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As we’ve reported on several occasions, our office is involved in the DePuy ASR hip implant recall litigation. In fact, we recently scored a minor victory against DePuy in one of our cases filed in Jackson County, Missouri. DePuy had sought to remove the case from the Missouri State Court in Jackson County to the United States Federal District Court. After extensive motions, the federal judge in the Western District of Missouri granted our Motion to Remand–one of very few such motions granted around the country.

In other developments, most DePuy ASR cases are being litigated in a Multi-District Litigation case pending in the United States District Court for the Western District of Ohio. There, the plaintiffs’ attorneys are working together to conduct discovery. It is anticipated that DePuy will release, literally, millions of pages of documents.

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This isn’t in my usual area of practice, but as a long-time Apple user and fan, I thought I’d pass this link along: Apple Patent Infringement. Oh well, I’m sure it will be appealed.

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DePuy, the manufacture of many types of orthopedic implants, issued a recall on its ASR hip implants last year. However, our office has seen a number of inquiries regarding the DePuy Pinnacle implants. Both implants appear to have similar issues: the “metal-on-metal” configuration creates metal debris in the hip. This metal debris causes an infection-like reaction, called metallosis. The result is a painful hip and, often, damage to bone and surrounding soft tissues as well as loosening of the components. The treatment is usually a surgical revision of the implants.

If you have a DePuy Pinnacle hip implant and have experienced any problems, please contact our office at 314-721-8833 or 1-800-557-8176 for a free consultation.

It probably isn’t obvious to most people, but I believe the Wisconsin governor’s plan to strip state unions of rights and so-called “tort reform” have a common goal … and it is pure politics.

Generally, labor unions have been stalwarts of support for the Democratic party. Also generally, the plaintiff’s personal injury and medical malpractice bar have been among the Democratic party’s strongest financial backers. There are exceptions to both situations, but overwhelmingly trial lawyers and unions are critical supporters of most Democratic candidates.

Tort reform and labor reform have an insidious common purpose-to break the financial back of the Democratic party. Look at the history of both efforts. You will rarely find Democratic support for these measures. Why? Because traditionally the Democratic party mission is to support the rights of working class people. That’s what labor unions do and that is what trial lawyers do to.

I’m proud to call myself a trial lawyer. I spend every day fighting for the rights of people who otherwise couldn’t afford an attorney. I was raised in a union household. I’ve walked a picket line with my father. I know what unions did for my family.

Make no mistake about it, labor “deform” and tort “deform” have the same purpose. And it is purely political.

California was one of the first states to institute caps on medical malpractice awards back in 1983. The limit is only $250,000 for non-economic damages. Well, recent reports in the Sacramento Business Journal reveal that the largest malpractice insurer in California is paying out less than 10% of what it collects in premiums to pay claims. It is spending far more to defend claims and even more goes directly to profit. Other insurers in California are paying out as little as 3% in claims. As a result, the insurance commissioner is requesting rate decreases.

This points out that caps do not result in reduced premiums for doctors–they result in higher profits for insurance companies. No surprise, since insurance companies are some of the biggest supporters of so-called “tort reform.” Why? Bigger profits.

We don’t need caps and other forms of “tort reform” in this country. What we need is insurance reform.

The Missouri Supreme Court has unanimously abolished the last vestiges of contributory negligence in the recently decided Children’s Wish Foundation International, Inc. v. Mayer Hoffman McCann, P.C.. So what is contributory negligence and why should you care?

First, what is it? In 1983 the Missouri Supreme Court adopted comparative fault. Under comparative fault a jury will decide the relative levels of fault of the various parties involved in any kind of negligence case. The issue arises most often in personal injury and medical malpractice cases. Take your basic auto accident case. In an intersectional accident, you may have one driver who failed to yield and the other driver may have been speeding. Both are at fault. Under comparative fault the jury decides how much each party is at fault. For example, if one driver is injured and the jury finds that he was 10% at fault, the jury would decide the value of that drivers injuries and then the judge would enter a judgment for 90% of the damages. The system is inherently fair and equitable.

Before Missouri adopted comparative fault it operated under the contributory negligence standard. Under contributory negligence if the injured driver was even 1% at fault, he could not recover anything for his injuries. An inherently unfair system. But as I said, it was abolished in 1983, right? Well, not entirely. And that leads to why it might matter to you.

In the intervening years, various appellate courts have determined that contributory negligence was still the standard in negligence cases that involve only monetary damages, as opposed to physical injuries. Mostly this was cases of legal malpractice and accounting malpractice. The result? Attorneys and accountants sued for malpractice have been able to show even slight negligence on the part of their clients and walk away without paying a dime for the damages they caused by their negligence.

Well, not anymore. The Children’s Wish Foundation case has clearly and finally abolished contributory negligence in Missouri. From now on a jury will be instructed to determine the relative fault of all parties in any negligence case.

And that is a good thing for all Missouri citizens.

