Kip Petroff 9 Comments

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.

— 9 Comments —

  1. Hi. My brother in law has a pending lawsuit against Smith and Nephew for two defective hips. I was wondering if you have any information on when you think they may start paying out settlements on these cases. Any information you may have will be very helpful to him. Thank you in advance, Kimberly

    • Hi Kimberly, I’m sorry to hear that your brother in law is having problems with Smith & Nephew hip implants. Unfortunately, he is not alone. As of this week’s count, there are almost 500 people nationwide with lawsuits against the company, and there is no end in sight.

      It is not possible to predict when his case will settle, if at all. My firm’s only focus right now is on trying to get Smith & Nephew cases to trial not settlement. Right now, the company is fighting every case and only seems interested in settling cheap (really cheap) or waiting until they are close to going to trial. This is a bad company with some very bad products, and I think they are worried about some of the cases. I think they are most worried about cases where their customer (i.e., your brother in law) sues the surgeon and the sales rep in addition to the company. They will probably try to blame the surgeon and the sales rep in every case where those two are not included in the case. There are valid claims against the surgeon and sales rep in many cases, and failing to sue them will make it harder for the consumer to win at trial, and that makes the company less willing to settle that case.

      You or anyone else with questions about Smith & Nephew cases should feel free to complete any of my online forms and I will gladly look at your individual situation and try to provide better answers if I have more information. Good luck.

  2. I’m a 45 year old male from ny.I have a mdl case in Baltimore with smith and nephew. I had 1 replacement and 2 revisions on the same hip. Also I was recorded with the 2nd highest level of metallosis poisoning in the country. I had to fill out a 250 page question form. Now they are picking at every little thing in my paperwork. Do they forget that there product failed 2 times and caused new health issues from the cobalt and chromium poisoning? I refuse to settle for chump change.

  3. I need a reference for an attorney in New York State if possible please. My father had Left hip replacement and also the Right hip in 2019. I need help finding a good attorney in his state.

    • I want to try to help you if possible, but I am a Texas lawyer. There are very few cases I would take in New York, and it would have to involve severe injuries from a certain type of Smith & Nephew implant. I know dozens of lawyers in New York and I will gladly try to find someone if you tell me the make and manufacturer of your dad’s implant. Hip implant lawyers tend to specialize in taking cases against certain manufacturers. The only types of cases I am taking these days involve certain types of Smith & Nephew hip implants. I have several cases against Smith & Nephew and I have several more coming to Court soon. Other lawyers similarly specialize in cases against other manufacturers. Tell me the manufacturer and I will probably know someone in New York who is handling those types of cases. Also, keep in mind that every case has a statute of limitations that applies to it. Your dad’s case is a guaranteed loser if it is not filed in Court on time. I hear from people all the time who have potentially good cases but they waited too long. You need to get going on this now if you think your dad may have a case. You can reply publicly so that other people may learn from this dialog or feel free to use my online Contact Form or Hip Implant Questionnaire if you prefer to reply privately. Good luck.

  4. I’ve had a terrible time with my hip I went to a lawyer and he’s done nothing to help me I’ve waited five years hoping to get my claim and then he fumbled and then the case was closed now I’m still fighting to try to get it open he doesn’t want to give me any money and I need to pay back Social Security I am so upset I could cry in fact I have cried many times I wanted to get 1.2 million I don’t think that’s asking a lot since I had my hip done in 2008 twice in 2019 and once in 2020 I don’t know what else to say but I’m really upset and hurt I’m hoping to get my money if I don’t then maybe I should go public because this is not fair to me they’re not a very good lawyer I thought they were and how stupid I was to think that they were going to be able to help me only they trying to rip me off well that’s my story I have more but I don’t want to take up anybody else’s time thank you for listening

    • It always breaks my heart when I hear of people who are victimized by a bad medical device and then they are victimized again when an inexperienced lawyer fumbles their case. Every lawyer who handles a products liability case will tell you these cases require a tremendous amount of time and attention. It also helps to have experience in that area of law. Too many lawyers take cases that they are not qualified to handle. The client is usually the one who ends up worse off for the experience. I recommend you get ready to “go public” as you say. You should “go public” about the lawyer and you should “go public” about the bad device. No company and no lawyer likes to see bad comments about them online. I recommend making sure your lawyer knows you are doing this before you do it. You may be pleasantly surprised how helpful he or she suddenly becomes if they realize you are ready to “going public”. Unfortunately, the same approach will not work with the medical device company. Most of them just don’t care about the individual people like you who get hurt from their bad products. Good luck.

  5. I’ve had a terrible time with my hip I went to a lawyer and he’s done nothing to help me I’ve waited five years hoping to get my claim and then he fumbled and then the case was closed now I’m still fighting to try to get it open he doesn’t want to give me any money and I need to pay back Social Security I am so upset I could cry in fact I have cried many times I wanted to get 1.2 million I don’t think that’s asking a lot since I had my hip done in 2008 twice in 2019 and once in 2020 this really sad

Leave a Reply

Your email address will not be published. Required fields are marked *