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Opioids: Are Individual Lawsuits Imminent?
Have you been directly affected by the opioid epidemic in America? Millions of people have become addicted to these powerful drugs—and for many, that addiction started with a legally prescribed medication to treat legitimate pain. One report estimated that more than 59,000 people died from drug overdoses in 2016—and most of those were caused by opioids. The President has even declared opioid abuse a national public health emergency.

I’ve written before in this space about the opioid epidemic and the massive opioid litigation gearing up across America as well as the establishment of centralized multidistrict litigation. So far, these cases primarily involve state and local governments suing opioid manufacturers and distributors for their roles in the opioid crisis.

No doubt governments have suffered financial losses from the skyrocketing number of overdoses requiring emergency treatment. In North Carolina alone, the cost of opioid-related accidental overdose deaths was estimated at $1.3 billion in 2015.

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Xarelto Trial Verdict
Today, a jury in Philadelphia awarded approximately 28 million dollars to a woman who suffered serious gastrointestional bleeding after taking the blood-thinning drug Xarelto. It was a huge win for the plaintiff, Lynn Hartman. Ms. Hartman took Xarelto for over a year to treat atrial fibrillation. She suffered internal bleeding and was eventually hospitalized. She needed four blood transfusions. According to court documents, the internal bleeding eventually stopped, and Ms. Hartman was taken off the medication. After she stopped taking Xarelto and switched to another blood-thinner, she had no further internal bleeding.

Ms. Hartman sued Bayer Healthcare Pharmaceuticals, Janssen Pharmceuticals, and parent company Johnson & Johnson. Her primary claim was that the defendants failed to provide adequate warning of the bleeding risks associated with taking Xarelto.

One important witness for the plaintiff at trial was David Kessler, the former Commissioner of the Food and Drug Administration. Kessler testified that he believed the warning label on Xarelto was inadequate and lacked important information regarding the specific risks of internal bleeding.

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For many years my clients with failing artificial hips have asked me about the health effects of high cobalt and chromium levels in the body. These questions usually arise after clients get blood work done and the test reveals abnormally high metal levels. If you are reading this article, you probably already know that cobalt and chromium are two metals used in the construction of most metal-on-metal (MoM) artificial hip systems. In fact, cobalt and chromium are used to make artificial hips that are not metal-on-metal but instead use polyethylene liners, or ceramic heads, or other non-metal components. When metal components grind together, as they naturally do when a MoM artificial hip is implanted in a person, very small metal particles can be released into the tissue and the bloodstream. I wrote about the health effects of metallosis on the body over a year ago. You can check out that article here.

Cobalt poisoning from artificial hip implants
Dr. Steven Tower, an orthopedic surgeon in Alaska, recently gave a fascinating (and alarming) talk about the many neurological problems he has observed in hip patients with elevated cobalt levels in the body. For years the focus following hip replacement surgeries has been on the physical condition of the hip itself. Dr. Tower has concluded that this approach is wrong, or at least incomplete, and he has seen that often the first signs of trouble with hip replacement patients are neurological symptoms. He has even given it a name: Arthroplasty Cobalt Encephalopathy, or ACE.

What is Arthroplasty Cobalt Encephalopathy (ACE)?

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Calculating DePuy Pinnacle Jury AwardsIn the last three DePuy Pinnacle artificial hip bellwether trials, three juries awarded the following amounts of money: $502,000,000.00, $1,041,311,648.17, and $247,000,000.00. That’s a total of $1.79 billion dollars. The juries awarded plaintiffs compensatory damages (or actual damages) and punitive damages (to “punish” the defendant companies). Remember that these juries settled on these huge amounts of money based on their findings in three separate trials that DePuy and Johnson & Johnson were liable for design and manufacturing defects, that the defendants failed to warn plaintiffs about the risks of the defective artificial hip, and that defendants acted recklessly, intentionally, and even maliciously in marketing and selling the flawed DePuy Pinnacle hip. These last findings permitted the juries to award punitive damages.

In the bellwether trial in March 2016, a jury awarded more than $500,000,000.00 to five plaintiffs. On December 1, 2016 a jury awarded more than one billion dollars to six plaintiffs and four spouses. And finally, just two weeks ago, a jury awarded six plaintiffs (and four spouses) $247,000,000.00 in compensatory and punitive damages. Compared to the total awards, the amounts awarded to the spouses of the hip victims were modest, and appear to have totaled around $6,700,000.00.

Let’s do a little math:

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Sadly, I’ve written about allegations of witness-tampering before. It is an awful and unethical thing, and it undermines the ability of a litigant to get a fair trial. Beyond that, it calls into question the legitimacy of our entire legal system.

