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There are currently almost seven hundred metal on metal hip implant cases filed against Smith & Nephew, Inc. in this country, with more getting filed every week. As of a filing from August 26, 2019[1], there were 204 involving metal on metal total hip arthroplasties (“THAs”)[2]. The so-called THA cases involve products that were not FDA cleared for use in total hip replacements. In fact, the FDA repeatedly declined to clear the Smith & Nephew devices that were used in thousands of Smith & Nephew THA surgeries across America. That means that surgeons who implanted these devices in THAs did so in an “off label”, unapproved manner, exposing him or her to potential legal liability. The commission-based sales reps who encouraged such use also could have personal liability if he or she knew it was happening.

Internal Smith & Nephew documents show that the company agrees with me. I have seen emails and business documents that show the Smith & Nephew executives believed the unapproved nature of this combination of parts created potential liability for the surgeons, and sales reps were told they could lose their job or even get “prosecuted” for promoting unapproved usage of the parts.

I think the above facts implicate the surgeons and sales reps in some products liability cases involving these unapproved products. These facts also present the opportunity for creative ways to seek justice on behalf of people who have suffered injuries from these dubious devices.

The Smith & Nephew THA cases on file in American courts today have a lot in common. Roughly 99% of them are filed in Federal Court. One hundred percent of the cases allege that the company’s metal hip products caused harm to people, and they also all allege that the company concealed important medical information from surgeons and from the public. More than 99% of the Federal cases are currently consolidated in front of one Federal judge in Baltimore, Maryland.

Three other important things that more than 99% of the Smith & Nephew THA cases nationwide have in common include the following:

  1. No surgeons are sued.
  2. No Smith & Nephew sales reps are sued.
  3. Smith & Nephew will blame the surgeon or sales reps for the use of unapproved combinations of Smith & Nephew metal parts.

I predict there will be an emerging nationwide concern among Smith & Nephew THA implant victims when people realize that their cases usually do not include all responsible necessary parties, such as surgeons and sales reps. The concern will increase when people start realizing how good Smith & Nephew’s lawyers are at blaming those absent but partly responsible surgeons and sales reps. I saw this for myself last week at a deposition of a surgeon expert in a case where the implanting surgeon performed almost 200 surgeries using unapproved Smith & Nephew parts. That deposition convinced me I need to rethink my strategy. Fortunately, a court decision last week showed me the path to doing just that.

This blog is written today to emphasize the importance of understanding what the surgeon and sales reps knew about the Smith & Nephew hip implants when they were implanted in you or your client. It is necessary to know this when deciding if the surgeon and/or sales reps should possibly be added as Defendants to the THA lawsuit. I like to find these things out early on, because I have seen situations where the surgeon was blind to information all around him and the sales rep happily let him remain ignorant while earning large commissions.

I am sharing the information below because it would help my clients obtain justice in their cases if more people employed some of the creative legal tactics I describe below. This analysis shares things I learned just last week about this exact topic.

  1. The “Blame the Surgeon or Sales Rep Defense.”

I believe that anyone suing Smith & Nephew for bad THA hip implants needs to carefully analyze the medical and scientific evidence that was available to the surgeon at the time he or she implanted the device. Equally important is the need to consider what the commission-based Smith & Nephew sales rep knew when the unapproved combination of parts was implanted. What did they know and when did they know it? What did they do about it? The company already knows all these answers, and some of their lawyers have been diligently working on how to use this information to defend the THA cases for well over a decade. You need to learn this information if you want to have the best chance of proving your THA case against whoever you have decided to sue.

I know this information about Smith & Nephew’s defense of THA cases because I have seen their tactics over the past five years, and the company’s defense strategy was made crystal clear last week when one of my experts gave his deposition in a Smith & Nephew case that is set for trial soon. I have attended almost thirty depositions in Smith & Nephew cases over the past five years, but last week was the first time for one of my experts to give testimony. It was a real eye-opener for me despite all this recent experience fighting this company.

