Articles Posted in Defective Products

Johnson & Johnson’s own internal review of the hip implant known as the Articular Surface Replacement, or ASR, indicates that approximately 40% of the implants would fail within the first five years of implantation. Johnson & Johnson recalled the troubled hip implant in mid- 2010, yet did not release their internal analysis until after the recall.

The ASR recall is one of the largest medical device failures in years and raises questions as to what the managers of the DePuy Orthopedics Division of Johnson & Johnson knew about the hip implant’s problems before the implant was recalled. The ASR hip implant uses both a cup and ball component made of metal. Over time the grinding of the metal-on-metal device tends to produce metallic debris which damages the surrounding bone and tissue.

About 93,000 patients worldwide have received the Johnson & Johnson ASR. More than 30,000 of those patients are in the United States. Seven thousand ASR lawsuits have been consolidated in a federal court in Ohio and an additional 2,000 claims have been consolidated in a California state court action.

The TransCanada Pipeline Company cleared another of the many hurdles it has faced in connection with the construction of the Keystone XL pipeline. Michael Bishop, an East Texas landowner, previously contested TransCanada’s condemnation of his property. However, Bishop settled the condemnation issues because he could not afford the legal fees. Recently Bishop sought a restraining order against TransCanada based on his position that the tar sands that TransCanada plans to transport via the Keystone XL Pipeline does not constitute crude oil authorized to be transported by the pipeline agreement.

The tar sands start out as a near solid material and must be converted to a liquid form in order to be transport via a pipeline. Judge Jack Sinz issued an order allowing clearing for the pipeline to go forward. This is not the first nor will it be the last obstacle faced by TransCanada as it passes through East Texas.

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The Plaintiff, Morris, admittedly sustained an on-the-job injury which was covered by a workers’ compensation policy issued by the Defendant, Texas Mutual Insurance Company (TMIC). TMIC recognized the injury as compensable and began to pay benefits. When it was determined that Morris’ injuries were much more serious than they first appeared and that Morris has sustained multiple lumbar disc herniations TMIC quit paying benefits and disputed that the disc herniations were work related. TMIC’s refusal to pay for required medical treatment caused Morris damages. Morris challenged TMIC’s refusal to pay benefits and the Texas Department of Insurance Division of Workers’ Compensation confirmed that Morris’ disc injuries were work related and ordered TMIC to resume paying medical benefits.

Morris sued TMIC for violating Article 21.21 of the Texas Insurance Code, breaching the common law duty of good faith and fair dealing, and violating the Texas Deceptive Trade Practices Act(DTPA)for the damages caused by TMIC’s bad faith refusal to pay medical benefits. The jury awarded damages for mental anguish, damages for loss of credit, additional damages because TMIC acted knowingly, and attorneys’ fees. The Court of Appeals affirmed the verdict.

The Texas Supreme Court reversed the verdict in light of the Court’s opinion in Texas Mutual Insurance Co. v. Ruttiger. In Texas Mutual Insurance Co. v. Ruttiger the Court held that a worker’s compensation insurance company could not be sued for its’ bad faith denial of a legitimate claim and that the injured worker’s only remedy in such a situation is to challenge the carrier’s conduct by appealing the decision within the workers compensation system.

In U-Haul International v. Waldrip the Texas Supreme Court reversed a $45 million dollar jury verdict against U-Haul International. The verdict included $23 million in punitive damages. The Court of Appeals reversed the punitive damages award but affirmed the actual damages. The Supreme Court reversed the Court of Appeals, rendered a take-nothing verdict on the punitive damages, reversed the actual damages verdict and remanded the case for a new trial.

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The Texas Supreme Court recently ruled in Texas West Oaks Hospital v. Williams that the employment related claim of a hospital employee alleging negligence on the part of the hospital resulting in injuries to the employee constituted a “health care liability claim” under Chapter 74 of the Texas Civil Practices and Remedies Code. At the Trial Court level the Employer moved to dismiss the claim on the grounds that the employee had not filed an expert report as required by Chapter 74 in medical malpractice claims. It is uncontested that the Employer was not rendering health care to the Employee at the time of the alleged injuries and that the Employer was a nonsubscriber under the Texas Workers’ Compensation Act. The Trial Court denied the motion and the Employer filed an appeal. The Appellate Court affirmed. The Texas Supreme Court reversed, holding that the Employees’ claims were health care liability claims under the Act and required the submission of an expert report.

The only thing that this employment claim had in common with a health care liability claim is that the claim was asserted against a health care provider. Is any claim against a hospital a health care liability claim under the Act? If a hospital breaches a contract, fails to pay its’ taxes, or defaults on a loan and gets sued is the suit a health care liability claim governed by the Act simply because the defendant is a health care provider? At this point the Supreme Court has so broadly interpreted the Act that virtually any claim against a hospital, or any other health care provider, might fall under the Act, thereby creating a special class of defendants under Texas law.

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The autopsy plays a critical role in proving causation in vehicular crashworthiness cases which result in the death of a passenger. Death cases almost always involve substantial impacts that necessarily involve sudden acceleration/deceleration type forces. These forces are virtually unavoidable and are often fatal. Fatal deceleration injuries might include a transected aorta or a brain stem shear. Deceleration type injuries must be ruled out.

