North Carolina Product Liability Lawyer Blog

Loss of Consortium in Transvaginal Mesh, Artificial Hip, IVC Filter Cases

Published on: May 13, 2016 | By Clay Hodges

Most people have heard of the claim “loss of consortium.” It comes from the root word consort meaning to associate, to spend time, to hang out with. The definition of the legal claim goes like this: loss of consortium is a claim for (money) damages by the spouse or close family member of a person who has been injured or killed as a result of the negligence or wrongful act of another person. It is a derivative claim, which means it derives or flows from the primary injury to the spouse or family member. Essentially, it creates a separate plaintiff (usually a spouse) and “piggybacks” off the injury to the injured person. A loss of consortium claim cannot exist without the recognized injury to the spouse or family member.

The Lost Sex Claim

People sometimes think of loss of consortium as the “loss of sex” claim. And in fact, one important injury under loss of consortium is that the primary injury prevented a loving married couple from enjoying intimacy and sexual intercourse in the same manner they enjoyed before the accident. Let’s face it, when intimacy is lost or diminished based on the negligence of others, people should be compensated. It’s one big reason we have the derivative claim.

But loss of consortium extends beyond married sexual relations. Suppose a married couple were passionate about sailing and took sailing trips most weekends, but the failure of an artificial hip placed a married woman in a wheelchair and made it impossible for her to climb onto the sailboat. In most states a loss of consortium claim could be made that the loss of this treasured activity deeply damaged the quality of life of the husband. Similar claims can be made for couples who actively garden together, play tennis, travel, or even cook.

Transvaginal Mesh Lawsuits: $4.4 Million Jury Verdict, Appeal of $11.1 Million Award

Published on: May 6, 2016 | By Clay Hodges

(Part 6)

Let’s get back to a look at recent developments with transvaginal mesh lawsuits. In two big victories recently, a Georgia jury awarded $4.4 million to a woman injured by transvaginal mesh, and a New Jersey appeals court upheld an $11.11 million dollar jury verdict.

Transvaginal mesh (TVM) is a plastic mesh product that has been implanted in women for many years to support weakened vaginal walls. Many women suffer from pelvic organ prolapse or stress urinary incontinence, and makers of TVM have insisted that TVM could repair these medical problems. Unfortunately, not long after TVM was marketed and sold, women began complaining of serious health problems, including erosion of the vaginal wall, infections, painful sex, and bladder perforation. The lawsuits followed.

Now let’s take a look at a recent jury trial and an appeal decision of an earlier jury verdict.

Bard IVC Filter Statute of Limitations Court Order a Victory for Injured

Published on: May 3, 2016 | By Clay Hodges

I would chalk up this court decision as a victory for any injured person dealing with the C.R. Bard IVC filter. I would also chalk up the decision as yet another example of the complexities of handling statutes of limitations in defective product cases.

As always, let’s take a step back. I have written about C.R. Bard’s potentially dangerous IVC filters, which you can read about here and here. In 2015 a multidistrict litigation (MDL) site was selected for lawsuits arising from injuries relating to Bard’s G2 Series and Recovery IVC filters. The primary complaints have been that the Bard IVC filters moved out of position and/or broke apart. Lawsuits mounted, and the MDL was formed.

Lurking in virtually every personal injury case is a statute of limitations defense. I wrote about statutes of limitations here. To recap, a statute of limitations is a law which limits the time when an injured person may bring a lawsuit for money damages. You miss the deadline, you lose your right to bring a lawsuit forever.

But as I have discussed before, determining when the clock starts running on your injury case is far from easy.

Bard Lawyers Sought Rigid Framework For Statute of Limitations Analysis

In the Bard IVC filter MDL, C.R. Bard lawyers filed a motion seeking a bright-line test to identify the running of the statutes of limitation. The defense lawyers asked Judge David Campbell to adopt a strict procedure for this analysis similar to the procedure used in the Mirena IUD MDL. (Yes, there is an MDL for women injured by Mirena IUDs made by Bayer Pharmaceuticals.) The Mirena procedure was determined in the case titled Truitt v. Bayer.

Your Product Liability Case and the (Dreaded) Statute of Limitations

Published on: April 27, 2016 | By Clay Hodges

The statute of limitations can be the strongest defense a product manufacturer will bring to defend itself and avoid paying money in a product liability lawsuit. It can be deadly to your medical device or drug case. The problem is, determining the proper deadline to bring your lawsuit is rarely simple. It is critical that you find someone who can figure out when the clock started ticking on your product liability case.

