Defective Products

Injured by a Defective Product? Can I Sue the Retailer in Alabama?

Published on: October 12, 2020 | by Hollis Wright

by HWCV Partner Carter Clay

Although online purchasing is becoming more and more common, products are still routinely purchased from a store or retail shop. If a defective product is purchased from the retailer and injures and kills someone, is the retailer liable? Can the retailer be sued in Alabama? If my client is an Alabama resident, and I sue the retailer, which is an Alabama business, will the case be removed to federal court?

The above questions are often asked by attorneys retained by clients injured by defective products. As explained hereinbelow, the answers depend on what is being claimed against the retail store. Alabama product liability claims are governed by the Alabama Extended Manufacturers Liability Doctrine (AEMLD). See Ala Code § 6-5-501.

A Simple Guide to the Ongoing Hernia Mesh Lawsuits

Published on: September 25, 2020 | by Hollis Wright

by Paige Caraway, HWCV Mass Torts Department

Hernia mesh implants have been used by surgeons to repair hernias for years. These mesh implants are made of either synthetic materials or biologic tissue (made from pigs or cows). But why would you need a hernia repair surgery in the first place? A hernia occurs when tissue protrudes through a weakened spot in the surrounding tissue or muscle. This can be very painful and ultimately lead to a hernia repair surgery. There are many causes of hernias, including: physical exertion (lifting heavy objects), muscle weakness, or obesity. The most common types of hernias are inguinal (inner groin), femoral (outer groin), umbilical (belly button), incisional (caused by an incision), and hiatal (upper stomach).

One of the primary treatments for a hernia is surgery using hernia mesh. A hernia repair surgery can be done laproscopically (when several small incisions are made to allow surgical tools into the opening), or open (when a large incision is made). The mesh used can either be synthetic or made with biologic tissue and is intended to provide extra support on the of the weakened tissue.

Are Consulting Experts Always Privileged and Confidential? Arguments For and Against Production

Published on: August 12, 2019 | by Hollis Wright

by HWCV Partner Carter Clay

Any attorney who represents clients in cases that require experts will more than likely come across discovery issues involving those experts. Who is considered an expert and whether or not his or her identity must be disclosed? Specifically, what about consulting experts that will not be a witness at trial, must his or her identity be disclosed to the other parties? In cases involving product liability, this is especially common because of the oftentimes-complex nature of the device at issue. So, what about the discovery of the identification of non-witness consulting experts “attending” the examination of the subject defective product? This article seeks to address circumstances whereby the confidential nature of consulting experts might be removed.

For instance, in a product liability claim where expert inspections of the product will take place, do the inspections have to be jointly conducted? Can one party insist upon taking possession of the product and conduct an inspection outside the presence of other parties? If one party and the experts take possession of the product, does that party have to disclose the identity of the expert(s) who will be involved in the inspection and handling of the product, and what will they do at the inspection?

Defective 3M Earplug Cases Centralized in Florida

Published on: April 22, 2019 | by Hollis Wright

Lawsuits brought by veterans of the United States military against the Minnesota-based company 3M have been consolidated into a multidistrict litigation (MDL) in the United States District Court for the Northern District of Florida. Various venues across the country were considered. Ultimately, the Judicial Panel on Multidistrict Litigation (JPLM) chose the Northern District of Florida as the home for the 3M Combat Arms Earplug litigation. The case has been assigned to the Honorable M. Casey Rodgers, a veteran of the United States Army.

The cases that will be transferred to the Florida MDL involve 3M’s Combat Arms Earplugs. These dual-ended earplugs were designed and manufactured for use by the military. The earplugs were issued to service members from 2003-2015. Because the earplugs would loosen in the user’s ears while being worn, they were not effective at reducing the level of sound, and ultimately caused permanent hearing loss and/or tinnitus.

The attorneys at Hollis, Wright, Clay & Vail, P.C. have extensive experience handling claims involving MDLs across the country. If you were a member of the military between 2003 and 2015, were issued dual-ended earplugs, and suffered from hearing loss and tinnitus, you may qualify for compensation. This lawsuit is not against the government or armed forces and does not affect disability benefits.