Testifying under oath in Xarelto trialWitness-tampering is an attempt by one side in a trial to influence or change the testimony of an opponent’s witness. Most of us have seen dramatizations of witness-tampering in movies and on television. Maybe the most famous cinematic depiction of witness-tampering was in Godfather, Part II, when Frank Pentangeli changed his sworn testimony in a Senate Hearing investigating Godfather Michael Corleone’s corruption and murder. Prior to Pentangeli’s testimony, Corleone flies in Pentangeli’s beloved brother from Sicily, an unmistakable message to Pentangeli that Corleone can reach anyone in Pentangeli’s family, and that no one is safe. Once the hearing begins, Frank Pentangeli changes his testimony, and he testifies that he knows nothing about the mafia or Michael Corleone, and that he gave a prior sworn statement under extreme pressure from investigators. It is a dramatic moment in the film, and the witness-tampering allows Michael Corleone to avoid findings of corruption and murder and a likely criminal conviction. You can check out that famous “witness-tampering” scene here.

In the world of product liability cases, allegations of witness-tampering are much less dramatic, but witness-tampering any case can have devastating effects. If a key witness changes his or her testimony, the case can be lost for the litigant who relied on the original evidence.

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On November 16, 2017, yet another Texas jury Huge Verdict in Fourth DePuy Pinnacle Trialdelivered a huge verdict to the victims of the DePuy Pinnacle artificial hip. In this fourth bellwether trial, the jury awarded $247,000,000.00 to six plaintiffs and their spouses. According to news reports, after a two-month, hard-fought trial, the jury found that DePuy Orthopaedics and parent company Johnson & Johnson were liable to plaintiffs for the Pinnacle’s design and manufacturing defects. But the jury went further, concluding that the actions of the companies were fraudulent and deceptive, and that they had acted recklessly and maliciously in manufacturing, selling, and promoting the flawed products.

These last terms have special meaning in law: findings of fraud, deception, recklessness, and malice indicate that the companies went beyond mere negligence, that the defendants misbehaved intentionally or with a reckless disregard to the fact that their actions would harm innocent people. Because of these special findings, the plaintiffs were entitled to receive “punitive damages” from DePuy and J&J, which are money damages intended to punish defendants for especially bad behavior.

The jury awarded $90 million dollars in punitive damages to be paid by J&J, and $78 million in punitive damages to be paid by DePuy. That’s $168 million in total punitive damages. It is a lot of money.

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A former client wrote a review of my work helping him through his metal-on-metal artificial hip case. I am very grateful for the review and would like to share it:

Former Client Writes Review of Attorney Clay HodgesI had one shot to even the score. I trusted Clay Hodges with my life. Mr. Hodges and his paralegal were spot-on with every aspect of my case. Throughout the process, beginning to end, I felt confident I had made the right choice. I needed a team that would press my rights swiftly and with results. I feel that Mr. Hodges’s experience, persistence and character led to these maximum results. Trustworthiness, operational expertise and great results . . . I couldn’t have asked for a better outcome.

R.N.

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Fourth Depuy Pinnacle Hip Bellwether Trial in Dallas Texas
By all accounts, each of the three bellwether trials in the DePuy Pinnacle artificial hip MDL has been contentious. In the fourth bellwether trial, which should wrap up this week, the litigants have been in a fierce battle again. The most recent skirmish has centered on allegations by plaintiffs suggesting that lawyers for DePuy Orthopaedics may have been trying to influence the testimony of a witness for the plaintiffs.

I want to share with you the affidavit submitted by Dr. David Shein, a surgeon who treated three of the six plaintiffs involved in the current trial. Dr. Shein was once expected to be called as a fact witness in the case by the plaintiffs.

Affidavit of David Shein, M.D.

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Xarelto case underway in PhiladelphiaThe first Xarelto trial is underway in the Philadelphia Court of Common Pleas. The cases in Philadelphia state court are separate from the federal court Xarelto multidistrict litigation situated in Louisiana. I have written about Xarelto often on this website, and you can read more about the medication and the lawsuits that followed here. The cases in the Court of Common Pleas are very similar to the MDL cases, and most of the cases involved allegations of uncontrollable internal bleeding. The Philadelphia state court mass tort program has been taking Xarelto cases since 2014, and currently there are more than 1,500 cases filed there. More cases are being filed each week, in Pennsylvania and in the Louisiana MDL.

The first of these “Philadelphia cases” went to trial this week. For the plaintiffs in both state and federal court, a win would be most welcome, as plaintiffs in the first three MDL bellwether cases lost.

First Philadelphia Xarelto Trial Begins

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Diabetes Drug InvokanaDiabetes is a serious condition that affects the way the body metabolizes sugar. Over 29 million Americans currently suffer from the disease. Of the newly diagnosed cases of diabetes in adults, around 95% are for Type 2 diabetes. Type 2 diabetes occurs when the body produces enough insulin but cannot use insulin properly. Type 2 diabetes results in high blood sugar levels which can cause long-term health problems. So what does all this mean? From the perspective of pharmaceutical companies, it means there is a massive market for Type 2 diabetes drugs. Enter the latest diabetes “wonder drug,” Invokana.   Continue reading →