Articles Posted in Product Liability

There is a nationwide problem with metal on metal hip replacements, and patients may need to be tested for higher cobalt or chromium levels in their blood, the best indicator that their hip replacement is failing according to recent sources. Our Atlanta product liability lawyers will be interested to see how the cases across the country progress, particularly the case in Georgia’s Federal Northern District Court.

The pending Georgia case, Wright Medical Technology, Inc., Conserve Hip Implant Products Liability Litigation, is being handled by Judge William Duffy. It is in the discovery phase, and in September the judge ruled that plaintiffs have access to documents citing complications with a particular product, the Wright Profemur hip neck stem. Plaintiffs had argued that this neck stem was an integral part of the design flaw of the hip replacement. Judge Duffy’s discovery order stated, “The Court finds that information regarding the Profemur neck is relevant to the claims in this action and reasonably calculated to lead to the discovery of admissible evidence.” It also said that the plaintiffs should get information and documents about the neck’s design and function and any notice or investigation by the manufacturer of any defects, like corrosion, fretting, or failure.

There are also cases going through the federal courts of several other states, including Texas, Ohio, California, and New Jersey. The defendants are most of the major medical device manufacturers in the United States. Aside from Wright, they include DePuy, Stryker, Biomet, and Zimmer. It is not only an American problem either. Some European health agencies have done studies suggesting that some of these devices have a failure rate of almost 50 percent in some circumstances. The British Hip Society and British Orthopaedic Association issued a joint statement on the matter. And the US Food and Drug Administration has looked into the issue, as well.

Bed rails have been a problem for years, particularly for elderly patients, and our product liability lawyers and nursing home abuse lawyers are hopeful that officials will finally pay attention.

This week, the issue was highlighted in the New York Times in an article that details the bed rail problems that have occurred across the nation for almost two decades. Bed rails are placed on hospital beds and nursing homes beds to assist patients in getting up and also to prevent them from rolling out of bed while sleeping.

Between 2003 and 2012, at least 150 elderly Americans died as a result of becoming trapped in dangerous bed rails. additionally, about 4,000 elderly people are treated each year for bed rail-related injuries.These rails are especially a problem for people suffering from dementia or Alzheimer’s, as they often become confused and get caught between the mattress and the rail. These types of rails can provide necessary safety for elderly patients, as they are designed to do , but there are particular problems with older devices and also with mixing different products. If the mattress, rails, and frame all come from different manufacturers, you get dangerous gaps when things don’t fit smoothly together, exacerbating the problem.

When, as consumers, we count on products to work as they are supposed to, and they do not and cause harmful consequences, there is recourse in product liability law . Recent posts about this have involved medical products, but motor vehicles have the potential to be dangerous if there is something wrong, as well. A recent news story has highlighted the danger of a product for safety when driving that can be replaced with a fake, causing serious injuries or death in car accidents.

Airbags in cars have saved lives and lessened the severity of injuries in car accidents. However, the U.S. Department of Transportation’s National Highway Traffic Safety Administration (NHTSA) has issued a warning about counterfeit airbags. NHTSA says the counterfeit airbags are being used as replacements for the proper product. So far they are not aware of any injuries or deaths relating to these fakes, but it is still dangerous to have them out there with the potential for injury or death. These fake airbags look nearly identical to the real ones, including the insignia and branding of major automakers, but NHTSA tested one and it showed consistent malfunctioning ranging from non-deployment of the airbag to the expulsion of metal shrapnel during deployment. The fact that there have been no injuries, with these factors, may amount more to luck than to anything else.

NHTSA has identified certain makes and models of cars for which counterfeit airbags may be available (see a list at the bottom of this article). However, NHTSA says that only 0.1 percent of the cars in the U.S. may be affected. You may be affected if you have had the airbag replaced in your car within the last three years and it was not replaced by a new car dealership. If you have had your airbag replaced, or if you have bought a new airbag online, it is recommended that you contact the call center for your car’s manufacturer. You can get further information about call centers here.

Last week, this blog posted about the nationwide meningitis outbreak (see here), but the situation has grown worse since that post. More patients have died or become ill, and the defective products potentially causing meningitis infections have multiplied, according to news reports and a statement earlier this week by the Food and Drug Administration (FDA).

The initial outbreak seemed to be caused by a steroid injected for ailments like back pain. However, now the company with the tainted steroid, the New England Compounding Center in Framingham, Massachusetts, may have also distributed other tainted drugs for eye surgery and open-heart surgery. Officials are not certain of the link between the drugs and two new cases of infections, but they warn that other people might be at risk. The initial meningitis outbreak from the tainted steroid has now killed 15 people and infected around 200 people in 15 different states.

The FDA is recommending that doctors of all patients who may have been exposed to any of the potentially contaminated drugs – the steroid, heart surgery medicine, or medicine used during eye surgery – from the New England Compounding Center be notified of the risks and alerted to possible symptoms of infection. At the moment, this is a precaution, as it is not clear that the two other types of drugs caused the recent infections.

