North Carolina Product Liability Lawyer Blog

Depuy ASR Hip: “Part B” Payments for Lost Earnings, Young Age, Etc.

Published on: February 23, 2016 | By Clay Hodges

In previous articles we looked at the Depuy ASR Settlement Agreement compensation framework. We examined the Part A base award here, and looked at the Part B “Extraordinary Injury Fund” (“EIF”) here. Just to recap, if you received a Depuy ASR hip in a hip replacement surgery, and it later “failed,” causing you to need revision surgery, you likely qualified for participation in the Depuy ASR settlement program.

The Part A award was one monetary award based on having to undergo hip revision surgery. The default Part A amount was $250,000.00, and this figure could be reduced by certain factors, such as smoking, obesity, advanced age, and length of time between original surgery and revision.

The Part B awards were built around “extraordinary injury,” and included compensation to people suffering from less common bad results, such as heart attack, stroke, foot drop, pulmonary embolism, deep vein thrombosis, dislocation, or infection.

In this post I want to drill down a bit on one of the vague areas of potential compensation in the Part B “matrix.” The Depuy Settlement Agreement designates an area for compensation for miscellaneous injury, which is referred to as Matrix Level VII (Discretionary). Let’s look at a few examples:

Transvaginal Mesh Case Yields $13,500,000.00 Jury Verdict

Published on: February 19, 2016 | By Clay Hodges

Carlino et al. v. Ethicon, Inc., et al. (Pa. Comm. Pls. Ct., Philadelphia County)

Product: Gynemesh TVT

Jury Award: $13,500,000.00 ($3,250,000.00 in compensatory damages; $250,000.00 to husband for loss of consortium; $10,000,000.00 in punitive damages)

Date of Jury Verdict: February 10, 2016

This case was brought by Sharon Carlino and her husband, Charles Carlino. The couple sued Ethicon, Inc. and parent company Johnson & Johnson on several claims, the main one being that Ethicon failed to warn Ms. Carlino and her doctors of the transvaginal mesh product’s risks and potential dangers.

Corporations Want You to Believe Lawsuits Are Frivolous

Published on: February 17, 2016 | By Clay Hodges

Abraham Lincoln had this to say about frivolous lawsuits: “Never stir up litigation. A worse man can scarcely be found than one who does this.” I agree.

I agree with Lincoln that we should never “stir up” litigation, for many reasons, the main one being that “creating” litigation is simply the wrong thing to do, it is harmful to the client, and it creates ill-will and distrust in the world and within the legal profession. But I also agree with Lincoln for completely selfish reasons: it does not lead to good results and it can easily destroy a person’s law practice. Reports of the filing of frivolous lawsuits are greatly exaggerated.

Five Important Ways You Will Participate In Your Product Liability Lawsuit

Published on: February 10, 2016 | By Clay Hodges

I have never met a client who “likes” lawsuits. Frankly they stink. Lawsuits are difficult, invasive, frustrating, potentially embarrassing exercises. And litigation is slow—a lawsuit against a medical device maker can take a year or two or longer to resolve, and if the case goes to trial, it can take several years to reach the jury’s verdict. The most important thing you will do in any case is select an attorney. I write about choosing and working with an attorney here and here and here. Let me remind you that you do not want to represent yourself in a product liability case. In some limited areas of law representing yourself may make sense, but you do not want to start a legal battle alone against a large corporation in a product liability case. So choose a good lawyer first.

Once a lawsuit is filed in your product liability case, you will have to participate actively. You will be involved in dozens of discussions, decisions, and tasks over the life of a lawsuit, and there are five big ways you will contribute to winning your case.

Five Things You Should Do If You Were Injured by Transvaginal Mesh

Published on: February 5, 2016 | By Clay Hodges

For thousands of women, transvaginal mesh has caused more problems than it has solved. Women with TVM have reported infections, urinary problems, pain during sexual intercourse, scarring, bladder perforation, recurrence of pelvic organ prolapse or incontinence, and other problems. If you have a transvaginal mesh implant and now suffer unusual pain or other symptoms, you need to take action quickly.

Depuy Pinnacle Hip Cases Currently Being Tried to Jury in Texas

Published on: February 2, 2016 | By Clay Hodges

There is a very important Depuy Pinnacle hip case being tried in Dallas, Texas as I write this.

The federal court system has consolidated many of the Depuy Pinnacle lawsuits into one multidistrict litigation in the North District of Texas (3:11-md-02244) presided over by federal judge Ed Kinkeade.

Bellwether Cases

Back in August, Judge Kinkeade selected certain cases as “bellwether selections” and ordered the parties to organize those cases for jury trials. Bellwether cases are representative cases which have broad characteristics in common with many of the remaining cases.

