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Soldier exposed to harmful levels of noise
Litigation involving 3M Dual-Ended Combat Arms Earplugs (“3M Earplugs”) is advancing. Recently deposition testimony from 3M and Aearo employees was made public, and some of the answers are troubling. It brings me no joy to play the role of Chicken Little, but when companies are tempted by massive profits, too often those companies will cut corners on consumer safety. In this case, those consumers were millions of soldiers serving their country from 2003 to 2015.

First, in a recent deposition a 3M marketing manager confirmed that 3M was selling the dual-ended earplugs to the military for $7.63, even though it cost the company just $.85 to manufacture, a 900% markup. In an email the 3M employee remarked “LOL,” apparently about the hefty price increase for the 3M Earplugs.

Second, as I wrote about a year ago, one of the central allegations in the soldiers’ claims against 3M is that the company did not adequately test the 3M Earplugs before selling millions of them to the military. Nevertheless, in deposition testimony 3M officials stated that they did not believe it was necessary for soldiers to know that the earplugs were tested under conditions that were different from the conditions the soldiers would experience in the field. In fact, a former vice-president at Aearo Technologies testified that he thought it was OK to conceal information from the government about potential defects in the earplugs. He also confirmed that it was acceptable to sell a product and conceal information that the product could have a negative effect on soldiers.

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Image of the ECHELON FLEX ENDOPATH StaplerDuring the course of surgery, a doctor may need to find a way to connect sections of organs or close wounds. One way to do this is through the use of sutures, a special type of thread. Another way is with the use of surgical staples. The Ethicon surgical stapler is pictured at right.

Doctors commonly use staples over sutures during surgery because they offer several advantages, including:

  • Lower risk of infection
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Roundup Settlement News
All you have to do is Google a phrase like “Roundup Settlement” and you will get plenty to read. Some articles suggest a massive settlement agreement may be announced any day, while another post may trumpet: “Parties Still Far Apart on Roundup Settlement.” Who is right? The truth is, aside from a very few people, like chief mediator Kenneth Feinberg, no one can say for sure. But this much is true: multi-billion-dollar settlements in massive product liability cases take a long time to complete.

What We Know

So this is what we know as of today: Bayer AG and Monsanto, the two corporate defendants, have been in negotiations with the plaintiffs’ executive teams for several months to attempt a settlement that is reasonable and fair. Multiple media outlets, including The New York Times, are reporting that both sides are discussing a settlement that could involve tens of thousands of plaintiffs and may reach $10 billion dollars. A few media reports indicate the sides are getting closer to a settlement. And if so, that is good news. Still, even though the Wall Street Journal has recently reported that “draft settlement terms” have been reached between defendants and several larger plaintiffs’ law firms, the article also stated that “[a] formal deal hasn’t been signed and could yet fall apart.” So be very cautious about optimistic reports of settlements. Often the final, smaller details are the hardest to hammer out.

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The human hip is a marvel of bioengineering. It allows for a 360-degree range of motion due to its “ball-in-socket” design. But as we age, this hip joint can sometimes fail. When it does, it may require a total hip replacement.

Artificial Hip
Hip replacements often use a variety of exotic metal alloys or ceramics to recreate the ball-in-socket mechanism of the human hip. A total hip replacement will typically consist of four parts:

  • The socket (or acetabular component).
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ecigteen01-256x300These days the e-cigarette headlines mostly involve people who have suffered serious and even mysterious illnesses as a result of vaping devices. And maybe that is as it should be. But for me, one of the more devastating aspects of this e-cigarette nightmare is that today millions of school-age children have become addicted to nicotine, an addiction most of them would have never suffered if e-cigarettes were not marketed to children.

Childhood Nicotine Addiction is No Accident

JUUL Labs, Inc. targeted children in its marketing campaigns. The company spent millions promoting kid-friendly fruit-flavored vape pods. JUUL paid for and developed social media campaigns on Instagram, YouTube, Twitter, and other platforms. Although the main JUUL Instagram account is now inactive, many other JUUL or vape-related sites feature young people exhaling clouds of the white vapor while sitting on a beach, on the bleachers of a school football field, or driving around town. Congress developed evidence last year that JUUL created an “influencer program” with more than 25,000 social media personalities paid to market the JUUL device to teens. And it worked. As the graph at right shows, seven in ten teens were exposed in some form to e-cigarette advertising.

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Zantac and cancer-causing NDMA
Many of us suffer from heartburn, and one of the most popular ways to treat it is by taking Zantac. Until recently, Zantac was considered a very safe medication and was available without a prescription.

Given how well it worked, along with its affordable price and the perception of safety, hundreds of thousands of people, if not millions, took Zantac. In the fall of last year, the US Food and Drug Administration (FDA) reported that this popular drug might contain N-Nitrosodimethylamine (NDMA), a likely cancer-causing substance.

