Maryland Injury Lawyer Blog

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.

The Maryland Daily Record has an article today by Lawyers USA writer Sylvia Hsieh on the expected wave of lawsuits involving Darvocet and Darvon. The gist of the article is that this is the next big thing: "Plaintiffs’ personal injury attorneys are gearing up to initiate an onslaught of litigation against makers of the popular painkillers Darvon and Darvocet."

There is no question there are going to be a lot of lawsuits with very good cases. We are looking at Darvocet/Darvon cases and have a webpage devoted to these claims. But I really do not think this is the next big mass tort. I think there are going to be a small number of good cases and a lot of cases that go nowhere.

Continue reading "Darvocet Lawsuit Predictions" »

The Insurance Journal reports a rise in legal malpractice claims. Incredibly, there has been no hand wringing about increased malpractice rates for lawyers or fears that lawyers will no longer be able to keep their practices open as their insurance rates rise. We have never had a legal malpractice claim yet our rates continue to increase. No one cries for us.

A part of the rise in the number of legal malpractice claims is countersuits against lawyers who are suing their clients to pay their bill. But I think the larger problem is what the article calls "door law," a phrase I have never heard before but I really like. Door law is when lawyers take any client who walks through the door who might generate a fee. When law firms step outside their areas of expertise, bad things are going to happen.

Continue reading "Refer Your Personal Injury Cases to Us. Seriously." »

A woman injured in a car accident has filed a lawsuit against Four Loco, the makers of the controversial drink that combines alcohol and caffeine. The lawsuit against Four Loco claims that the driver of the car the woman was in had drank Four Loco before the car accident that injured the Plaintiff. The lawsuit names the driver (presumably the woman's friend), Four Loco's manufacturer, and even drags in the convenience store that sold the Four Loco. (The great, great grandson of the first man to combine rum and coke was not named.)

I am assuming the lawsuit stems from the FDA's warning last week that Four Loco and other caffeine-alcohol drink manufacturers have used caffeine as an unsafe food additive in the drinks. The FDA left the door open for further action.

Continue reading "Four Loco Lawsuit" »

Certainly, the title is a little hyperbolic. But at the Maryland Court of Appeals Rules Committee meeting this morning, a memorandum was issued from Chief Judge Robert M. Bell requesting a study of how other jurisdictions have dealt with the comparative negligence doctrine.

Just a study, mind you. But this memo jumps right to the heart of the matter.

If the Court were to consider replacing the doctrine of contributory negligence, a common law doctrine in Maryland, with some form of comparative negligence with some sort form of comparative fault:

(a) whether in the Committee's view, the Court could effect that change by Rule, as opposed to judicial decision.

(b) if the Court were to consider the adoption of such a Rule, what form and content of the Rule should be; and

(c) what related legal principles, such as joint and several liability, would need to be considered concurrently.

Well thank you for not beating around the bush, Judge Bell. There is also a specific request for the consideration of views of the Maryland Defense Counsel, the Maryland Association for Justice, and the Maryland State Bar Association.

Timely, I wrote about the interplay between joint and several liability and comparative negligence this week. In terms of what position these groups take, I think it will all depend on joint and several liability. If joint and several liability remains unchanged, Maryland plaintiffs' lawyers would support comparative negligence and Maryland defense attorneys would be obligated to make a big stand in opposition (although that is a lot of show, many self-interested defense lawyers get that more opportunities for plaintiffs' is more opportunities for them). But if it is a swap of comparative for abolishing joint and several liability, this becomes a more, for lack of a better word, nonpartisan issue where fractions are going to split off within the interest groups.

Continue reading "Maryland Comparative Negligence on the Way?" »

The U.S. Supreme Court will likely deadlock 4-4 in a seat belt design defect wrongful death lawsuit against where Mazda is arguing that Plaintiff's claim is preempted by federal law. The seat belt at issue is a lap-only seat belt, which I think sounds defective on its face by most of us. Mazda does not make them anymore. Neither does anyone else.

A tie is a win for Mazda because it won the case below. Justice Elena Kagan is sitting this one out because, as Solicitor General, she urged the Supreme Court to consider the case. I'm sure she will consider the facts anew when she gets a crack at this in a different context, but is there any real doubt about how Justice Kagan is going to rule on this?