The Center for Disease Control and Prevention (CDC) warned in a press conference last week that the toll from the meningitis outbreak is rising. Thirty-five people in six states have become sick with a rare form of meningitis, and five have died as a result. The CDC expects more cases to appear, as well, so this outbreak is far from over. There is an ongoing investigation by the Food and Drug Administration (FDA), but officials suspect that the cause of the outbreak is a defective medical product ]- a preservative-free methylprednisolone acetate – a steroid used to treat back pain.

The suspected bad batches were manufactured by the New England Compounding Center in Massachusetts. Investigators examined an unopened vial of the steroid at the plant and found “foreign matter”, which turned out to be a type of fungus. The exact fungus species is still being determined. However, all 35 people sickened with this rare meningitis strain were given epidural steroid injections. As the fungus type remains unknown, the incubation period for the fungal infection is also yet unknown, which is why officials believe there may be more cases even though the suspected steroids are no longer used. So far, symptoms appear between one and four weeks after injection with the infected steroid, and the severity of symptoms has varied between patients. Symptoms include: headache, nausea, dizziness, fevers, and also possibly slurred speech, unsteady gait, urinary retention, weakness, and sensory deprivation. Doctors and officials emphasize that this type of meningitis is not contagious like other forms of meningitis caused by bacterial or viral infections.

The outbreak was discovered with a case in Tennessee on September 21, the state hit hardest by the outbreak. A week later, a case appeared outside Tennessee, indicating wider contamination and possibly a bigger outbreak of the disease. Benjamin Park, MD, of the CDC’s mycotic diseases division, said bad batches of the steroid were sent to 23 states, including Georgia. In response, on Friday Georgia health officials told reporters (http://www.ajc.com/news/news/georgia-health-officials-warn-of-potential-meningi/nSWGX/) that state workers were contacting potentially infected patients. Fortunately, so far there have been no cases of this meningitis reported in Georgia. Regardless, Dr. Patrick O’Neal, head of the state division of health protection, said, “We’re asking clinicians … to be extra vigilant.” In particular, vigilance is needed in the Macon area, where the Forsyth Street Ambulatory Surgery Center received some potentially contaminated shipments of this steroid, the only known shipment of this product to Georgia. Nevertheless, the health department has alerted 32,000 doctors and physician assistants across the state about this outbreak. Georgia health officials are also working with the CDC in their outbreak investigation.

mesh.jpegOur Atlanta product liability lawyers and medical malpractice lawyers have seen the news regarding a devastating product defect in medical devices used across the U.S. This device, called transvaginal mesh, or a bladder sling, is surgically implanted in patients to help with conditions such as incontinence. There have been numerous reports in several states of severe complications with these devices. Several manufacturers are currently involved in litigation in different states, but there has been multidistrict litigation consolidated against one such manufacturer, Mentor Worldwide, for their product, Ob Tape, in the US District Court for the Middle District of Georgia.

The first state lawsuit on product liability for this type of transvaginal mesh was in California against a different manufacturer, CR Bard, and the physician responsible for implanting it into patient, Christine Scott. Ms. Scott suffered permanent damage as a result of the product and the malpractice in implanting it. The California court awarded Ms. Scott and her husband a $5.5 million judgment, of which the jury determined the doctor 40 percent responsible. In that case, the doctor was almost as equally responsible as the manufacturer for Ms. Scott’s debilitating and painful injuries.

The federal case in Georgia is now moving forward, under Judge Clay D. Land at the US District Court. It is called In Re Mentor Corp. ObTape Transobturator Sling Products Liability Litigation (MDL 2004). This litigation is a growing collection of federal lawsuits against this product and the doctors who implanted it. The consolidated multidistrict litigation is an effort to move with greater efficiency given the large number of claims through the pre-trial phase of discovery and evidence collection. Once the pre-trial phase is over, each lawsuit will return to the original lawyer and the plaintiffs will be entitled to separate trials and/or monetary settlements.

pradaxa.jpgAs Atlanta product liability attorneys, we have seen the news about the nationwide mass tort claim against Pradaxa, a popular anticoagulant (blood-thinning) drug.

Pradaxa has been under attack by doctors groups and patient advocates since 3,781 adverse effects and 542 deaths associated with the drug were reported to the Food and Drug Administration (FDA) last year. These numbers dwarfed those of all other monitored drugs, and Pradaxa was the number one drug in terms of deaths reported to the FDA in 2011. As a result, the FDA announced in December 2011 that it was conducting a safety review of the drug. Prescribed to patients who suffered medical problems such as stroke and irregular heartbeat, the blood-thinner potentially causes severe internal bleeding. Despite this fact, millions of people are taking the drug twice daily.

