Dangerous Drugs and Medical Devices

Safer Alternative Design Proof in Defective Product Cases

Published on: December 30, 2022 | by Hollis Wright

by HWC Partner Carter Clay

To establish the existence of a safer design, a plaintiff, typically through an expert must provide substantial evidence to show (1) that the injuries caused by the product would have been less severe or eliminated by the use of an alternative design and (2) that the utility of the alternative design outweighed the utility of the design actually used. General Motors Corp. v. Jernigan, 883 So. 2d 646, 662 (Ala. 2003). There is no rule of Alabama law that states that the expert must test the safer alternative design to meet the substantial evidence threshold. In fact, “[no] one denies that an expert might draw a conclusion from a set of observations based on extensive and specialized experience.” Kumho Tire Co., Ltd. V. Carmichael, 526 U.S. 137, 156 (1999).

I. Examples of Substantial Evidence

Post-COVID Jury Verdicts … What’s Going On?

Published on: June 15, 2022 | by Hollis Wright

by HWC Managing Partner Josh Wright

Post-COVID verdict averages in personal injury claims are up close to 50% from that of pre-COVID verdicts, according to recent statistics.¹ Verdicts in 2022 alone for Alabama injury victims have topped $97,000,000 in cases involving a wide array of wrongful conduct, including contract disputes, auto, medical malpractice, co-employee, fraud, discrimination, and uninsured motorists. See some of those recent verdicts below (based on lawyer-disclosed data):

Juries appear to listen carefully, consider all the evidence and thoroughly asses fundamental fairness in cases post-COVID. Insurance companies are also getting the message that juries are ready and willing to put aside politics and division in a courtroom, and award fair results in legitimate and real injury cases. Our firm alone has resolved (both at trial and pre-trial), a substantial number of lawsuits for unprecedented money in the last 12 months, which in no small part is because insurance companies have heard the message and listened to recent jury verdicts across the Country.

A Simple Guide to the Ongoing Hernia Mesh Lawsuits

Published on: September 25, 2020 | by Hollis Wright

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.

The most common and widely publicized lawsuits involve synthetic hernia mesh manufactured by Atrium, Bard/Davol, Covidien, and Ethicon. Lawsuits have been filed around the country and include claims that these hernia mesh devices are defective in many ways—migrating, not incorporating well into the body, or balling up. Many claimants allege that they suffer from serious injuries due to defective hernia mesh products including:

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

Published on: August 12, 2019 | by Hollis Wright

by HWC 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?

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.

$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.”

C.R. Bard Inc.’s IVC Filter Litigation

Published on: September 16, 2015 | by Hollis Wright

What are IVC filters and when are they used?

Intra Vena Cava (“IVC”) filters are small spider-like devices that are implanted in the veins of patients in the hope that the filters will stop blood clots from reaching the patient’s lungs and other vital organs. IVC filters are designed to capture blood clots that occasionally break free from the deep veins inside a patient’s body before the blood clots can reach the patient’s lungs and cause a decrease or a complete stoppage of blood flow to the patient’s lungs. However, hundreds of reports from across the nation indicate that the devices may fracture or break after implantation resulting in serious injuries and in some cases death.

IVC filters are usually implanted in patients who are at risk for having a sudden blockage of a major blood vessel, known as a pulmonary embolism, and are either unable to take anticoagulants or the patient has taken anticoagulants but they have failed to properly prevent the patient’s blood from clotting. The IVC filters are supposed to be a safe alternative which prevents blood clots from forming in a patient’s blood vessels. However, in April of 2015, the Journal of the American Medical Association published a study comparing the treatment of patients presenting with an acute pulmonary embolism and a high risk of recurrence using a retrievable IVC filter plus anticoagulants versus using anticoagulants alone. The study revealed that “the use of a retrievable inferior vena cava filters plus anticoagulation compared with anticoagulation alone did not reduce the risk of symptomatic recurrent pulmonary embolism at 3 months.” Furthermore, the study suggested that patients with IVC filters may be twice as likely to suffer from a serious, and sometimes fatal, pulmonary embolism than patients who were prescribed anticoagulants alone. Therefore, the study suggests that IVC filters should not be used in cases where patients can be treated with anticoagulation.