Articles Posted in Counseling

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Calls From Pro Se PlaintiffsNow and then I get calls from people who are representing themselves in product liability litigation. (An individual who represents himself in litigation is called a pro se litigant.) Usually these callers have worked their cases to a point and have questions. Sometimes the questions are rather modest: “I’ve been offered this amount of money to settle? Is that fair?” Other times the questions are ominous: “The judge now says I need an expert witness. What is an expert witness?” The first question is a mere judgment call. Is $150,000.00 enough to compensate you for the pain and suffering of a failed artificial hip? That is mostly for the injured person to decide (though lawyers have plenty of insight into the value of such a claim). The second question poses a serious threat to your case. If an expert witness is required to prove your case, and you don’t have an expert witness (or worse, you don’t even know what an expert witness is) your lawsuit will be lost. And quickly. (You can read about expert witnesses here.)

I get the impulse to “do it yourself.” Prior to attending law school, I sued my landlord in small claims court for the return of my security deposit (I won). I also tried to replace the steering box in my 1974 Ford Bronco (that didn’t turn out so well).

These phone calls from pro se litigants are often interesting. Plainly some people have developed a distrust of lawyers. For others, the thought of paying legal fees for a good attorney seems unpleasant and undesirable, even overwhelming. Some may be trying to litigate their claim “on the cheap.” But the real question is: does it work? Can a person represent himself or herself successfully in a product liability injury case?

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Smoking Can Harm Product Liability CaseFirst, let me make the case for smoking:

You enjoy it. It tastes good (I guess). It makes you alert (I hear); but also, oddly, it can calm you as well (from what I’ve read). You also look cool doing it (I confess; this last part is often true). And it’s legal. But perhaps the strongest argument I hear from smokers is this: no one is going to tell me I can’t smoke. This is a free country after all.

That’s about it, really. That’s all I’ve got. And I’m not here to nag you. By all means, smoke if you must. But let me present a different perspective: setting aside the many health problems smoking causes, it can also destroy or damage your product liability or personal injury case.

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Woman with Transvaginal MeshLet’s say you are a woman in your forties, and the mother of three children. After the birth of your third child you began to suffer from pelvic organ prolapse. This condition occurs when an organ like the bladder drops from its normal position and presses against the walls of the vagina. You go to your gynecologist, who recommends implantation of transvaginal mesh (TVM), the net-like plastic product that was marketed and sold as a solution to the problem of pelvic organ prolapse. You have the surgery. Soon you begin to suffer new and different pain and new health problems. You undergo three revision surgeries to remove all the pieces of the mesh. But after the revision surgeries you still suffer from pain and incontinence. You call an attorney, who files a lawsuit against the manufacturer of the TVM product. A few months into the litigation, your attorney explains that you now need an expert witness.

Your attorney is absolutely correct: you will need an expert witness in virtually all product liability cases. And a good one. And fast. If you do not have a qualified expert witness who can make the connection between your injuries and the failed product, then in the eyes of the court you do not have a case.

Your Most Important Witness

Expert witnesses are critical members of the team that is built to win your product liability case. In fact, other than your choice of attorney, the selection of the expert witness will be the most important decision you will make to help you win your case.

Expert Witness in Product Liability Case

Expert witnesses are common in all kinds of litigation. In a simple car crash case, a treating doctor is almost always called to testify about the nature of the plaintiff’s injuries after the crash. In some car crash cases, a second expert witness will be called to explain why a car’s brakes failed, or why the car’s airbag did not deploy. Usually this testimony ends by showing causation, “and if the brakes did not fail, the driver would not have crashed into that oak tree and broken his arm.”

In a product liability case, the expert must be able to show causation, to make the connection between the failure of the product and the injuries the person suffered. If the injured person cannot show this causation through the testimony of a qualified expert witness, she cannot win her case. In the example at the top of this post, the expert will have to be able to testify that the new pains and the new health problems were medically caused by the failure of the mesh and the need for multiple revision surgeries.