Todd N. Hendrickson concentrates his practice in the areas of medical malpractice, personal injury, and legal malpractice. You can contact him by clicking here or calling 314-721-8833.

Congressman Phil Gingrey, Republican from Georgia, is again sponsoring a congressional bill to sharply cut malpractice awards. Interesting, since, as the New York Times reports on February 8, 2011, Congressman Gingrey has been sued for medical malpractice and his insurer has paid a settlement.

The details of the lawsuit are contained in the New York Times article, so no need to repeat them here. Suffice it to say that Congressman Gingrey is also Dr. Gingrey, an obstetrician. And this isn’t the first time he’s introduced bills to protect doctors at the expense of their injured patients.

The simple fact is that good doctors make mistakes and when they do, people die or are badly hurt. Medical malpractice is simply medical negligence. You wouldn’t restrict an award that could be entered against a trucking company that caused a death in an accident would you? If not, then why would you restrict the right for the victim of medical negligence to be fully compensated? The injuries aren’t any different. Death is still death. Whether the negligent person is a truck driver, an airplane pilot, a company that manufactured a deadly product, or a doctor, negligence is negligence.

And when the person introducing the bill is biased, you have to wonder. Don’t you?

This is the first in an occasional series of posts that I’m calling “How to Lose Your Accident Case.” With this series I intend to outline for you many of the things that accident claimants regularly do that seriously negatively impact their case, either causing them to get no recovery, or a substantially reduced recovery.

Lie to your lawyer. That’s it, the number one thing you can do wrong. Lie to your lawyer and you will negatively impact your case. What are some of the common lies that some clients tell, or things that they conveniently forget to tell their lawyer?
1. Lying about how an accident happened. If it is an auto accident, there will be a police report and witnesses. Insurance companies can and will hire private investigators. The truth will come out. You are much better off to tell your attorney the truth, right from the beginning. The problem may not be that big. Or it may not be a problem at all, but you won’t know unless your attorney has the ability to evaluate all the facts.
2. Lying about prior accidents, claims and injuries. This one is a no-brainer. Insurance companies have access to vast databases. If you’ve been injured and made a claim for benefits, they’ll probably have access to it. If not, there will be accident reports and medical records that they will find. Tell your attorney everything about other accidents, claims and injuries.

Almost 100,000 patients have received the DePuy ASR, metal-on-metal hip implant system. Those implants are failing at an alarming rate, at least 13% in the first few years. That is far beyond any “normal” failure rate. As a result, DePuy, a subsidiary of Johnson & Johnson, has recalled these hips.

The problem is, you can’t easily “recall” medical devices that have been implanted. That means they have to be explanted, or surgically removed and replaced. In the case of hip implants, this is called a revision, and it can be an expensive and painful operation.

If you have a DePuy ASR metal-on-metal hip implant, and you talk to your doctor about a hip revision, please talk to an attorney before you have the surgery. Reports are appearing around the country of hospitals treating these explanted hip components as medical waste and discarding them. Don’t let them do this to you! The removed implant is vital evidence. Just because the hip has been recalled doesn’t mean that you will automatically win a case against DePuy. You will still have to prove that the implant was defective in some way and the implant itself is the best evidence.

Please contact our office you have had a DePuy hip implant and need to discuss your legal rights.

Hot Coffee, The Movie is a documentary entry in this year’s Sundance Film Festival. Hot Coffee is the story everyone thinks they know about crazy “runaway” juries awarding huge sums of money when people do stupid things and hurt themselves.

Well, that version of events was bought and paid for by a massive public relations campaign just like the one the U.S. Chamber of Commerce is currently running to try to get the public to buy into “reforming” our justice system. The problem is, this version of events, like all great lies, is founded on only a grain of truth. Stella Lieback, a 79 year old woman who, in 1992, spilled a cup of McDonald’s scalding coffee in her lap causing severe third degree burns. What isn’t usually talked about is the years of surgery and medical treatment Stella endured. What’s never discussed is the fact that the size of the jury’s verdict reflected their outrage when they learned that McDonald’s had been sued numerous times over severe burns caused by their coffee and that despite the known danger, they continued to serve their coffee at a temperature that could not be consumed by most individuals because by keeping it scalding hot, they could sell it longer without having to brew fresh pots of coffee. The temperature of the coffee was mandated by McDonald’s corporate offices in order to save a few cents.

Hot Coffee is an important piece of documentary film, telling not only the story of Stella Lieback, but others who have been destroyed by the public relations campaigns to limit your access to the Courts.

Today the 112th Congress was sworn in and the new Republican Majority ceremoniously conducted a reading of the U.S. Constitution. Hopefully, they listened when they read the 7th Amendment right to trial by jury. If they hold the Constitution as dear as they claim they do, then they will oppose any attempts to limit your right to trial by jury, whether it is imposing caps on lawsuits or punitive damages. A jury of your neighbors will know what is right. That’s what our founding father’s wrote into the Constitution.