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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 irresponsible selling of defective metal-on-metal hip implants. One reason for our laser focus on Smith & Nephew is the company’s cavalier disregard for FDA Orders: willfully and repeatedly encouraging surgeons to use hip implants that the FDA labeled as dangerous and for which clearance had been denied.

Smith & Nephew is the only major medical device company that ignored FDA restrictions against selling their metal hip implants in this country. After four failed attempts over a five-year period, the British company ignored repeated FDA Orders and sold their unapproved metal implants to thousands of Americans anyway. The damage caused by their callous disregard for health safeguards becomes more obvious each day as more and more implanted devices, inferior from day one, break down inside unsuspecting patients’ living tissue.

 

I. Smith & Nephew’s Bad 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 illegal combination of parts. Being implanted with a medical device that the FDA specifically rejected should never occur in America; those safeguards are there for public protection. But it did happen. It wasn’t a “one off.” It wasn’t a series of “special cases.” It wasn’t a doctor making an exception because he or she felt it was the best medical choice for a particular patient. It was greed. And so over and over again, unsuspecting patients were implanted with subpar, rejected materials…thousands of times between 2006 and 2015.

 

II. Them Versus Us.

Smith & Nephew is a very wealthy, very greedy trans-Atlantic company. It thinks nothing of hiring pricey teams of lawyers in large big-city firms to defend itself and to defeat you.

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 FDA rejected cases. The wife of one of the charity’s donors had a bad hip implant and I agreed to check out a potential case. At first, I couldn’t believe that a medical device company ignored the Federal consumer protection organization responsible for its regulation. But my initial research unearthed a pattern of irresponsible corporate behaviors.

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. Smith & Nephew has forty-three lawyers on just one case I have against them in Beaumont, Texas. They have dumped almost four million documents on my tiny team, have asserted more than thirty legal defenses, and have dragged their pricey entourage of high-powered paper pushers to nearly two dozen depositions. They have attested to spending “millions” of dollars defending that one case. And they show no signs of slowing.

 

III.     Smith & Nephew’s Aggressive Litigation Tactics.

Why does the company fight so hard? The answer, as usual, is MONEY. It’s all about surviving as a company. 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. Smith & Nephew uses the same aggressive tactics in those cases, 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. It’s the courtroom version of the “Blame Game.” It is easier to blame a company or person if they are not even present in Court.

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’s lawyers 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 tries to gain the surgeon’s trust.  They represent the company, but they are usually “independent”, which makes a big difference legally.

The sales rep almost always knew that the product was not FDA approved. The sales rep is supposed to inform the doctor about the lack of FDA approval, but he or she almost never does. In my cases, the sales rep usually has his or her own little company that rakes in huge 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. The company frequently has unlimited resources and they use them to discourage people from suing them. 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.

Smith & Nephew’s lawyers think nothing of throwing unnamed parties under the bus. They will accuse the implanting surgeon of medical malpractice. They will accuse the independent sales rep of committing a crime.

But they will deny any wrongdoing.

These are the challenges you face should you desire to hold Smith & Nephew accountable for their arrogance and their greed. They circumvented FDA safety guidelines to sell your surgeon a dangerous, untested, metal-on-metal hip implant that has likely corroded inside your living tissue. You should be angry. This could have been avoided. You cannot forget the empty chair, because if you do, it may cost you dearly once you get to trial.