Kip Petroff No Comments

My law firm sues Smith & Nephew, its hip implant surgeons, and its sales reps when they put profits over patients. In fact, Smith & Nephew Metal on Metal hip implant injuries are the only cases my firm is working on these days.

Our emphasis is always the same: try to get the best result possible in the least amount of time possible. That is always the goal, for the good of the client. But today, in Federal Court, it became crystal clear that Smith & Nephew does not now, nor has it ever, put its patients first.

This highly profitable Trans-Atlantic corporation is avoiding the courtroom, thus their responsibility, throughout the United States. This is despite selling tens of thousands of unapproved hip implants to American consumers! The corporation took advantage of our regulatory system, and now it is doing everything it can to deny justice to those injured by its negligence and greed.

This blog only addresses the Smith Nephew hip cases where a “total hip replacement” occurred. It does not apply to the “Birmingham Hip Resurfacing” cases.

The Federal Court Slow Down.

I have explained previously that there are generally only two types of products liability cases in America: (1) those filed in Federal Court and (2) those filed in State Court. For the benefit of our clients, my firm has closely monitored both for years.

A Federal Court pleading filed today indicated that there are 638 Smith & Nephew cases in the Federal Court system and only twelve cases filed against it in the state court system – that includes all fifty states and U.S. Territories. That means that roughly one in fifty Smith & Nephew hip implant cases are filed in state court. Is that a good thing for the patient with a bad hip? In my opinion, it is not. Can you do something about it if you have a bad Smith & Nephew hip? Yes. Let me explain.

Many of the potential Smith & Nephew hip implant cases have the potential to be very strong. Yet new cases are filed weekly that do NOT include everyone who should be sued. This is a mistake.

There are two major reasons. First, the company’s very predictable strategy is to improperly divert the state cases to Federal Court. Why? Because this benefits the company, and that is good enough for me to want a state court venue whenever possible. And secondly, many of the surgeons knew that the implants were not approved for the surgery they performed. In fact, the only way to qualify for the Federal consolidated litigation is to have an unapproved combination of parts.

“The State Court Option” for Smith & Nephew THR cases.

Most of the hip implant lawsuits filed against Smith & Nephew are NOT filed against the implanting surgeon. Even fewer involve a lawsuit against the aggressive and often deceptive sales rep, who likely encouraged the use of the implant. I usually advise my clients to sue the surgeon if he or she knew the implants were not FDA-cleared for the surgery in question. Same thing goes for the sales rep. He (or she) definitely knew; demand accountability.

I frequently receive emails or phone calls from people wanting to know why their case is taking so long. From my perspective, it is usually easy to see what the problem is and why they are having delays. It is usually because the case was filed in the slow-moving “Multi-District Litigation” (“MDL”) that is pending in Federal Court in Baltimore, Maryland. At last count (yesterday), there were 638 cases filed in the MDL, and predictions are that the number will rise to over 800 before the end of the year. New cases filed into the MDL are generally put into line behind all the older, previously-filed ones. Worse, the THR cases are filed into a separate line that are moving at an even slower pace than the BHRs.

Failure to sue the Surgeon or Sales Rep will haunt you in years to come.

But it isn’t just the snail’s pace of the MDL that makes the state court option a preferred strategy. THR cases ALL involve a situation where the implanting surgeon and the commission-based company salesmen had to have known its FDA status. After waiting years to get your case teed up for trial in Federal Court, you have your day only to realize that two of the three responsible entities were not even sued!

Your THR case against Smith & Nephew always involves the following set of indisputable facts:

  1. Company Warned. The company instructed your doctor in writing that the combination was not approved by the FDA. In five years, every case I’ve seen has involved that warning.
  2. Sales Rep Knew. The sales rep knew its FDA status before the device was implanted in you. He or she also knew there were alternative products that were FDA approved.
  3. Surgeon Should have known. There was nothing secretive or mysterious about the THR device implanted inside of you. Its packaging clearly informed the surgeon that the parts were not approved for a THR. The writings that were inside the clearly marked boxes provided this same information. What was your surgeon thinking, you may wonder? Well, do you really want to wait a few years to find out?

LOOK BEFORE YOU LEAP INTO FEDERAL COURT.

New cases continue to be filed incorrectly alleging that Smith & Nephew kept surgeons in the dark about unapproved hip implants. This dilutes the strength of the products liability cases nationwide and is not supported by the facts. The surgeons knew. They were warned at various points along the way, and if they did not know, they were careless. Either way, you deserve to ask what happened. Why did the sales rep put profits over your health? Why did the doctor implant an unapproved device and ignore written warnings?

Look Before You Leap into a Federal Court Slowdown.

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