I would be concerned right now if the surgeon and sales reps were not named as Defendants in my Smith & Nephew THA cases. The liability facts against the surgeon and sales rep in some of these cases are that strong.

There will be slight variations of the “blame the surgeon or sales rep defense” in each THA case, but I think that defense will potentially be there in every one of them. You may have to look for it sometimes because the company lawyers don’t broadcast that they are using these defense tactics, but they probably are going to try to blame the surgeon and/or sales rep to some extent in every THA case. You can be sure they are considering that defense in every case. They can’t help it. The defenses are too obvious and the evidence too strong for them not to make use of the facts.

  1. The Defense is Easy.

One of the scariest things about the “blame the surgeon or sales rep defense” is that it is so easy to employ. Defense lawyers like easy defenses. All they have to do is determine the date of implantation surgery and then go to the company’s massive library of sales and surgeon data and see what the surgeon and sales reps knew and what they were doing at the time. The company has all this information readily available in electronic, searchable form. They have been preparing for this day ever since the FDA started rejecting the company’s applications for permission to sell these unapproved parts in America way back in 2006.

Did the sales rep know the combination of parts used was not FDA approved? I guarantee he or she knew unless they were completely oblivious to their surroundings, in which case I think you MUST sue any sales rep that is that clueless. Did the surgeon know? Maybe not, but he or she certainly should have known. It was in writing on and in the boxes these parts came in. The surgeon in last week’s case has sworn he was ignorant of the fact the parts were not FDA approved. This despite written warnings and instructions both on the boxes the parts came in and throughout the paperwork inside the boxes. He claims he was ignorant even though he used this unapproved combination of parts in almost one hundred people before he unknowingly implanted the unapproved parts in my client.

How could a good defense lawyer for Smith & Nephew ignore the facts that the surgeon ignored? They cannot do it and they won’t even try. They will focus on the written warnings and instructions on and in the product boxes, and they will easily establish that anyone bothering to read this information must have known the combination of parts was not FDA approved. It’s then up to the surgeon and sales rep to justify what they did.

I think these facts make for a great case against the surgeon and sales rep in addition to Smith & Nephew, but they could spell trouble in a case where the surgeon and sales rep were never sued.

CONCLUSION. Surgeries involving implantation of unapproved medical devices make for very interesting products liability cases. I think there is always the need to explore the possibility of suing the surgeon who implanted the unapproved parts and/or the sales rep who facilitated and frequently encouraged the surgery. I have seen for myself how easily the company can blame the surgeon and sales reps when things go wrong after such surgeries.

Later this week, I will post a blog that will provide some examples of evidence that can easily be used against the surgeon and sales reps. It is evidence showing what they knew and when they knew it. It is evidence that will be used against YOU if you don’t figure out how to use it against them. After that, I will write about last week’s Federal Court opinion that paves the way for a new strategy that includes the surgeons and sales reps in some of the THA cases. Last week’s decision recognizes the general validity of the Smith & Nephew THA cases against surgeons. I know of two other Federal Court cases in Dallas that recognize the general validity of THA cases against local Smith & Nephew sales reps. These decisions will all be used against you if you don’t figure out how to use them against all of the responsible parties in your 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.

Good luck with your Smith & Nephew cases!

 

[1] Every Monday, Smith & Nephew files a report in Baltimore Federal Court on the number of each cases filed against it. The August 26, 2019 Report is on the Legal Page of my website.

[2] The differences between these cases has been explained in my past blogs and in various legal articles on my website. See, for example, “Smith & Nephew Hip Implant Plaintiffs Need to Look Before They Leap Into a Federal Court Slowdown” from May 14, 2019, and “Chicago “Bet the Company” MDL Seminar + What’s So Special About Smith & Nephew Metal Hip Implant Cases?”, from May 30, 2018.

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