Articles Tagged with Trial

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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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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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Artificial Knee Components

October 2016 was set to be an important month for thousands of people injured by the Zimmer NexGen artificial knee. The second “bellwether” trial was scheduled. Bellwether trials involve representative cases that are used to educate the defendants and the plaintiffs on what certain juries thinks may be proper results for these kinds of cases. After several bellwether trials, both sides often come together and work out a global settlement based in large part on results from these bellwether trials.

Unfortunately for the plaintiffs in the Zimmer NexGen MDL, the latest bellwether case never reached the jury. On October 21, 2016, Judge Rebecca Pallmeyer, the federal judge overseeing the Zimmer NexGen MDL, granted summary judgment for Zimmer and the other defendants. Which means the case is over.

Summary Judgment

Summary judgment is a final judgment entered by the judge prior to trial. Essentially, the judge determines that no material factual issues remain in dispute and that one side is entitled to judgment “as a matter of law.” For the most part, summary judgment is a defensive tool, and defense lawyers will file a motion for summary judgment and will argue to the court that even taking the facts in a light most favorable to the plaintiff, the defendant is still entitled to judgment without the need for a jury trial.

This is exactly what happened last week on the eve of the second bellwether trial in the Zimmer NexGen MDL. In a 43-page Order, Judge Pallmeyer held that the plaintiffs failed to present adequate evidence that the design of the Zimmer NexGen knee caused the plaintiff’s alleged injury, and that the plaintiffs failed to show that the warnings accompanying the medical device were inadequate.

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On July 1, 2016 a jury in Philadelphia sent a very loud and angry message to Johnson & Johnson. After a lengthy trial, the jury awarded a young boy who grew breasts after taking the drug Risperdal a staggering $70,000,000.00. This verdict is far and away the largest money judgment awarded (yet) to a victim of the drug Risperdal. As one of the attorneys representing the disfigured child stated, “this verdict is a game-changer.” I think he is right.

But let’s back up.

What is Risperdal?