v. Sebelius, an Arizona case in U.S. District Court, Medicare beneficiaries (and, interestingly, a personal injury lawyer in his own capacity) challenged - as a class - two things: (1) Can Medicare/Medicaid (hereinafter "Medicare because I'm sick of the slash) “require prepayment of a reimbursement claim before the correct amount is administratively determined where the beneficiary either appeals or seeks a waiver of the MSP reimbursement claim?, and (2) Are personal injury lawyers financially responsible for reimbursement if they do not hold or immediately turn over to Medicare their clients’ personal injury settlement awards.

Personal injury lawyers are completely in a pickle on these liens. Our clients want their money; we want to get them the money they are entitled to get. The question is whether personal injury attorneys are precluded from giving the clients their settlement money until after Medicare’s claim has been satisfied, and, let's be honest, whether Medicare can recover the reimbursement claim directly from the attorney if the client fails to pay the reimbursement claim after the settlement money has been turned over to the client.

Continue reading "Medicare Liens: New and Better Law?" »

Our lawyers are reviewing Topamax birth defect lawsuits in Maryland.

Topamax causes an increased risk of oral birth defects - most prolifically cleft lips and cleft palates - in children's mothers took Topamax while pregnant. That's not plaintiffs' lawyers spinning: the FDA is saying this.

Topamax lawsuits argue that the manufacturer either knew or turned a blind eye to the fact that Topamax caused these birth defects.

If your child has a birth defect and the child's mother was taking Topamax, visit our Topamax lawsuit information center and learn more about Topamax birth defect claims. Our lawyers will provide to you at no cost a free evaluation of your potential Topamax lawsuit in Maryland. Call 800-553-6000 or get a on-line consultation.

Jury Verdict Research published data on verdicts in severe leg injury cases over the 10 years prior to October 2010. By severe, I mean severe: crush injuries and amputations. The average verdict in these cases is approximately $4,000,000 and the median verdict is $2,400,000 for injuries to one or both legs, as well as leg injuries resulting in varying degrees of leg amputations. The leg amputation categories include both traumatic and surgical amputations.

I was surprised by the relatively insignificant difference between above the knee and below the knee amputations: $3,958,003 average/$2,588,649 median above the knee versus $4,930,186 average/$3,727,500 median below the knee. The average value for bilateral amputations jumps to $13,392,589 average. But the median is $5,012,500 which is a statistically insignificant difference from a single above the knee amputation.

This is interesting data and useful to use in negotiating your case. But asking the numbers to make sense is asking too much.

• Valuing cases: how lawyers, claims adjusters, and ultimately, juries determine money damages in personal injury cases
• Value of fractured and broken legs in car accidents.