My first blog this week offered some ideas for topics to consider when strategizing how to win your hip implant case involving Smith & Nephew’s unapproved combination of metal on metal implant components. I mentioned that surgeons and sales reps could face potential legal liability for their roles in surgeries involving hip implants that the Food and Drug Administration repeatedly declined to approve for use in this country. I promised to give examples of some evidence that can be used against the surgeons and sales reps. That’s what I’ll do in this blog.
SURGEON AND SALES REP LIABILITY.
Most Plaintiff’s lawyers will probably agree that it is best to begin every case with a careful analysis of all the potential people or companies that can be sued in that particular lawsuit. You hire a lawyer to obtain the fullest justice possible for you, and that includes consideration of who to sue if you are going to file a lawsuit. For example, I don’t think there are many lawyers in America who would deliberately sue just one of the drivers if you were involved in a four-car collision where everyone had a slightly different story about what happened. Most lawyers would at least consider suing all four drivers and let them fight about who is at fault. Similarly, if you fall on a slippery floor while the cleaning crew was talking to the building owner and general manager, then your lawyer will probably sue the cleaning crew and the building owner. Maybe even the general manager. Most lawyers would sue all potential parties and let them fight it out.
I think medical device cases are just like slip and fall cases and car wrecks in terms of the need to identify all potential parties. Why not carefully consider the potential liability of everyone involved in your surgery with unapproved metal parts? This blog is written for those who want to seek full justice from everyone responsible for a patient’s harm when their unapproved Smith & Nephew hip implant components fail.
- SALES REP LIABILITY.
A Smith & Nephew “Sales Rep” is a person or company who represents Smith & Nephew in dealings with the company’s customers. The federal judge overseeing all federal cases involving Smith & Nephew metal hips issued a Memorandum Opinion last week that expressly recognized the potential validity of including sales reps in some of these cases. The August 22, 2019 Memorandum Opinion in Fondren v. Smith & Nephew, et. al is on the Legal Page of my website. The Fondren decision is a game changer for several reasons, but I am not focusing in detail on that opinion today. This opinion paves the way for finding liability against the commission-based sales reps who were involved in your surgery.
The federal judge overseeing these cases nationwide has written an opinion saying there can be valid causes of action against the sales reps in some cases. There are two Federal Court decisions in Dallas saying the exact same thing.
Some of the commission-based sales reps in cases I’m involved in are viable parties in cases involving unapproved combinations of metal parts. An added benefit to suing the sales reps is that you frequently can stay in state court if you do that. There are many benefits to suing the sales reps and, to my knowledge, there is no downside to using that strategy.
- SURGEON LIABILITY.
The surgeon in your case also has potential legal liability in a case involving unapproved Smith & Nephew hip implants. The federal judge overseeing the federal cases involving Smith & Nephew metal hips issued a Memorandum Opinion last week that expressly recognized this. That August 22, 2019 Memorandum Opinion is on the Legal Page of my website. The case involves a client of mine. It may pave the way to establishing liability against the surgeons involved in other cases.
But you don’t have to take my word for it. The box for the femoral head used in almost every Smith & Nephew THA says the parts were approved for “HEMIARTHROPLASTY USE ONLY.” That is half of a total hip replacement. The femoral head was only cleared for a procedure where it rubs against bone, not hard metal. Similarly, the boxes for the BHR cup and R3 Metal Liner say the part is only approved for resurfacing.
Another place to look for liability is the writings inside the boxes for the parts. The Surgical Technique for at least one of the resurfacing parts used in your THA surgery expressly said that the femoral head was not available for use in THAs in America. How did this happen? You’ll need to ask your doctor.
I think the Smith & Nephew unapproved hip implant facts make for a great case against the surgeon and sales rep in addition to Smith & Nephew, but those same facts could sometimes cause problems in a case where the surgeon and sales rep were never sued. Careful planning and early investigation will help unravel what happened in each individual case.
As always, feel free to send private or public questions about this week’s blogs. You or your lawyer can reach me via phone at (972) 294-7530 or through my online Contact Form or Hip Implant Questionnaire. I cannot talk with you about your case if you are represented, but I would gladly talk with your lawyer if he or she reaches out to me.
Good luck with your Smith & Nephew cases!
 Kemp v. Pure Play Orthopaedics, et. al.