Continue reading "Seat Belt Lawsuit Likely to End in Draw" »

The South Carolina Supreme Court overturned a $31 million verdict in a Ford rollover case stemming from a catastrophic accident in 2001 that caused brain damage to a 12 year-old boy. This was a difficult case. A mother was driving with four children who were not wearing seat belts and the mother took her eyes off the road and swerved to get back on the road. The question was whether the design of the Ford Bronco was a substantial contributing cause to the child's injuries.

Obviously, a jury found that it was and sent a powerful message to Ford: $16 million in actual damages and $15 million in punitive damages.

The South Carolina Supreme Court overturned the verdict for a lot of reasons. I won't go into all of them but there are two reasons set forth for the court's reversal that I think are of particular interest.

First, the court found that it is improper for lawyers in closing arguments "to arouse passion or prejudice." The court cites these statements made during the plaintiff's lawyer's closing argument as improper:

1. "This is how Ford looks at this. That little bit of thirty people being killed every year didn't matter. Those thirty people, those thirty extra people getting killed in a year didn't matter to them because it was just a little bitty number."

2. "It does matter about those people getting killed. Those thirty people do count. Those thirty people--that's thirty more people that got killed that year. If you expect these vehicles to last about twenty years, that's six hundred more people getting killed using this vehicle as opposed to a Chevy S-10 Blazer. That's serious."

3. "And that doesn't count the paralyzed people, the quadriplegics, the people with serious injuries, the thousands of people that have been in these events because of this rollover propensity of this vehicle that they knew about, and they knew it since day one but they chose profit over safety every time because they looked at it as numbers. They didn't look at it as lives, as people."

4. "I submit to you that the evidence is that they did it because they thought it was a little, small number. . . . [T]hey did not look at it as thirty lives a year[], they didn't look at it as six hundred lives. That's how they should have looked at it, but that was not how they did it."

5. "They got together at the highest levels of Ford Motor Company and they made a judgment that rather than delaying and improving the Bronco II, they were going to sell the vehicle as it was and that they were going to risk people's lives and they were going to risk serious injuries like we have here today. They were going to risk people's brains."

6. "Jesse Branham is here today with a brain injury and six hundred other people, or however many it is, lost their lives, and numerous others have brain injuries or are paralyzed, quadriplegic, have extremely serious injuries. We believe that you should tell Ford Motor Company what you think about this kind of thing."

The court found these improper because they relied on evidence that was inadmissible, because it asked for damages for harm to others, and because it improperly inspired the jury to act on passion as opposed to reason. All of these arguments are flawed.

If the evidence is inadmissible, then that is the basis to overturn the verdict. There is no need to tie it to an improper closing. Presumably, this would be true in any case where evidence was inadmissible.

Additionally, the court believes these statements led to asking for damages for harm to others. But the attorney is asking for punitive damages. We don't have punitive damages in Maryland without proof of actual malice - which eliminates 99.999% of cases like this from being considered for punitive damages. But if you are asking for punitive damages, it seems to me that you have to give the context of why there was a risk of harm to more than just the plaintiff. (Plaintiff's lawyer also got into evidence the salaries of certain executives at Ford which does sound pretty incredible. But, again, our law firm has never handled a punitive damages case so I really can't speak to the standard for admissibility in these cases.)

Continue reading "$31 Million Rollover Verdict Overturned" »

Ask any accident lawyer about the use of statistics in valuing personal injury accident cases, and you will get an almost universal answer: they have little or no utility. Yet I've never looked away from average verdict data and I've never known a personal injury lawyer who did. Even if you conclude it is useless, you can't help but be curious.

Jury Verdict Research published a 10 year study on knee injuries. Our law firm has gotten pretty good results in knee injury cases. The study confirms this is for pretty good reason. The average knee injury verdict is $173,552. But with more serious knee injuries, that average jumps higher. The average cartilage and ligament damage jury verdict is $347,831. Conversely, a knee strain verdict averages $70,055.

The Maryland Daily Record published a three part series over the last month on mediation in Maryland personal injury cases, a piece I wrote with the Honorable Clifton J. Gordy . You can read the articles on-line but you have to be a subscriber to the Daily Record to read the entire article.

• Part I of Mediation in Personal Injury Cases
• Part II of Mediation in Personal Injury Cases
• Part III of Mediation in Personal Injury Cases