But I’m getting ahead of myself.

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I got a desperate phone call the other day. The call came from a man several states away. Let’s call him “Bill.” Bill had hip replacement surgery in 2007. The Depuy ASR artificial hip was implanted. He began to suffer pain eighteen months later, in early 2009, and blood tests showed his cobalt and chromium metal levels were rising at an alarming rate. He was suffering from metallosis. In 2011 Bill underwent Revision Surgery to remove the Depuy ASR hip. A year later he hired an attorney and filed his product liability lawsuit against Depuy Orthopaedics and Johnson & Johnson (the parent company of Depuy) in federal court in Bill’s home state. From there, the case was transferred to the Depuy ASR MDL in the Northern District of Ohio, before Judge David Katz. Judge Katz was the federal judge assigned to handle or manage the pretrial issues associated with the thousands of Depuy ASR cases that were transferred to his court after being filed across the country.

In November 2013, the first Settlement was reached between the Plaintiffs’ Committee and the Defense Team for Depuy and J&J. I have written about this Settlement and its terms here. So six years after the Original Surgery, and four years after the first onset of pain, and two years after Revision Surgery, Bill finally had the opportunity to accept the settlement offer or reject the offer and pursue a jury trial on his specific case. After much deliberation, Bill rejected the settlement offer.

Waiting for a Trial DateThree years have now passed. Bill’s case is not on a trial calendar. In fact, as far as I am aware no case has yet been tried of any person who rejected the settlement offers. To make matters worse, this summer Judge Katz, in charge of the MDL, passed away. A new judge had to be appointed to take his place overseeing the MDL.

Bill is at his wit’s end. He told me he merely wants his day in court. He is now nine years removed from the Original Surgery, seven years removed from the onset of symptoms, five years from Revision Surgery, and over four years from filing suit. And still no trial date in sight.

Bill is not alone. Hundreds of people in the MDL rejected the settlement. And those people are waiting too.

So how long does it take to resolve your artificial hip case?

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I see this on many lawyers’ websites or print advertisements: Free Consultation! It sounds great. Something is free! It’s a free con-sul-TA-tion, from an actual lawyer (although this last part is often not true; instead you likely get an “intake specialist,” a person gently trained to take down your story and type it up, usually for a paralegal to read). The “free consultation” is not all it’s cracked up to be.

The Free Consultation Has Very Limited Value

Free Attorney ConsultationLet’s start with the hourly-rate case. If the legal representation will ultimately be subject to an hourly fee payment arrangement, this “free consultation” will not likely save you much or any money. First, some lawyers allow thirty minutes “free” and then announce, “if we go further I’ll need to charge you my hourly rate.” But even if the attorney sits patiently and listens carefully to you explain your case for forty-five minutes or an hour, it is unlikely the attorney will be able to give you sound legal advice at that point. Quite simply, a legal dispute is complex (otherwise you could have handled it yourself). Even a basic breach of contract action will usually have two conflicting stories, and behind those stories will sit documents: agreements, letters, invoices, emails, texts, witness statements, all of which must be reviewed carefully and analyzed. So a one-hour consultation usually gives the attorney a surface understanding of your issues. Imagine if a doctor offered a “free consultation,” and after a twenty-minute visit announced, “I understand completely. We must perform surgery and remove one part of your lung.” It doesn’t work that way. Instead, the doctor listens to your story (and charges an office visit fee), then orders the appropriate tests (more fees), and finally makes a decision on proper treatment (again, more fees).

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1. Stop Taking Viagra.

ViagraThis is the safe and correct call. If you are diagnosed with melanoma, you need to focus on getting back to health. I suggest you stop taking the drug and schedule an immediate appointment with your dermatologist. In fact, I would say that even without a diagnosis of any skin cancer, you should ask your doctor (or a second doctor) if you should stop taking Viagra (or Cialis or Levitra). If a doctor you trust reviews your patient history and encourages you to remain on Viagra, fine.