Proton Pump Inhibitor (PPI) Claims Granted Multidistrict Litigation (MDL)

Published on: August 10, 2017 | by Hollis Wright

The U.S. Judicial Panel (JPML), a separate body within the Federal Court System, has granted the plaintiff’s second motion for consolidating Proton Pump Inhibitor (PPI) drug claims to Multidistrict Litigation (MDL). This allows the plaintiffs to consolidate the cases that allege PPI drugs caused kidney disease in those who used them. The benefit for plaintiffs is that the consolidated action will expedite the overall process, prevent duplicate discovery, and reduce a backlog in the court system.

The PPI drugs at issue include four prescription drugs: Prilosec, Nexium, Protonix, and Dexilant; and three over-the-counter drugs: Prilosec OTC, Prevacid 24-hour, and Nexium 24-hour. Plaintiff’s allege these PPIs cause kidney injuries, which include acute interstitial nephritis, chronic kidney disease, and end-stage renal disease. This type of drug first received FDA approval in 1989.

The suits, citing a host of studies, claim the manufacturers of the PPI drugs (the defendants) should be held liable and accountable for the damage caused to patients while taking said drugs. Furthermore, the defendants should take financial responsibility for failing to warn consumers of the potential health issues related to PPIs.

Evidence of FDA’s 510(k) Clearance. Admissible or Not?

Published on: June 7, 2017 | by Hollis Wright

Medical devices, implants and tools are used daily by people and medical personnel all over the country and are intended to improve the overall health and quality of life in patients. These medical devices are often intended to prevent or protect against certain medical dangers or injuries during the course of performing medical treatment or surgery.

However, what happens when the medical device or implant causes an injury to the patient? Such an occurrence will likely result in the pursuit of a product liability lawsuit against the manufacturer by the injured patient. During the course of litigation, the issue of the U.S. Food and Drug Administration’s (FDA) 510(k) clearance process of the subject medical device will likely arise. The FDA’s 510(k) process is one way to introduce new medical devices or implants to the market. In pursuing the 510(k) approval route, the manufacturer will submit an application to the FDA seeking clearance under the 510(k) process. Among other items, the 510(k) application will include a description of the medical product and the intended use of the product. Further, the application will reference other similar products that are on the market being used in a substantially similar manner.

While we would like to believe that the FDA is conducting a thorough and complete analysis of each medical product that is on the market, this is not the case. The FDA was never set up in this manner and simply does not have the resources to conduct such an analysis on every product. This type of in-depth, thorough evaluation is reserved for a different class of medical devices and implants, which is known as Pre-Market Approval (PMA).

When Your Medical Device is Defective: Surgical Mesh

Published on: February 28, 2017 | by Hollis Wright

Millions of Americans annually rely on medical devices to either save their lives or improve the quality of their lives. While most medical devices perform properly and provide doctors with the means to maintain their patients’ quality of life, many devices fail and, either do not help the patient, or actually cause further harm. According to a May 2016 article in The Expert Institute, the FDA each year receives thousands of reports of deaths, injuries, and malfunctions associated with medical devices.

Surgical mesh is a commonly used type of medical device that has, in some cases, had adverse effects on patients. Hollis Wright is currently reviewing claims involving complications with two types of flexible, composite surgical mesh devices. Both mesh devices that Hollis Wright is currently investigating were recalled by the products’ manufacturer, not the FDA. Both products also were introduced via the controversial 510(K) Premarket Notification Program, not the FDA’s more stringent Premarket Approval Process (PMA).

The two surgical mesh devices for which Hollis Wright is currently reviewing claims are as follows.

The Admissibility of “Absence” Evidence

Published on: October 31, 2016 | by Hollis Wright

Evidence is the foundation of any successful lawsuit – a single piece of evidence can make or break an entire case. Not all evidence, however, can be presented to the jury. There are strict rules that the courts use to determine whether a specific piece of evidence will be admitted. Given the effect a single piece of evidence can have, these rules attempt to provide the appropriate balance in as many cases as possible. Courts may therefore allow a piece of evidence in one trial, but disallow that same piece of evidence in another based upon the individual factual scenarios of each trial. One area of evidence which highlights this dichotomy is the use and application of “absence evidence.”