The goal of the crashworthiness case is to prove that the faulty design of the vehicle subjected the occupant in an otherwise survivable crash to lethal trauma. It is difficult to accomplish this goal without an autopsy or at the very least an extensive medical workup.

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The Food and Drug Administration(FDA) has determined that a group of anti-depressants used to treat depression, anxiety and mood disorders, known as Selective Serotonin Reuptake Inhibitors, or SSRIs, can cause serious birth defects or even death when taken by certain pregnant women. The group of anti-depressants that causes birth defects includes Celexa, Fluvoxamine, Lexapro, Paxil, Prozac, Symbyax and Zoloft.

The most common birth defect is Neonatal Persistent Pulmonary Hypertension. Studies have repeatedly shown that pregnant women who took these SSRIs after the 20th week of pregnancy were six times more likely to have a baby with Neonatal Persistent Pulmonary Hypertension.

Other less likely birth defects caused by SSRIs include atrial septal defects(ASD), ventricular sepatal defects(VSD), tetralogy of fallot, heart valve defects, hypoplastic left heart syndrome(HLHS), cardiomyopathy, and patent ductus arteriosus(PDA).

The Texas Supreme Court held in Carnation Co. V Wong, 516 S.W.2d 116 (Tex. 1974), that persons whose negligence did not cause the auto accident should not have their failure to wear an available seatbelt admitted against them to reduce their damages. This law was well established over a decade later when the Texas Legislature passed Texas Transportation Code section 545 requiring the use of seatbelts by certain occupants of motor vehicles. At the time of the passage of Section 545 legislators, fearing that insurance companies would use the failure of an injured motorist to wear a required seatbelt as an excuse not to pay legitimate claims, added language to the legislation prohibiting the admission of evidence regarding the non-use of a seatbelt in injury cases.

Fast forward almost 20 years to the 2003 legislative session. In 2003 the insurance lobby dominated (some say owned) the Texas Legislature. The Legislature passed House Bill 4 including a provision repealing the sections 545.412(d) and 545.413(g) which prohibited the admission of evidence of the use or non-use of a seat belt. The insurance lobby hoped to use the failure of an injured plaintiff to wear a seatbelt in a contributory negligence type argument to reduce damages. However, Texas law has gone full circle and returned to the mandates of Carnation Co. v. Wong. While the failure to wear a seatbelt may arguable be admissible for some purposes, such as in certain products liability crashworthiness cases, it is inadmissible under Carnation Co. v. Wong to reduce or show a failure to mitigate the Plaintiff’s damages.

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Governor Rick Perry signed into law his Omnibus Tort Reform Bill best known for its anti-consumer Loser Pay provisions.

The version of HB 274 that was signed into law is substantially different from the original bill. At the outset the most notable of the Loser Pay provisions were that Loser Pay did not apply unless invoked by the defendant and that if a settlement offer was rejected by a plaintiff who thereafter received a judgment for substantially less than the settlement offer then the plaintiff would be responsible, without limit, for the defendant’s attorney’s fees and expenses incurred after the rejection of the settlement offer. The latter provision could potentially create a situation where the plaintiff could file a meritoriously claim, prevail on the claim, and obtain a verdict against the defendant, but because the verdict was in an amount less than the settlement offer and the defendant’s attorney’s fees and expenses incurred after the settlement offer exceeded the amount of the verdict plaintiff could end up prevailing at trial yet owing the defendant money. No one but an insurance company would think that this result was fair or just. This provision was removed from the version of HB 274 which was signed into law.

Loser Pay must still be invoked by the defendant. This allows defendants to use Loser Pay as a strategic tool. Defendants can invoke Loser Pay only in those cases where they have a chance of winning and refuse to invoke Loser Pay in those cases where they have asserted frivolous defenses and are using litigation as a means of spending the victim into submission. HB 274 also increases the amount that a defendant can recover in attorney’s fees and expenses up to the total amount of the plaintiff’s recovery. It is difficult to predict the effect that HB 274 will have in practice. Because the Loser Pay provisions of the Civil Practices and Remedies Code Section 42 apply to both plaintiff and defendant once invoked by the defendant it is unlikely that defendants will be willing to open that can of worms at the courthouse.

Recent legislation proposed in the Texas Legislature would allow Texas college students to carry concealed handguns. Arming every Texas college student is probably not the best way to address the concern for the safety of our students on college campuses. The decision as to when to use a deadly weapon in self defense or the defense of others requires extraordinary judgment. Some have argued that if an 18-year-old is old enough to join the military, fire automatic weapons in combat, and die for their country then they are old enough to carry a handgun while going to class. This is false logic. The military provides specialized weapons training and soldiers use those weapons pursuant to direct orders and a rigorous chain of command. While many 18-year-olds are extremely competent with firearms the judgment regarding when to use a firearm is something that is more likely to come with age and experience.

This is not to say that the notion of having numerous concealed weapons on campus is a bad idea. Any adult working on campus should be authorized, and even encouraged, including by the payment of a stipend, to obtain a concealed handgun permit and to carry a concealed handgun on campus. Offering tuition discounts to graduate students or other older students who agree to complete a concealed handgun course and carry a concealed weapon while on campus is another viable option. However, allowing every 18-year-old college student the option of carrying a weapon on campus has the potential for obvious problems. Good judgment comes from experience. Experience comes from bad judgment. We don’t want our college students learning judgment with handguns on our college campuses.

For more information contact a Tyler Injury Attorney today.

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