Definition

Let’s start with a simple definition: a statute of limitations is a state law which limits the time period when you may bring a lawsuit for money damages for a personal injury. In each state you have a certain number of years from the injury, or the date of discovery of the injury, to file a lawsuit and recover money for your injuries.

If you miss this deadline, you lose your right to bring the lawsuit, forever. These statutes must be taken very seriously.

Rationale

The rationale makes sense: citizens and companies do not need to be vulnerable to being sued indefinitely for an act of negligence. If you were in my grocery store twelve years ago, slipped on a banana peel, broke your arm, got medical treatment, recovered, then waited over a decade and finally sued me and my grocery store for negligence, it could be a serious hardship on me and deeply unfair. I need reasonable assurance that I won’t be exposed to lawsuits forever. So states across the country have written statutes that limit the amount of time an injured person can bring a lawsuit. Essentially, state legislatures are telling injured persons: we respect your right to sue for money damages when you are the victim of some kind of negligence, but don’t sleep on your rights. If you are hurt because of someone else, get on with it and file a lawsuit. And if you wait too long, you lose your right to recover damages.

(I don’t really own a grocery store.)

Determining When Your “Lawsuit Clock” Starts Ticking

$8.9 Million Stripped by Judge From Plaintiff in Wright Conserve Hip Case

Published on: April 19, 2016 | By Clay Hodges

A lawsuit can be a minefield. For one, it can go on for years. And in that time opposing counsel can (and will) challenge a person’s lawsuit in large and small ways. By large I mean bringing “dispositive motions,” which are motions that “dispose” of a case, like a motion to dismiss and a motion for summary judgment. These motions are defensive attempts to kick a lawsuit out of court before it reaches a jury. By small I mean opposing counsel may refuse to produce certain documents or information in the “discovery” process, or may simply use motions or other tools to slow down and delay the plaintiff’s opportunity to have her case reach a jury.

But the fight is not over when the jury reaches a verdict in a product liability case. If a plaintiff wins her lawsuit, the defense will typically file “post-trial motions,” and after those motions are heard will likely appeal to a higher court. Merely getting a good jury verdict is by no means the end of the story.

Two weeks ago, a federal judge in Georgia stepped in after a jury verdict and stripped almost nine million dollars of punitive damages from the amount of money the jury awarded to the injured plaintiff.

But I need to back up.

In Re: Wright Medical Technology Inc. Conserve Hip Implant Products Liability Litigation (MDL No. 2329); Christiansen, No. 13-00297 (N.D. Ga.)

IVC Filter Injuries and Lawsuits: C.R. Bard’s “Recovery” and “G2” Filters

Published on: April 14, 2016 | By Clay Hodges

In this post we look at the history of C.R. Bard’s problematic IVC filters, which sadly have caused many injuries and several deaths. In May 2015 a multidistrict litigation site (MDL) was selected for claims across the country arising from injuries relating to C.R. Bard’s “G2 Series” and “Recovery” IVC filters. But before we get to the Bard MDL, however, we have to ask, “well, how did we get here?”

Bard Recovery IVC Filter

In 2002 C.R. Bard received approval from the FDA to market the Recovery IVC filter. The Recovery received approval for marketing under the dreaded 510(k) approval process, which I have written about often. Soon after the release of the Recovery filter, reports of injuries and deaths began to occur. The primary issues were that the Recovery filter moved (doctors call it “migration”) and broke apart much more often than other IVC filters on the market. After many of these alarming results, C.R. Bard arranged for a study to be performed on the Recovery filter, and this study, published in December 2004, concluded that the Recovery filter created a significantly higher risk of injury and death in patients compared to other IVC filters available to physicians and patients. The report qualified its findings by noting that given the “flaws in the data” (whatever that is) it cannot say conclusively that the Recovery filter presents an “excess risk”; the report nevertheless concluded that further investigation is “urgently warranted.”

Despite this dire warning, C.R. Bard continued to sell the Recovery filter. It finally discontinued the Recovery in 2005. But this action was too late: as many as 20,000 people still have the Recovery IVC filter implanted in their bodies to this day.

Bard G2 and G2 Express IVC Filters

In 2005 C. R. Bard introduced the G2 IVC filter. That same year C.R. Bard circulated an internal memo in December 2005 expressing concerns with the safety and functionality of the G2 filter. The Bard Memorandum noted that the G2, much like the Recovery filter, had problems with perforation, tilting, and moving. Despite this information, C.R. Bard kept selling the G2 filter. In 2008, as part of the G2 Series, Bard introduced the G2 Express, which has also been found to move, tilt, migrate, and break apart.

My Challenge to Medical Device and Drug Companies: Put Me Out of Business!