So Judge Kinkeade ordered that five separate cases would be consolidated into one (very large) jury trial, to start January 8. Those five plaintiffs are:

Aoki
Christopher
Greer
Klusmann
Peterson

One jury will hear all the evidence in these cases, but the judge will allow the jury to consider liability in each case, and to award separate damages in each case. Based on court filings, all five plaintiffs are from Texas, and each case has many similarities, thus making them amenable to trying together. In the language of the law, these five cases have “common issues of law and fact.” Opening arguments began January 11. The case is supposed to last three months.

Failed Artificial Hips: What Cases Are Still Active in 2016?

Published on: January 27, 2016 | By Clay Hodges

Artificial hips have been failing for years now. The effort in the last two decades to build and market a metal-on-metal hip that might last the patient’s lifetime has not been a success. The manufacturers were too quick to move the new metal hips to market, and using the flawed 510(k) fast-track process, they did not test the devices sufficiently to understand the risks. As a result, thousands of people suffered through hip replacement surgery failure and had to undergo revision surgery, just months or a few years after the original surgery. Because of these hip failures, thousands of lawsuits have been filed. The litigation continues for many people, and will continue for years. Still, because most of the failed medical hip products were recalled or taken off the market years ago, the litigation is plainly winding down with several of these artificial hip devices. So what’s still going on? And what does this mean for you?

Transvaginal Mesh Reclassified by FDA as Highest Risk Device

Published on: January 20, 2016 | By Clay Hodges

Mark this down in the “It’s About Time” column.

On January 4, 2016, the Food and Drug Administration (FDA) finally made the move to reclassify transvaginal mesh medical products from Class II to Class III.

Surgical mesh is a medical product that has been used for more than sixty years and is intended to provide “additional support when repairing weakened or damaged tissue.” FDA News Release. It is typically a plastic lattice-type mesh that is surgically implanted around weakened, loose human tissue (such as a vaginal wall). While surgical mesh can be used to treat different kinds of problems, such as hernia, the mesh that has caused much of the current suffering and most of the lawsuits involves transvaginal mesh (TVM). Pelvic organ prolapse (POP), where organs fall from their normal position and press against the vaginal walls, is one of the conditions treated by TVM.

Recent Transvaginal Mesh Trials: Two Losses, One Win for Injured Women (Part 4)

Published on: January 15, 2016 | By Clay Hodges

We’ve been looking at recent trial results in transvaginal mesh cases. In this (fourth) post we review two verdicts from October 2015, where juries concluded that the mesh manufacturers were not negligent. Thus, these injured women received no money for the failure of the transvaginal mesh. In a third case, decided on December 21, 2015, the jury awarded $12,500,000.00 to an injured woman. I will take a look at all three cases:

Cavness v. Kowalczyk et al. (Texas District Court, Dallas)

Product: Gynecare Prosima Pelvic Floor Repair System

Key Product Defendants: Ethicon, Inc. and Johnson & Johnson.

Jury Award: zero.

Date of Jury Verdict: October 5, 2015

Key Takeaway: A big win for Ethicon and Johnson & Johnson, defendants in the case.

Transvaginal Mesh: One Huge Verdict and One Key Court Ruling from 2015 (Part 3)

Published on: December 20, 2015 | By Clay Hodges

In this post, we continue our review of transvaginal mesh cases. We look at one (remarkable) jury verdict and one partial summary judgment decision in favor of the defendant from 2015. Many other cases are moving to trial. Going forward, I will keep you updated on jury verdicts and other key court decisions as they happen.

Barba v. Boston Scientific Corp. (Delaware Superior Court)

Products: Pinnacle Pelvic Floor Repair Kit Transvaginal Mesh and Advantage Fit Mid-Urethral Sling System

Jury Award: $100,000,000.00.

Date of Jury Verdict: May 28, 2015

Key Takeaway: A huge verdict for the plaintiff, Deborah Barba. This case was remarkable for the very high money award: one hundred million dollars, to a single woman.

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★★★★★

I was involved in a case for the faulty hip replacements. Clay Hodges represented me. I can't say enough about how much he has helped me. Clay was able to win multiple settlements on my behalf with most of them being the maximum amount able to be awarded. Matt J.

Clay, thank you sir for making a disheartening experience at least palatable, you and your staff were honest, caring and understanding through the entire process of my wife’s hip replacements, while monetary settlements never make the pain and suffering end, it sometimes is the only way people can fight back to right a wrong. J. V.

We are absolutely pleased with how Clay Hodges handled my husband’s hip replacement claim. He always kept us informed of the progress. And, his work resulted in a settlement which we are extremely pleased. Thank you, Clay! Carol L. & Norm L.