Kip Petroff No Comments

SMITH & NEPHEW HIP IMPLANT CASES AND THE “EMPTY CHAIR DEFENSE.”

My law firm is the only one in America dedicated exclusively to suing Smith & Nephew for its selling of defective metal-on-metal hip implants.

We believe that Smith & Nephew is the only major medical device company that sold its hip implants in this country despite FDA restrictions against doing so. Over a five-year period, the British company sold its metal implants in an unapproved combination of components to thousands of Americans . The damage becomes more obvious each day as more and more implanted devices break down inside unsuspecting patients’ living tissue.

I. Smith & Nephew’s Defective Hip Implants.

If you (or your client) were implanted with a Smith & Nephew metal-on-metal hip implant for a total hip replacement between 2006 and 2015, then that surgery probably involved an unapproved combination of parts that the FDA specifically rejected for these procedures.

II. After a great deal of legal success, I retired in my fifties and devoted myself to charity work. It was through my charity that I first learned about these cases. The wife of one of the charity’s donors had a bad hip implant and I agreed to check out a potential case. My initial research led me to believe that Smith & Nephew acted negligently in marketing this combination of devices.

I still do my charity work, but mostly, from the game room over my garage, I fight to hold this foreign company accountable for the pain and suffering it has caused on American soil. There are no expensive fountains or artwork in our lobby. There’s no receptionist. There’s a small team of dedicated, specialized attorneys who are fighting Smith & Nephew every day.

III. Smith & Nephew Litigation.

Smith & Nephew is facing over a thousand metal-on-metal hip implant cases nationwide. Most of the cases involve an FDA-approved device known as the Birmingham Hip Resurfacing System (“BHR”). There are more than five hundred BHR cases filed against Smith & Nephew nationwide but those cases are different because they involve a device that the FDA specifically approved for sale in America and for a completely different procedure.

My law firm is more interested in the two hundred and fifty + cases involving metal-on-metal hip implants. Almost all are filed in Federal Court, and the centerpiece of all the Federal Court cases is the allegation that the company concealed information from the surgeons that used the unapproved devices. The implanting surgeon and the sales reps who helped with the surgery are NOT sued in any of the Federal Court cases. But is that the best approach?

IV. Smith & Nephew’s “Empty Chair” Defense.

Lawyers frequently refer to the “Empty Chair Defense” when not all responsible parties are sued in a lawsuit. They point to the fictitious “empty chair” and say that is who you should be suing. “Mr. Plaintiff’s Lawyer forgot to sue the company (or person) sitting in that ‘empty chair’ over there.” The “Empty Chair Defense” can be a devastating defense in some of these cases
Many non-lawyers probably never heard of the “Empty Chair Defense”, but some people may remember the famous “Empty Chair Speech” that Clint Eastwood gave at the 2012 Republic Presidential Convention. He had an empty chair next to him as he stood at the podium while he questioned and criticized that empty chair. It was the centerpiece of his speech. The person in the “empty chair” was President Barack Obama.

A. Empty Chair Defense # 1. The Implanting Surgeon.

Last month, Smith & Nephew used the empty chair defense in two depositions even though the surgeon is named as a Defendant in the cases. Defense lawyers spent close to two hours focusing exclusively on the surgeon’s job performance. Luckily, that same surgeon had a quality lawyer representing and defending him, but that’s not always the case.

B. Empty Chair Defense # 2. The “Independent” Sales Rep.

A different challenge is presented when Smith & Nephew’s “independent” sales rep is not a Defendant in the lawsuit. Smith & Nephew’s business practice during the metal-on-metal era was to have someone with the company attend almost all implantation surgeries. This person is usually a commission-based “sales rep” who represents the company, but is usually “independent”, which makes a big difference legally.

In my cases, the sales rep usually has his or her own little company that earns commissions from each surgery. That company offers yet another potential legal degree of separation from Smith & Nephew.

CONCLUSION. Personal injury lawsuits against sophisticated medical device companies are difficult to win. This is serious business and your chances of winning improve when you bring all available resources to the case. The opposite is true when you do not.

You cannot forget the empty chair, because if you do, it may cost you dearly once you get to trial.