Published on: April 11, 2016 | By Clay Hodges

I don’t drink the Kool-Aid. I distrust simple answers, group-think, zealotry. I can’t stand when people make sweeping generalizations about the absolute evil of one side and the unconditional good of the other side. I don’t usually spend much time with plaintiffs’ attorneys who think every corporate decision is an act of violence and malfeasance. I am convinced there are two sides to every story (even if, often, one side of the story is weaker).

Medical Devices and Drugs Have Saved Many Lives

So it is with my law practice. I do not believe major companies are evil, that they are out to hurt people, that all the conspiracy theories are true. I am convinced the life-cycle of a medical device or drug begins with a beautiful idea: to develop a product that will save lives, that will make people more active, that will help people and not hurt them. In fact, virtually all medical devices or drugs are first developed by one or a few smart people attempting a solution to a pressing health problem.

And these medical devices and drugs have saved lives. And as a society we have to create an environment where doctors and scientists and corporations have the freedom and the opportunity to build new medical devices and new drugs to solve vexing health problems.

IVC Filter: The Problems It Solved and the Problems It Caused

Published on: April 6, 2016 | By Clay Hodges

I have to say, this one looks a little terrifying. Check out the photo to the right. This is an IVC filter. As with most things, when you first learn what the object is and what it is intended to be used for, you should think “Brilliant! What took so long to invent this thing?” The problem is, the IVC filter can move, turn, or break apart inside a blood vessel, causing all kinds of problems, including death of the patient. So let’s take a look at the product and the lawsuits that have resulted from the medical device.

What Is IVC?

IVC is the acronym for “inferior vena cava,” which is the primary vein running from your lower body to your heart and which carries deoxygenated blood. (And just for completeness, the superior vena cava is the large vein carrying deoxygenated blood from the upper body to the heart.) The vena cava veins move this deoxygenated blood into the right atrium of the heart, where it can be oxygenated and sent back out into the body. Obviously the IVC is a vitally important vein inside the body, and when problems occur they can become serious and even life-threatening.

What Costs Must Be Paid From My Product Liability Settlement?

Published on: March 30, 2016 | By Clay Hodges

I just spent a few days in Charleston, South Carolina. As always, I was mystified at all the different ways the hotel charged me for one room. There was of course the room charge (I was expecting that) but there were also daily parking fees, and taxes, taxes, taxes: state and city, a charge generically labeled “tax,” even a separate line-item for something called “tourism tax.” Beyond that, I tipped the bellman each time he touched my luggage, the barista for pouring my morning coffee, and the accommodating concierge who gave my family helpful maps of the city.

So let’s get it out of the way: everything in life costs money. A personal injury lawsuit is no different. It is expensive to bring a lawsuit, and it is extremely expensive to litigate a case through trial. Most times, an injury suit settles before trial, but even then there are costs that will have to be paid out of your negotiated settlement amount. Best to be educated about these costs up front and be prepared for them when your settlement approaches.

Jury Awards Astonishing $502 Million to Five Depuy Pinnacle Hip Victims

Published on: March 22, 2016 | By Clay Hodges

The ground moved on March 17, 2016. In a Dallas Texas courtroom a federal jury ordered Depuy Orthopaedics and Johnson & Johnson to pay five unfairly injured people $502 million dollars, including a stunning $360 million in punitive damages. The jury based this award on findings that Depuy hid critical defects in the design of the Depuy Pinnacle artificial hip system and hid these risks from doctors and patients.

I’ve written about this case before (In re: DePuy Orthopaedics Inc. Pinnacle Hip Implant Products Liability Litigation, 11-md-02244, U.S. District Court, Northern District of Texas (Dallas)). Five plaintiffs (Aoki, Christopher, Greer, Klusmann, Peterson) agreed to have their cases tried together. This was not a “class action” lawsuit. Rather, because the five individual cases had sufficient similarities, the judge, parties, and attorneys agreed to try all five cases in one jury trial. The single jury heard all the evidence in these cases, but Judge Ed Kinkeade instructed the jury to consider liability in each individual case, and to award separate damages for each plaintiff. Boy did they.

$360,000,000 in Punitive Damages

Five patients implanted with the Depuy Pinnacle artificial hip were awarded $502,000,000.00. The jury concluded that the Pinnacle hip sold by Depuy was defective and that Depuy knew about the flaws but did not warn patients and their doctors of the risks. The jury awarded $142,000,000.00 in actual damages and $360,000,000.00 in punitive damages.

Depuy is owned by parent company Johnson & Johnson, who will be on the hook for paying this judgment.