The past few months have resulted in mass voluntary recalls and a rush of FDA updates and reports about the possible dangers of taking Zantac and what it means for consumers. This blog post will attempt to summarize what’s going on and briefly discuss what happens next.

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Here is a strange cause and effect: if you don’t keep your weight at healthy levels, you may unwittingly become a victim to a negligent manufacturer selling a defective medical device. Which ultimately means your weight gain may one day lead you to me and to becoming a plaintiff in defective product litigation.

It Works This Way:

weight gainLet’s say your job is intense and over the years you begin to neglect your physical fitness. As you get a little older, in this sedentary state, you begin to gain weight. Gaining weight makes you less willing or able to exercise and you gain even more weight. Soon you start to feel aches in your hip or maybe your knees. This pain, over time, gets worse. Finally you consult an orthopedic surgeon, who recommends a total hip or knee replacement. Because you are a trusting soul, and because the hip pain is getting worse, you schedule hip replacement surgery. At this surgery your doctor implants the latest metal-on-metal (MoM) artificial hip components. A year or two later a new kind of hip pain develops, and this hip pain gets severe quickly. Your surgeon does blood work and tells you that your metal levels have spiked in your body and–of yeah, one other thing–you also have a “recalled” artificial hip implanted and that it needs to come out. So you are now forced to undergo revision surgery, and you eventually find your way to me to file a lawsuit over the injuries you sustained from this defective medical device.

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Orthopedic surgeon discussing revision surgery for recalled artificial hip
I get this question fairly often, and it’s a good one. It usually goes something like this: a person had a total hip replacement several years ago. A few years pass. Then out of the blue the individual receives a letter from the artificial hip manufacturer or from the implanting surgeon explaining that a recall has been issued for the artificial hip components implanted. (And these are the lucky patients; many people who receive an artificial hip that was later recalled never get notification from their doctor, the manufacturer, or anyone. They don’t discover they have a defective artificial hip until the pain, metallosis, or other injury develops.) If I were in this position, and I received a recalled artificial hip, I would want to know: Should I have the recalled hip removed? And should I have the hip removed immediately?

As with most things in life, the answer is not simple.

I have been a product liability lawyer for many years now, and in that time I have spoken with hundreds of people suffering from defective products. I have heard dozens of variations on a similar narrative. While this is neither medical nor legal advice, here are my suggestions:

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Smith & Nephew Birmingham hip replacement
Judge Catherine Blake, who is overseeing the Smith & Nephew Birmingham hip multi-district litigation in Baltimore, Maryland, recently issued an order setting out the bellwether trial schedule for the Birmingham Hip Resurfacing (BHR) cases.

Just to recap: there are two tracks of cases in the Smith & Nephew Birmingham hip litigation: BHR and THA. BHR refers to cases involving injured people who received Smith & Nephew Birmingham hip components as part of a resurfacing procedure. The BHR resurfacing system is a metal-on-metal (MoM) artificial hip, but in resurfacing procedures the  hip “ball” bone is resurfaced with a metal covering and a metal acetabular shell is implanted into the hip socket, thus creating a MoM articulation. Smith & Nephew used cobalt and chromium to construct both of these resurfacing components. As with all metal-on-metal artificial hips, the Smith & Nephew BHR has been shown to wear down and leach metals into the blood and tissue of the patient, a condition called metallosis.

The second track of cases involves total hip arthroplasties (THA) using Smith & Nephew Birmingham components. These total hip replacements are constructed with Smith & Nephew BHR components and non-BHR components, but instead of resurfacing the “ball-bone” with a metal covering the bone is removed and replaced with a metal ball component (a femoral head).

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I get these calls fairly often. The caller will explain that her lawyer just called out of the blue with an offer to settle an artificial hip or prescription drug case. The person believes the offer is too low. Well, is it? That’s a complex question, and it may be, but there are distinct reasons why the person believes the offer is too low. Let’s take a look at what may be happening:

What We Have Here is a Failure to Communicate

Lawyer explaining settlement terms to client
Often, the problem starts with the lawyer’s failure to communicate. People will tell me that they never hear from their attorney, and then suddenly, after many months or even years have passed, the lawyer will call and quickly explain the terms of a settlement offer then hurry off the phone. This is a mistake. The lawyer should take as long as necessary to fully explain why the settlement number is what it is. In fact, it is important for the lawyer to keep the client updated on developments throughout the litigation. For example, if another plaintiff in the larger litigation loses an important bellwether case, the lawyer should call and report the loss and what it may mean for the litigation and how it might impact settlement (obviously, it’s not good for all plaintiffs if a bellwether case is lost). If the client understands generally how the multi-district litigation is progressing, the client will be more prepared when a settlement offer finally arrives.

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