2. Get Healthy

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My clients who have been injured by a failed medical device like an artificial hip or knee or a problem drug like Viagra suffer in many ways. There is the physical, emotional and psychological suffering. But there is another form of suffering that is often as traumatic: financial suffering. A failed medical device may cause a client to lose his or her job, and the lost income and extra medical expenses can be devastating. The good news is, often these clients receive a large sum of money from a settlement or jury verdict when a medical device or drug injures them.

Clients occasionally ask my advice on how best to handle the new money that has come into their lives. Frankly, this is a happy conversation. But it’s also extremely important to get the answer right. The worst thing clients can do is spend down the money quickly and have nothing left a few years down the road when they still need money.

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Cobalt and Chromium from metal-on-metal hip implants
Over the years I have worked with many people who had hip replacement surgery. Many of these clients discovered high metal levels in their bodies from metal-on-metal (MoM) hip components. Often the person would let me know that she had her metal levels checked and that the blood work came back with abnormally high readings of cobalt, chromium, or other metals. Still, the treating physician would occasionally dismiss the blood work results. At least one doctor told a patient, “no one knows the effects of higher metal levels on the body. We haven’t studied the impact of metallosis sufficiently. It is nothing to be worried about at this point.”

Sadly, this isn’t true. And it’s not the best medical advice. There have been several studies over the years that looked at metallosis in the body derived from metal-on-metal hip components. The first incident of metallosis from MoM hip implants was reported in 1971. Since then, doctors have been reporting the higher incidence of metallosis in patients who received MoM artificial hip implants. Several scholarly studies have been conducted, including a recent one whose results were published this month examining the impact of metallosis on the cells of patients.

What Is Metallosis?   

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Exercise and Medical Device Failures

I was reading an article about the latest study touting the benefits of exercise. It was stunning. The study involved analyzing the brains of two groups of mice: one group in a cage with an exercise wheel; the other in a cage without the wheel. Researchers watched the mice for four weeks. Predictably, the mice with the exercise wheel exercised; the mice without the wheel did not. After a month the scientists measured brain activity in both groups.

Turns out, running and other forms of exercise produce a protein in the brain called “brain-derived neurotropic factor” or BDNF (I feel smarter just writing that name). This stuff is very good for your brain. BDNF promotes the growth and vigor of neurons. BDNF has also been shown to strengthen the synapses that connect neurons, which allows the brain to function better. Low levels of BDNF has caused cognitive decline in people and animals. Exercise increases levels of BDNF in the brain.

Exercise Promotes BDNF and Ketones

In the study scientists discovered that in the brains of mice who exercised regularly, a molecule which blocked the growth of BDNF was less effective. As a result, much more BDNF was produced in the mice who exercised. Sadly but predictably, less BDNF was produced in the sedentary mice. Researchers also found that the exercising mice produced ketones which make their way to the brain and fight off the bad molecules and further promote the growth of BDNF. The guy who directed the study, NYU professor Moses Chao, said: “It’s incredible just how pervasive and complex the effects of exercise are on the brain.”

You can check out the new study here. It’s the latest in a long line of studies which prove time and again that exercise is vital to your health. Seriously, people have to exercise. Not exercising causes all kinds of physical and mental problems.

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IVC FilterApproximately 250,000 people have an IVC filter implanted each year. Each time it captures a blood clot and prevents it from moving into the heart or lungs, it is a great thing. Unfortunately, IVC filters often cause other health problems, sometimes as serious as the conditions they were designed to prevent. I wrote about the problems the IVC filter is causing many patients here.

Two corporations manufacture most of the IVC filters on the market: C.R. Bard, Inc. and Cook Medical, Inc. Lawsuits have been filed over Bard’s Recovery, G2, and G2 Express IVC filters. Lawsuits have also been filed over Cook’s Gunther Tulip and Celect IVC filters. Hundreds of people have been injured by these IVC filters. Try not to be one of them.

If you have an IVC filter implanted in your body, you must stay on high alert. I suggest taking the following actions if you have an IVC filter implant:

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