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NATIONWIDE LITIGATION BEGINS AMID A RAPIDLY INCREASING NUMBER OF CASES

My last Blog promised an overview of the Smith & Nephew metal hip litigation at the halfway mark of 2018. Today I will highlight some of the key litigation events that have already happened nationwide this year, and I’ll also predict what is likely to occur in this rapidly expanding litigation for the rest of 2018.

There are two types of court systems in America, and there are cases filed against Smith & Nephew, regarding bad metal hip devices, in both. You have probably heard the expression, “Don’t make a Federal Case out of it!” Most people with lawsuits currently pending against Smith & Nephew are doing exactly that: filing their cases in Federal Court, apparently disregarding potentially beneficial state court alternatives. In my opinion, they are missing an opportunity. Let me explain.

FEDERAL COURT LITIGATION UPDATE.

If you have a metal on metal hip implant case filed against Smith & Nephew, then your case most likely is in Federal Court in Baltimore, Maryland. As of yesterday’s official update, there are currently 308 BHR (resurfacing) cases and 88 THA (total hip arthroplasty) cases in the “MDL” (the official grouping of federal cases).

New cases are filed weekly, and the MDL Judge continues to establish a framework for resolving the growing docket by holding monthly hearings, the next of which is tomorrow. The Agenda for tomorrow’s hearing in Baltimore contains just four entries: (1) “In Chambers Meeting”, (2) “Status of MDL filings”, (3) “Status of BHR discovery”, and (4) “Coordination and management of THA cases (including R3 cases).” Those are the same general topics that will probably be discussed in one form or another at all the remaining hearings in the MDL Court this year.

* The BHR Cases. The MDL Proceedings in Baltimore began with BHR cases in early 2017, and it looks like the Court is going to push them to trial first. The Court and parties are fully engaged in defining how the BHR cases will be litigated.

The BHR cases involve a relatively new “resurfacing” procedure that supposedly involves less bone loss than a traditional THA surgery.  It was FDA approved for marketing to “young people who might need a revision procedure later in life.” The vast majority of BHR Plaintiffs with cases are suing because they ended up needing a revision procedure later in life. A March 26, 2018 Memorandum Opinion from the MDL Judge limited the scope of valid claims involving this procedure and product, so current discussions seek to define how Plaintiffs will be allowed to develop their cases within this limited framework.

There is a tentative trial date of March 2020 for one or more of the BHR cases. No one, including the Judge, knows exactly how the first BHR case(s) will go to trial, but March 2020 in Baltimore appears to be a firm trial date – at least for now. Absent a settlement, that is apparently the soonest any BHR trial Plaintiff will see the inside of a Federal Courtroom.

* The “THA” Cases. Probably one of the biggest developments of 2018 for the Smith & Nephew cases in Federal Court was the inclusion of two additional types of Smith & Nephew hip cases. Both are THA cases, meaning there is an artificial femoral component that replaces the entire tip of the natural femoral bone as well as an acetabular component similar to the one used in resurfacing. Including these in the MDL came as a surprise to people familiar with these cases, because the Panel of Judges overseeing them had earlier ruled against their inclusion. The first THA cases were included in March 2018, and there has been a steady stream of new additions since then. The Federal Court THA cases are all in the MDL in Baltimore, and that’s probably where they’ll stay for years, absent a settlement.

* Smith & Nephew’s Defenses. The most recent Smith & Nephew Court filing was a weekly update that merely listed the number of THA and BHR cases pending in the MDL Court as of Monday of this week. There were three separate law firms and six separate lawyers representing Smith & Nephew on that one uncontested document. These firms comprise a team of very experienced product liability lawyers who are going to assert every reasonable defense imaginable against both the BHR and the THA cases. They will continue to assert defenses even when they lose them the first time around. For example, Smith & Nephew sought complete dismissal of all the BHR cases and lost, but I predict they will re-urge the same basic defenses at later stages of the BHR cases. The same approach will be taken with the Federal Court THA cases. There will be constant battles about dismissal of BHR and THA cases on numerous legal and factual grounds. And while Smith and Nephew will surely trim the plaintiffs’ claims in both sets of cases, I’m confident the MDL Plaintiffs will ultimately see their BHR and THA claims survive these attacks.

STATE COURT LITIGATION UPDATE.

People filing new cases against Smith & Nephew are not limited to Federal Court. There is also the State Court Option, which is what I have always strongly preferred. A few cases were filed in various state courts this year, and more are expected soon. For various reasons, there are far more cases in Federal Court than in State courts, but a brief overview of the State court cases is necessary here for the sake of completeness.

The Smith & Nephew cases in State courts are primarily centered in two places – Tennessee and Texas. The Tennessee cases are in Shelby County, the U.S. home base for Smith & Nephew. In addition, I personally filed two cases in Texas courts this month. They are not drawing as much attention as their Federal counterparts, but I think they serve an important purpose in the grand scheme of things. Because of these state-filed cases, numerous depositions have already been taken and many thousands of internal company documents have been collected, perused, and carefully dissected.

There may be a relatively small number of State court cases in comparison to the Federal Court cases, but their momentum shows no sign of slowing. While MDLs are notoriously sluggish due to the volume and scope, state court cases are frequently free of the burden of all that additional baggage, and that is often where the most valuable discovery takes place. So far, there have been more depositions taken in State court cases than in the MDL. There are exciting times ahead in State court litigation! Mark my words.

While there have been many cases filed and large jury verdicts won against its competitors, Smith & Nephew has managed to avoid trials involving metal on metal hips implants thus far, and its MDL is still relatively new. I predict that the company’s lucky streak is coming to an end. Plaintiffs’ lawyers have them on the run in Federal and state courts. As with any new movement, it takes time and patience to organize. But now the Plaintiffs’ attorneys all have a common goal: to hold Smith & Nephew accountable for their inferior products and to provide justice for our clients who were unfortunate enough to trust a dangerous product. 2018 has been a good year for people with cases against Smith & Nephew, and the next year or so will probably be even better as we learn the inside story about how this company sold inferior metal hip products in America. I will be there asking questions of company witnesses and reading company documents, and I’ll continue to share some of that information here.

If you have any questions or comments about this or any of my blogs, contact me through the online forms at KipPetroff.com. Use the Contact Form for general questions, and use the Hip Implant Questionnaire if you have specific questions about your individual hip implant situation.

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