“Absence evidence” is evidence that there are no prior documented occurrences of a certain event. Attorneys use “absence evidence” to argue that because there are no prior documented occurrences of said event, it is not likely that said event would have occurred on this occasion. One of the primary uses of absence evidence is in products liability cases. For example, manufacturers of an older product might want to show the jury that their product has not caused any accidents over the last twenty-years and thus it is less likely that their product is defective in the current lawsuit. When a party wishes to use absence evidence, particularly in these kinds of cases, the court must determine whether evidence that a prior event has not occurred is accurate and if so, is it fair to present such evidence to the jury.

1. Does the lack of a prior occurrence accurately reflect the prior history of the occurrence?

$500 Million Pinnacle Hip Verdict

Published on: May 2, 2016 | by Hollis Wright

After hearing thirty-seven days of trial testimony and deliberating for four days, a Texas jury determined that Johnson & Johnson was liable for defectively designing their metal-on-metal hip implants. The lawsuit alleged that Johnson & Johnson aggressively marketed their Pinnacle metal-on-metal hip implants for use by younger, more active patients because the metal-on-metal implants were long-lasting, durable and safe despite being aware of the design flaws in the implants, which caused them to fail more frequently and quickly than expected, leading to injuries including tissue death, bone erosion and high levels of metal in their blood. The five Plaintiffs who brought the lawsuit collectively received a $502 million judgment which was comprised of $142 million in compensatory damages and $360 million in punitive damages. The verdict will be split amongst the Plaintiffs based on the severity and impact that each Plaintiff suffered as a result of their individual injuries.

Unfortunately, Johnson & Johnson has vigorously stated since the massive verdict was returned that they will appeal the result. One of the many issues that will certainly be raised on appeal is Texas’ law which caps punitive damages. This means that on appeal the $360 million punitive damage award could be reduced to as low as $10 million.

However, despite a pending appeal and a possible overall reduction in punitive damages, the recent verdict is still an overwhelming triumph for Plaintiffs who suffer from defective metal-on-metal hip implants. Most notably, the recent verdict marks Johnson & Johnson’s first trial loss regarding the use of metal on metal artificial hips. In a prior trial in the same multi-district litigation (“MDL”), Johnson & Johnson was successful in defending a single Plaintiff suit based on its argument that it was the surgeon who installed the implant’s fault instead of the defective implant itself. However, based on this most recent verdict it appears the tide has begun to change in favor of the Plaintiffs, and Johnson & Johnson will no longer be able to overlook its defective product and place blame on the implanting surgeons.

Johnson & Johnson Hit with Fourth Million Dollar Verdict on Risperdal Failure to Warn Claims

Published on: November 18, 2015 | by Hollis Wright

Johnson & Johnson has faced several lawsuits over the past year alleging that Johnson & Johnson knew there was a link between their antipsychotic drug, Risperdal, and abnormal breast growth. Risperdal is a very powerful antipsychotic drug that Johnson & Johnson peddled to pediatric doctors for use by children even though the drug lacked certain approvals from federal regulators. Thus far, Johnson & Johnson has been hit with four separate jury trials all alleging that Johnson & Johnson not only knew that children prescribed Risperdal could develop a condition known as gynecomastia, but also that Johnson & Johnson failed to properly warn and/or disclose the risks of abnormal breast growth in adolescent boys prescribed Risperdal.

The Previous Three Jury Trials

In February 2015 the first Risperdal case was taken to a trial by jury. The jury returned a $2.5 million verdict in favor of the plaintiffs determining that Risperdal did in fact cause the plaintiffs injuries and that Johnson & Johnson failed to provide proper warnings. In the second case, the jury was less convinced as to the causal link between the drug and the plaintiff’s adverse condition. While the jury did agree that Johnson & Johnson failed to provide adequate warnings, the jury was not convinced that Risperdal caused the plaintiffs to develop abnormal breast growth. As such, the second jury awarded no damages against Johnson & Johnson. The third case began October 15, 2015 and the trial is still ongoing. Lead counsel for the young man who developed female breasts after taking Risperdal as a child stated recently that “Risperdal [is] a powerful antipsychotic drug which was promoted and marketed even though it wasn’t indicated for children.”