Between the Pradaxa’s initial release in October 2010 and February 2012, sales topped $1 billion. It was introduced to replace a similar, older drug: Warfarin, the brand name of which is Coumadin. This was the leading blood thinner on the market, but patients required weekly exams and dietary restrictions. The intention was for Pradaxa to require fewer check ups and no dietary issues. People were optimistic that it would be a simpler drug replacing Warfarin, but Pradaxa’s nasty side effects continue haunting patients even after discontinuing use. A Cleveland Clinic study (January 2012) found that Pradaxa may increase heart attack risk and can cause irreversible bleeding complications.

Our Atlanta product liability attorneys know that companies often try to get away with having potentially dangerous products on the market, and when they are caught because someone gets seriously injured and sues, they want to “hide the ball” and get out of it.

That is why it is important to get legal help as soon as possible if you are hurt by a product.

Our Georgia products liability lawyers understand the many avenues of liability that are formed in the making of a product, because everyone in the chain of production of that product owes a duty of care to the end purchaser. There is also liability from a failure to warn of a dangerous aspect or potential harm that is not immediately apparent to the user of the product. atv (jared).jpg

One recent case of failure to warn in Georgia highlight some of these issues. According to news reports, a Chatham County woman, Amber Glisson, was “scalped” and her spine broken when she was in a 2009 Polaris Ranger RZR Side-by-Side ATV, which was bought brand-new in January 2011. She was riding in the ATV while wearing a full face helmet properly bucked and her seat belt fastened. Out of nowhere her hair became caught in an unprotected rotating drive shaft located underneath the passenger seat. The force of her hair getting caught “scalped” her, known medically as scalp avulsion, and fractured one or more discs of her spine, fractured ribs, and caused her serious bodily injury.

Ms. Glisson’s suit against Polaris, a Minnesota based company, was filed last week in a federal court in Savannah. It states that the ATV was being used properly and as intended by the manufacturer. It goes on to allege that, “No warning of the danger of the opening at the rear and rear sides of the seats of the passenger compartment which permitted the drive shaft to be exposed or the danger of this design existed on the RZR; neither was there any such warning in the Operator’s Manual for the vehicle.” Ms. Glisson claims that this failure to warn about unsafe and unprotected drive shafts makes Polaris at fault for her injuries.

Ms. Glisson suffered $400,000 worth of medical bills relating to her injuries from this incident. She also claims in the suit to have permanent scarring and disfigurement from the “scalping,” as well as other permanent injuries. She claims she will continue to suffer both mentally and physically for the rest of her life as a result, and has and will lose income from the experience. She is seeking compensatory and punitive damages for product liability, failure to warn, negligence, pain, suffering, and medical expenses.

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Manufacturers, and the stores that sell their goods, know that they have a legal duty not to offer the public unsafe products with no warning. When an unsafe products slips through, there are laws that hold these companies legally and financially accountable for the injuries that result. However, our Atlanta injury lawyers understand that these companies often try to escape accountability for the harms that their products cause. For example, according to recent news accounts, a company called Blitz USA Inc, the makers of defective plastic gasoline cans, and Wal-Mart Stores Inc (where the defective gasoline cans were sold) are trying to use Blitz’s bankruptcy filings to avoid further product liability lawsuits. fire.jpg

At one point Blitz held 70 percent of the US market of gas cans. The main reason that it was forced into bankruptcy was because the company was hemorrhaging money from 36 product liability lawsuits for harm caused by the cans. The defective gas cans have caused severe damage to people who unsuspectingly suffered severe burns, usually from explosions. The company, based out of Oklahoma, has an insurance policy, but there is a $1 million deductible before the insurance kicks in. The court papers filed by Blitz in November stated that they had already spent $30 million defending these products liability suits stemming from the defective gas cans, which was a “debilitating expense for the company.” The company also estimated it owed $3.5 million in lawyer’s fees over defending these lawsuits.

Blitz filed under Chapter 11 last November, which temporarily stopped all lawsuits against it. Recently, attorneys for Blitz asked the judge at the US Bankruptcy Court in Wilmington, Delaware, to halt all related lawsuits against Wal-Mart as the retailer selling the allegedly defective goods. Wal-Mart is Blitz’s most important customer, so the company wants to protect Wal-Mart and is worried about the increasing number of these products liability suits. The bankruptcy judge refused the request to halt the lawsuits against Wal-Mart.

Since the Delaware judge refused, Blitz has been trying to staunch the flood of lawsuits in individual districts. A US District Court judge in Illinois followed the Delaware judge’s lead and refused to stop related lawsuits against Wal-Mart, the biggest retailer in the world. Most recently in our own state of Georgia, on February 28, US District Court Judge Hugh Lawson in Valdosta repeated the refusal to stop lawsuits against Wal-Mart for the defective gas cans. Judge Lawson held that the law allows for halting Georgia product liability lawsuits against non-bankrupt third parties (in this case, Wal-Mart) only when there is a “close identity” between the bankrupt party and the third party or if allowing the lawsuits to go forward would irreparably harm the bankrupted party. Otherwise, Judge Lawson stated, the lawsuits should be stopped only in a case of clear hardship, and he determined that Blitz’s indemnification of Wal-Mart was insufficient to meet this legal standard.

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